Cunningham v. Hughes, WD

• Citation: 889 S.W.2d 864
• Decision Date: 11 October 1994
• Docket Number: No. WD,WD
• Parties: Charles N. CUNNINGHAM, Respondent, v. Morgan G. HUGHES, Appellant. 49047.
• Court: Missouri Court of Appeals

Page 864

889 S.W.2d 864

Charles N. CUNNINGHAM, Respondent, v. Morgan G. HUGHES, Appellant.

No. WD 49047.

Missouri Court of Appeals,

Western District.

Oct. 11, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 29, 1994.

Application to Transfer Denied

Jan. 24, 1995.

James J. Wheeler, Keytesville, for appellant.

Lester E. Adams, Browning, for respondent.

Before ELLIS, P.J., and BERREY and SMART, JJ.

ELLIS, Presiding Judge.

On February 3, 1992, Charles W. Cunningham filed a three count petition against Morgan G. Hughes in Macon County Circuit Court. In Count I, he asked the court to find and declare title to certain real estate situated in Macon County. Count II alleged trespass and Count III sought damages for trespass. In due course, Hughes filed an answer and a counterclaim in which he asked the court to quiet and determine title to the 18 acre tract which was the subject of Cunningham's petition. He asserted he had acquired title to the property by adverse possession.

The real estate in question consists of approximately 18 acres, is situated in northern Macon County and forms a strip that lies north of east-west Macon County Road 416 and south of the Macon-Adair County line. In 1989, Cunningham purchased 291 acres of real estate from Donald Wolf, the legal description of which, and the deed for, includes the 18 acres. Macon County Road 416 runs across Cunningham's 291 acre tract, with the 18 acre parcel thus separated from the main body of the 291 acres by Road 416. Hughes, on the other hand, owns 225 acres in Adair County, which is contiguous with the 18 acres on the north side, but the deed for which does not include the 18 acres. Both the Cunningham and Hughes properties were owned by a single owner, Albert Wolf, ¹ at one time. Hughes had rented the 225 acres he now owns from Albert Wolf from 1965 until 1968 or 1969, when he purchased the land. When he leased the property, and from the time he purchased it until shortly before this action was commenced, the 225 acres and the 18 acres in dispute were enclosed by a single fence.

The parties agree that the strip is wild brushy land and is of little use except for hunting. The barbed-wire and post fence which enclosed Hughes' 225 acres and the 18 acres in dispute ran along the north side of Road 416. It was in existence in 1989 when Cunningham purchased his 291 acres, but was removed in about 1990. In January, 1992, Hughes erected a single-wire electric fence a few feet north of Road 416, thereby asserting title to the strip. This fencing triggered the filing of Cunningham's petition.

Trial was to the court sitting without a jury. The trial court entered written Finding of Facts and Conclusions of Law. It found that Hughes had failed to prove that Cunningham, the record title holder, and his predecessors in title, had not been in possession of the property for more than ten years prior to the filing of the case. The court cited Cunningham's recorded title, payment of taxes and allowing people to hunt and remove timber from the property as evidence of Cunningham's possession of the property. Furthermore, the court found that Hughes had failed to prove title by adverse possession because Hughes' use of the land was not exclusive in light of the finding that Cunningham had shown he was in possession, at least to some extent, in the previous years. The court awarded Cunningham declaratory judgment on his title and an injunction against Hughes. It also awarded Cunningham nominal damages. Hughes appeals this decision.

Appellate review of a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court will be affirmed by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id.

Hughes presents two points on appeal. He claims that the trial court erroneously stated and applied the law in finding that Cunningham and his predecessors were in possession of the parcel within ten years of commencement of the action. He also claims the trial court's finding that Cunningham was the owner of the parcel has no substantial evidence to support it and that it is against the weight of the evidence.

"[T]he record title to wild and vacant land raises the presumption that the possession is in the record owner." Brannock v. McHenry, 252 Mo. 1, 158 S.W. 385, 387 (1913) (citation omitted). See also Fiorella v. Jones, 259 S.W. 782, 785 (Mo.1923) (citations omitted) ("Inasmuch as the record title, as a matter of law, was in the plaintiff, and defendant claimed title only by virtue of adverse possession, the burden of proof was properly put upon the defendant to show that he, and those claiming under him, had knowingly held adverse possession of such property for ten years before the suit was commenced."). Since Cunningham is the undisputed record title holder to the strip of land, the burden was on Hughes to prove his counterclaim that he had acquired title by adverse possession.

"To acquire title by adverse possession under § 516.010, RSMo 1986, the party claiming through this principle must prove the concurrent existence of five elements. The possession must be (1) hostile, that is under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous, for ten years prior to commencement of the action to perfect title by adverse possession." A. Charles Bussen Trust v. Kertz, 723 S.W.2d 922, 927 (Mo.App.1987) (citations omitted); § 516.010, RSMo 1986. ² Failure to prove even one element defeats the claim. Witt v. Miller, 845 S.W.2d 665, 667 (Mo.App.1993).

Hughes presented evidence regarding his own acts of possession, including allowing his cattle to graze on the strip, repairing a fence constructed by a predecessor, and giving permission to others to hunt and cut wood on the property. He argues that this evidence was sufficient to establish his title by adverse possession. However, the nature of the property determines the kinds of acts which constitute possession. In Edmonds v. Thurman, 808 S.W.2d 408 (Mo.App.1991), the real estate in dispute was "wild and undeveloped land." The court in that case said:

The intent to take actual possession of such land requires less actual exercise of ownership by affirmative act than is required when the land is suitable for cultivation. Even so, occasional possessory acts, such as occasional use of the land for pasture or gathering up firewood or similar isolated acts, amount to nothing more than occasional trespasses which do not establish adverse possession.

Id. at 410-11 (citations omitted). Furthermore, in Edmonds, the court found that maintenance by the party claiming adverse possession of an "old fence" constructed by a predecessor in title was not enough to establish adverse possession. Id. at 411. In addition, the Missouri Supreme Court held in Miller v. Warner, 433 S.W.2d 259, 265 (Mo.1968), that while tending to show a claim of ownership, "pasturing of cattle or cutting timber do not in themselves establish adverse possession." ³

Furthermore, Hughes' argument misses the mark because, even if his acts of possession were enough to establish title by adverse possession, he must prove his possession was exclusive. This necessarily involves a showing that he "entirely excluded" the record owner. Fiorella v. Jones, 259 S.W. at 785.

The rightful owner cannot be deprived of his title by the possession of another, although such other person clams [sic] to own it, if the rightful owner is also in possession...