Boese v. Crane

• Decision Date: 12 April 1958
• Docket Number: No. 40887,40887
• Citation: 182 Kan. 777,324 P.2d 188
• Parties: Otto J. W. BOESE and Almeda A. Boese, his wife, Appellants, v. Harry Lyle CRANE and Betty J. Crane, his wife, Appellees.
• Court: Kansas Supreme Court

Page 188

324 P.2d 188

182 Kan. 777

Otto J. W. BOESE and Almeda A. Boese, his wife, Appellants, v. Harry Lyle CRANE and Betty J. Crane, his wife, Appellees.

No. 40887.

Supreme Court of Kansas.

April 12, 1958.

Syllabus by the Court

1. The record is examined in an ejectment action in which the defendants claimed title by adverse possession, and it is held: That the finding of the trial court that the defendants and their predecessors acquired title by adverse possession is supported by substantial competent evidence.

2. In case of doubt as to whether occupant of land claims adversely, under claim of right, so as to acquire title by adverse possession, it is a question of fact to be determined by the trial court upon the evidence presented.

3. On appeal, findings of fact will not be disturbed if supported by substantial competent evidence, and in a determination of that question the appellate court does not weigh the evidence but is concerned only with whether it supports the findings made by the trial court.

4. Where all the controlling evidence presented in the trial of a case is written in form, it is the duty of the appellate court to determine its import after a review of the record in its entirety, substantially as it would in an original case. The rule does not apply where a part of the evidence material to the issue has been presented by depositions and a part by oral testimony.

5. The test as to whether or not the possession of real estate beyond the true boundary line will be held adverse is the intention with which the party takes and holds possession. Intention to claim adversely may be manifested either by words or acts, or both.

6. No paper evidence of a transfer of possession of land held under a claim of adverse possession is necessary. Where the possession of real estate is actual, it may commence in parol, without deed or writing, and may be transferred and passed from one occupant to another by a parol bargain and sale accompanied by delivery.

7. Declarations made by a person claiming title by adverse possession, while he is in possession of the property, serve to show the character of the right he was asserting and are admissible in evidence as verbal parts of his act of occupation, they being a part of the res gestae.

Buford E. Braly, Kansas City, argued the cause and was on the briefs for appellants.

J. E. Schroeder, Kansas City, argued the cause, and Arthur J. Stanley, Jr., Lee E. Weeks and Leonard O. Thomas Kansas City, were with him on the briefs for appellees.

SCHROEDER, Justice.

This is an action in ejectment wherein plaintiffs seek to eject defendants from a small tract of land occupied by the defendants' garage. The parties waived a jury. Trial was had to the court and judgment rendered against the plaintiffs for costs, whereupon appeal was duly perfected to this court.

The question presented is whether defendants acquired title to the land upon which the garage was situated by adverse possession.

The property of the appellants (plaintiffs) is located at 1712 Cleveland Avenue, Kansas City, Kansas. Adjacent to this property on the east at 1710 Cleveland is the property of the appellees (defendants). These properties face the street to the south.

In May, 1925, Frank Dimsdale and his wife, Myrtle Dimsdale, purchased the property at 1710 Cleveland and lived there until approximately August, 1954, when they sold the property to the defendants. In May, 1944, the plaintiffs purchased the property at 1712 Cleveland on an option contract. On the 6th day of September, 1951, the plaintiffs completed payments on their contract and received a warranty deed for the property. The plaintiffs have had possession of their property since the year, 1944, and have paid taxes thereon since that time.

The only survey introduced in evidence was made at plaintiffs' request on the 25th day of April, 1955, and this action was filed on May 2, 1955. This survey, admitted to be correct, disclosed that the garage at the northwest corner of defendants' property encroached upon the land covered by plaintiffs' deed by a distance of 1.13 feet at the front and 1.6 feet at the back. The garage is 18.2 feet in length and the portion described has been occupying the property claimed by the plaintiffs since the year, 1925. The foregoing facts are not controverted by the parties. Therefore, the question of possession by the defendants and their predecessors in title for more than 29 years prior to filing this action is admitted.

This court has held that the location of a 'true line' by a survey does not determine title to real estate, the ownership of which is claimed by adverse possession. Edwards v. Fleming, 83 Kan. 653, 112 P. 836, 33 L.R.A., N.S., 923; and Wagner v. Thompson, 163 Kan. 662, 186 P.2d 278.

In an ejectment action, such as this, a general denial by way of answer puts the case at issue and the defendants are entitled to prove any fact that will sustain their own title or defeat that claimed by the plaintiffs. Tucker v. Hankey, 173 Kan. 593, 250 P.2d 784. The defendants' defense, among other things, is an assertion of adverse possession for more than 15 years.

The plaintiffs contend that possession alone is not sufficient to confer ownership but that the possession must be hostile, adverse, notorious, continuous and exclusive for a period exceeding 15 years, and title by adverse possession cannot be obtained where property is occupied under a mistaken belief as to the true boundary line where there is no evidenced intention to hold beyond the true line. Citing: Simpson v. Goering, 161 Kan. 558, 170 P.2d 831; and Wilson v. Pum Ze, 167 Kan. 31, 204 P.2d 723. This statement clearly indicates the issue between the parties to this appeal.

The question of adverse possession has been before this court many times and the law has become rather well settled. Where there is a doubt as to whether the occupant of land claims adversely, under claim of right, so as to acquire title by adverse possession, it is a question of fact to be determined by the trial court upon all the evidence presented. On appeal to this court, findings of fact will not be disturbed if supported by substantial competent evidence, and in a determination of that question this court does not weigh the evidence but is concerned only with whether it supports the findings made by the trial court. Tucker v. Hankey, supra; and Truck-Trailer Supply Co., Inc., v. Farmer, 181 Kan. 396, 311 P.2d 1004.

This court has recognized that under certain circumstances when the evidence is written, documentary in character, or in the form of depositions or transcripts its duty is to decide for itself what the facts establish, substantially as it would in an original case. In re Estate of Kemper, 157 Kan. 727, 145 P.2d 103; In re Estate of Besse, 163 Kan. 413, 183 P.2d 414; and White v. Turner, 164 Kan. 659, 192 P.2d 200.

The testimony of Mr. and Mrs. Dimsdale in the trial court was in the form of depositions. All other witnesses were present and testified in person. It is urged that this court apply the foregoing rule in reviewing the decision of the trial court, that is, to treat the case as if it were an original case. This rule, however, is not universally applied under all conditions. It has been applied where all the evidence is in written form (White v. Turner, supra); where the only oral testimony adduced has little, if any, bearing upon the principal question presented and all other evidence is in written form (In re Estate of Kemper, supra); but has not been applied to testimony written in form where the court would be called upon to disregard the testimony of one witness and accept as true the testimony of others (Bolin v. Johnson County Nat'l Bank, 160 Kan. 61, 159 P.2d 477 [deposition testimony]; Karlan Furniture Co. v. Richardson, 182 Kan. ----, 324 P.2d 180 [stipulated testimony]; and see, also, Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P.2d 180).

The circumstnaces in the present case do not call for an application of the rule urged by plaintiffs, where all of the evidence is in written form. The ordinary rule, giving credence where the trial court gave credence, as in Tucker v. Hankey, supra, and Truck-Trailer Supply Co. Inc. v. Farmer, supra, must control this decision. All of the plaintiffs' witnesses testified in person and all of the defendants' witnesses except Mr. and Mrs. Dimsdale testified in person. The deposition testimony of the Dimsdales was corroborated in many respects by one of the defendants' witnesses, and the testimony of the plaintiff, Otto Boese, insofar as the issue in this case is concerned, was contradictory to the plaintiffs' evidence. Should the rule propounded by plaintiffs apply, a reversal would require this court to give credence to the testimony of Otto Boese, when as a matter of fact it is apparent that the trial court rejected his testimony. The trial court had the opportunity to observe each of the witnesses who testified in person and familiarize himself with their demeanor on the witness stand, their interest in the controversy, and the greed and avarice manifested by each.

Under these circumstances plaintiffs' specification that the trial court erred in believing the evidence contained in the depositions of Frank and Myrtle Dimsdale is without merit.

Whether the trial court erred in ruling that the evidence of the defendants was sufficient to establish adverse possession requires a review of the evidence. The record, as abstracted, before this court is silent as to whether the trial court made findings of fact and conclusions of law. We have before us only the judgment and what inheres in it. The judgment for the defendants indicates a general finding in their favor. It is settled that a general finding made by a trial court determines every controverted question of fact in support of which evidence has been introduced. Further, a general finding by the trial...