DeShon v. St. Joseph Country Club Village of the Country Club, WD

• Decision Date: 17 May 1988
• Docket Number: No. WD,WD
• Parties: Caswell DeSHON, Richard Bolen and Jim Riley, Appellants, v. ST. JOSEPH COUNTRY CLUB VILLAGE of the COUNTRY CLUB, Respondent. 40040.
• Court: Missouri Court of Appeals

Page 265

755 S.W.2d 265

Caswell DeSHON, Richard Bolen and Jim Riley, Appellants, v. ST. JOSEPH COUNTRY CLUB VILLAGE of the COUNTRY CLUB, Respondent.

No. WD 40040.

Missouri Court of Appeals, Western District.

May 17, 1988.

As Modified July 28, 1988.

Application to Transfer Denied Sept. 13, 1988.

John E. Turner, Popham, Conway, Sweeny, Fremont & Bundschu, Kansas City, Ronald R. Holliday, Savannah, for appellants.

Frank K. Nichols, Pope, Nichols & Hicks, St. Joseph, for respondent.

Before NUGENT, P.J., and CLARK and LOWENSTEIN, JJ.

CLARK, Judge.

Three owners of residential lots sued the St. Joseph Country Club for damages and for injunctive relief on allegations that the Country Club had failed to maintain a drain used to convey surface water under the embankment of an abandoned railroad right-of-way. The blockage of the drain caused surface waters to accumulate on plaintiffs' properties with resulting damage. The petition sought to recover for that damage and to require that the Country Club service and maintain the drain. The Country Club moved for summary judgment on the basis that the drain was not on property owned by it and therefore it was not responsible for the condition of the drain. The trial court agreed and the lot owners appeal the summary judgment entered against them.

Certain facts as to the title history of the property are not in dispute. In 1910, the then owners of a larger tract conveyed a strip of land sixty feet in width to the St. Joseph and Savannah Railway for right-of-way purposes upon condition that title would revert to the grantors at such time as the ground was no longer used for railway purposes. The rail line was in fact abandoned in 1939 at which date the abutting property owners who had succeeded to the interests of the original grantors in the 1910 deed were the State of Missouri on the south, where Highway 59 is located, and the Country Club and appellants, together with other subdivision lot owners, on the north. At the location of the subject drain, appellants are the owners of the land which abuts the abandoned right-of-way on the north. The abutting ownership of the Country Club commences some distance to the west. The highway property of the state continues as the abutting property along the length of the right-of-way on the south.

In 1953, the Country Club undertook to buy from the heirs of the original grantors in the 1910 deed the full sixty foot width if the right-of-way which abutted their property. This segment, which did not include the portion of the strip abutting appellants' land, did not include the subject drain. The heirs, however, were unwilling to sell only a portion of the strip. The parties thereupon reached agreement for a sale of the entire strip, sixty feet in width, including all of the property which had in fact reverted to the Country Club, in part, to appellants, in part, and to the State of Missouri, in part, on abandonment of the railroad usage. A deed in conformity with this agreement was executed and plaintiffs' petition alleged, and the Country Club does not dispute, that during this time, Country Club employees have cleared brush from the land and have maintained the drain in question.

The motion by the Country Club for summary judgment was based on the contention that no case of liability could be made against it for failure to maintain the drain because it did not own the land on which the drain was situated. In support of the motion, the Country Club relied on the facts stated above and it also cited cases which hold an easement for railroad right-of-way terminates when the rail line is abandoned and fee simple title, unburdened by the easement, reverts to the abutting property owners. Weeks v. Missouri Pacific Railroad, 505 S.W.2d 33, 36 (Mo.1974); Brown v. Weare, 348 Mo. 135, 143, 152 S.W.2d 649, 654-55 (1941). Because the Country Club and the subdivision lot owners, together with the State of Missouri, owned the abutting land in 1939 when the railroad was abandoned, the heirs from whom the Country Club purported to acquire title in 1953 had no ownership interests to convey. City of Columbia v. Baurichter, 729 S.W.2d 475, 482 (Mo.App.1987); Bray v. St. Louis-San Francisco Railway, 310 S.W.2d 822, 824 (Mo.1958).

The Country Club contended that the deed under which it has in the past claimed to own the land where the drain is located in fact conveyed no ownership because the grantors themselves had no title. It asserts that appellants actually own the ground as the abutting owners or as successors in interest to the abutting owners as of the date the right-of-way was abandoned. This contention overlooks or ignores the consequences of the Country Club's conduct during more than thirty years when it occupied and claimed to own the land in question. Such conduct operated to raise an issue of ownership of the land where the drain is located and to entitle appellants to adduce evidence from which they may show that title to the north thirty feet of the strip abutting appellants' land has become vested in the Country Club by adverse possession.

The elements of adverse possession are possession that is (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive and (5) continuous for a period of ten years. Vecchiotti v. Tegethoff, 745 S.W.2d 741, 743 (Mo.App.1987). The essential requirement of adverse possession is that the possessor's occupancy be truly adverse and in opposition to the title of the record owner. The claimant must occupy the...