Crone v. Nuss

• Court: Kansas Court of Appeals
• Writing for the Court: Before BUSER, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
• Citation: Crone v. Nuss, 46 Kan.App.2d 436, 263 P.3d 809 (Kan. App. 2011)
• Decision Date: 09 September 2011
• Docket Number: No. 104,342.,104,342.
• Parties: Irvin A. CRONE and Carolyn Crone, husband and wife, Appellants,v.Fred NUSS, Appellee,Richard Brocher and Marla Brocher, husband and wife, Defendants,andMagdalene Hott, et al., Appellees.

46 Kan.App.2d 436

263 P.3d 809

Irvin A. CRONE and Carolyn Crone, husband and wife, Appellants,

v.Fred NUSS, Appellee,Richard Brocher and Marla Brocher, husband and wife, Defendants,andMagdalene Hott, et al., Appellees.

No. 104,342.

Court of Appeals of Kansas.

Sept. 9, 2011.

Syllabus by the Court

1. Annual or occasional entries on unenclosed land to cut hay are not sufficient to warn the legal owner that the person cutting the hay did so under a claim of right or title.

2. The requisite of exclusive possession for acquisition of title by adverse possession is not satisfied if occupancy is shared by the owner or with agents or tenants of the owner.

3. The true owner can successfully interrupt the claimant's unwarranted but otherwise continuous adverse possession either by obtaining judgment against the claimant or by entering the disputed property in an open manner with intent to take and hold possession effectively, excluding the possessor.

4. A true owner's entry will toll the statute of limitations if his or her acts of dominion are such that they put a reasonably prudent person on notice that the true owner's purpose is to resume possession of the land and that such person actually has been ousted.

5. An oral protest by an owner against occupancy of his or her land by an adverse holder, without actual entry or other overt action, is without effect because the owner is still disseised.

6. In a suit to quiet title by one in possession of real property under an adverse claim, an answer by the defendant disputing the plaintiff's title will suspend the plaintiff's possession from the date of the answer, provided the answer is successfully prosecuted in action.

Steven E. Johnson, of Bauer, Pike & Johnson, Chtd., of Great Bend, for appellants.Donald F. Hoffman, of Dreiling, Bieker & Hoffman LLP, of Hays, for appellees.Before BUSER, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.ARNOLD–BURGER, J.

Irvin A. Crone and Carolyn Crone commenced an action to quiet title to 48.5 acres in Barton County (disputed land) to which Fred Nuss and Magdalene Hott (Magdalene Hott is deceased, hereinafter the Hott Trust), and others, hold the deed. The Crones claim ownership by adverse possession. The Crones appeal the trial court's determination that they did not present sufficient evidence to establish their right to title by adverse possession. Finding that the trial court did not arbitrarily disregard undisputed evidence or exhibit undue bias, passion, or prejudice in reaching its decision, we affirm. In addition, we find the trial court did not abuse its discretion in denying the Crones' posttrial motion to present additional evidence in an attempt to show that Nuss and the Hott Trust were not the actual owners of the disputed land.

Adverse Possession: In General

Before we begin our discussion of this case, a brief review of the doctrine of adverse possession is in order. The legal theory of adverse possession provides that an owner of land may lose the title to the land if he or she fails to eject trespassers promptly. If the trespasser uses the land as his or her own for the length of time specified in the state's statute of limitations and satisfies any additional statutory requirements, the owner is barred from recovering possession of the land from the trespasser. In other words, by failing to protect his or her rights of ownership, a landowner acquiesces in the transfer of ownership to one who has fulfilled the requirements of the statute. See Buchanan v. Rediger, 26 Kan.App.2d 59, 62, 975 P.2d 1235, rev. denied 267 Kan. 888 (1999). Many reasons have been propounded for this longstanding legal doctrine, including encouraging absentee owners to monitor the land and keep it productive, as well as providing marketable title by quashing old claims inconsistent with the current record. See Stake, The Uneasy Case for Adverse Possession, 89 Geo. L.J. 2419 (August 2001).

In Kansas, as in most states, the requirements for a claim of adverse possession are governed by statute.

“No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years. This section shall not apply to any action commenced within one (1) year after the effective date of this act.” K.S.A. 60–503.

Under the statute, the trespasser may be under a good-faith belief that he or she actually owns the property or may be exerting a claim to the property that is knowingly adverse to the owner. The adverse possession statute serves as a statute of limitations, prohibiting any claim to the property unless possession adverse to the owner has continued for at least 15 years. The typical method to determine whether the trespasser obtains title to the property is through an ejectment or trespass action by the owner or through a quiet title action by the trespasser. See K.S.A. 60–1001; K.S.A. 60–1002.

In this case, the Crones filed a quiet title action against Nuss, the Hott Trust, and Richard and Marla Brocher asking the trial court to award title to the disputed land to the Crones under a theory of adverse possession. The Crones do not claim a good-faith belief that they owned the property. Instead, they argue that they have exerted a knowingly adverse claim against the property for 15 years.

With that background, we proceed to review the facts of this case.

Factual and Procedural History

Although the parties offered conflicting evidence about the timing of events, the context of conversations that did (or did not) take place between them, and their respective uses of the disputed land, there is sufficient evidence in the record to support the following facts:

Irvin and Carolyn Crone, husband and wife, purchased approximately 60 acres of land in the fall of 1988. Their land is adjacent to 48.5 acres of land (disputed land) which has been owned by Nuss since he received the deed from his grandfather in 1968, although it is currently owned equally by both Nuss and the Hott Trust (hereinafter referred to jointly as Appellees). The Crones do not contest that they knew they did not own the disputed land.

From the closest road, the disputed land is located behind a solid group of trees and is only visible during the winter after the leaves have fallen. One can access the disputed land either on foot, by motorcycle, or with a four wheeler. The land is difficult to access. In fact, Nuss has discussed with county officials various methods to obtain better access.

The disputed land was inundated with Johnson grass, a noxious weed that grew from 3– to 10–feet tall. It is so prolific that, even if it is cut, it returns every year, sometimes twice, to the same height. Nuss had burned it off the property on occasion.

When they first purchased their land in 1988, the Crones immediately began cutting and baling the Johnson grass on the disputed land. Their stated purpose was to prevent the Johnson grass from spreading onto their purchased property. They used the bales of Johnson grass to bed and feed their horses. This continued until 1993. During this time, Nuss noticed some cutting of grass and baling, but it did not bother him.

Because of the thickness of the plum bushes, in 1993 the Crones started disking, or turning the soil, on the disputed land with tractors. In addition, to protect the cleared area from motorcycles and four wheelers, the Crones constructed fences to block access. They also blocked motorcycle access with round hay bales and trees. Finally, in 1993, the Crones started planting Sudan grass on the disputed land.

Also in 1993, Nuss asked David Essmiller to look at the disputed land with him and give his opinion regarding whether Nuss should farm it or if Essmiller wanted to farm it. While there, Essmiller did not see any no trespassing signs, new fencing, bales, farm equipment, or any indication of cultivation of crops. Essmiller told Nuss that he should leave the disputed land as a wildlife habitat.

During this time, both the Crones and Nuss gave people permission to hunt on the land. The person the Crones allowed to hunt on the land testified that from 1990 to 2004 he built his own deer stands and never saw any other deer stands. While on the disputed land, he believed it was apparent that somebody was farming the disputed land, and nobody ever told him that he was trespassing. Nuss gave his nephews and others permission to hunt on the land and in 2001 even went target shooting with his nephews on the land. They testified that in 2001 they did not see any farm equipment on the property and nobody told them they were trespassing. One of the nephews went back several more times over the next 7 years and was never told to leave.

Nuss drove by the disputed land about three times a week but could only see the trees. He also walked around the property annually. Nuss paid the property taxes on the disputed land and registered it every year with the Farm Service Agency (FSA) as being nonfarmable. Since 1974, Nuss leased it for oil and gas purposes.

In 1998, Nuss and his wife, Candace, visited the disputed land to see if they could build a home on it. When viewing the disputed land, Candace saw no indication of fencing designed to keep people out, no trespassing signs, equipment, or bales.

Beginning in 2003, and yearly thereafter, the Crones planted various crops, including wheat, alfalfa, and hay on the disputed land. At that point, things started to happen. The first time Nuss saw any evidence of farming was when he observed the 2003 wheat crop. In October 2003, Nuss, accompanied by an attorney and realtor, stopped Carolyn Crone on the road and asked her “if that was [their] wheat on that land over there.” Nuss told Carolyn that he knew the Crones had been trespassing and cutting hay for years on the land, but he did not give them permission to plant wheat...