Flowers v. Roberts, 73833

• Decision Date: 13 October 1998
• Docket Number: No. 73833,73833
• Citation: 979 S.W.2d 465
• Parties: Junior FLOWERS and Jan Flowers Respondents, v. Jack ROBERTS and Shirley Roberts, and Ronald R. Hall, Sr. and Shirley Hall, Appellants.
• Court: Missouri Court of Appeals

Page 465

979 S.W.2d 465

Junior FLOWERS and Jan Flowers Respondents, v. Jack ROBERTS and Shirley Roberts, and Ronald R. Hall, Sr. and Shirley Hall, Appellants.

No. 73833.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 13, 1998.

Melissa J. Blevins, Clinton B. Roberts, Tom R. Burcham, Roberts, Roberts & Burcham, L.L.C., Farmington, for appellants.

John L. Oliver, Jr., Oliver, Oliver & Waltz, P.C., Cape Girardeau, for respondents.

RICHARD B. TEITELMAN, Judge.

This appeal arises from a boundary-line dispute between adjoining northern and southern landowners. Plaintiffs, Junior and Jan Flowers, brought an action against defendants, Jack and Shirley Roberts and Ronald and Shirley Hall, for trespass and to quiet title in a disputed tract of land plaintiffs claimed by adverse possession. Defendants brought counterclaims against plaintiffs for trespass and removal of timber. The trial court entered judgment in favor of plaintiffs on their adverse possession and trespass claims and against defendants on their counterclaims. Defendants appeal. We reverse in part and affirm in part, finding that plaintiffs failed to establish ownership under a theory of either adverse possession or boundary by acquiescence, and that defendants' counterclaims are barred by statute of limitations.

Facts

We view the evidence in the light most favorable to the trial court's findings.

The disputed tract is a fifteen hundred forty (1540) foot long by approximately eighty-eight to ninety (88 to 90) foot long rectangular strip of land which lies in a rural, wooded area of Section 22, Township 29 North, Range 1 East, Reynolds County, Missouri. ^{1 1} It is situated along the common boundary of the parties. As the trial court noted, the dispute involves the location of the east-west running center line that divides the North Half and the South Half of the Northeast Quarter of Section 22, and that likewise divides the North Half and the South Half of the Northwest Quarter of Section 22. The parties have made precise review more difficult by failing to provide us with a complete map or survey of the area in question. Our own not-to-scale map is now presented as an appendix.

Let us begin by first examining the parcels of land the respective parties own, and when they each acquired those parcels. In 1980, defendants Mr. and Mrs. Hall acquired their property from one James Hackworth. The Halls' parcel is 80 acres, consisting of the South Half of the Northwest Quarter of Section 22. On March 8, 1984, defendants Mr. And Mrs. Roberts purchased their parcel from a Mr. Jenkins, consisting of the South Half of the Northeast Quarter of Section 22. Plaintiffs' parcel consists of the North Half of the Northeast Quarter of Section 22, and the northeast quarter of the Northwest Quarter of Section 22. Plaintiffs first occupied and utilized this land in January of 1983, as tenants, for the purpose of running cattle and timber operations. They subsequently purchased the land on March 13, 1984, from a Mr. and Mrs. Lancaster.

At trial, there was evidence of several stone pile monuments erected as corner boundary markers, and testimony that these monuments marked a boundary line which, for many years, had been recognized and accepted by all of the parties' predecessors in interest as being the "true" north/south dividing line between the Flowers property to the north and the Hall and Roberts properties to the south. The trial court accepted this evidence as true, and also found that neither the Roberts nor the Halls ever had any clear and definite understanding, at the time each of them acquired their respective properties, as to their northern boundary line.

In March of 1984, a week or two after he had purchased his tract, plaintiff Flowers bladed and bulldozed a dirt road along almost the entire length of what he believed to be his south boundary line, from the electric utility easement on his east to his southwest corner. He built this road adjacent to, and on the inside of, the line marked by the stone pile monuments. He also at that time cut down the timber along this swath and sold it, and put blaze marks on some of the remaining trees bordering the dirt road.

Thereafter, until 1993, plaintiffs' only possessory acts with respect to the disputed tract consisted of some efforts aimed at maintaining the dirt road, as well as driving over the property several times a year every year in motor vehicles.

In April of 1993 plaintiff Junior Flowers built a fence, which paralleled the dirt road and ran along what he believed to be his southern boundary line. Extending for approximately 1540 feet from the electric utility easement on the east to plaintiffs' assumed southwest corner on the west, the fence was adjacent to and just on the inside of the line marked by the stone pile monuments.

In June of 1993, defendant Jack Roberts entered onto the disputed tract and partially cut down this fence. At about the same time, plaintiff Flowers received a letter from defendant Roberts' attorney, notifying him that Roberts considered the fence to be on his property and demanding that he cease and desist from any further fence construction or other acts of trespass.

In response, plaintiff Junior Flowers ordered a survey to be performed of the area running along the fence line. However, this survey was limited to the fence line area located in the Northeast Quarter of Section 22, which abutted the Roberts property, and did not include any portion of the fence line lying in the Northwest Quarter of Section 22, which abutted the Hall property.

The survey was performed by a registered surveyor. It showed that the line marked by the stone pile monuments, along the fence line, was located approximately 88 1/2 to 90 feet south of the actual east-west center line of the Northeast Quarter of Section 22, the line which divides the North Half of that Quarter from the South Half.

Thereafter, on November 13, 1996, plaintiffs filed this action against both the Halls and the Roberts. It sought to quiet title to the disputed tract, which plaintiffs claimed to own by adverse possession. It further sought damages in trespass, solely against defendant Roberts, for removing the fence. Both defendants filed answers and counterclaims against plaintiffs, seeking damages for trespass and for alleged removal of timber in violation of Section 537.340 RSMo 1994.

A non-jury trial was held on August 26, 1997. The trial court entered its judgment shortly thereafter, awarding plaintiffs ownership of the disputed tract by adverse possession, as well as damages in the amount of $3080.00 for cutting the fence. The judgment also denied the counterclaims of both defendants, the Halls and the Roberts. Defendants now appeal.

Discussion

I.

When reviewing a court-tried case, we adhere to the principles set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court's judgment will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or misapplies the law. Id. Further, we defer to the trial judge's superior ability to assess the credibility of the witnesses. Brinner v. Huckaba, 957 S.W.2d 491, 494 (Mo.App. E.D.1997).

Defendants' first point on appeal contends that the trial court erred in awarding plaintiffs title to the disputed tract through adverse possession because the evidence failed to establish any of the required elements of adverse possession, with respect to either plaintiffs themselves or their predecessors in title.

To establish title to a tract of land by adverse possession, a claimant must prove by a preponderance of evidence that his possession of the land was (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. Conduff v. Stone, 968 S.W.2d 200, 203 (Mo.App. S.D.1998). The claimant may tack his adverse possession to that of his predecessors in title to establish the requisite ten years period. Id. In determining whether the facts in evidence warrant a finding that the elements of adverse possession have been satisfied, each case must be decided in light of its own unique circumstances, and much depends on the location, the character, and the use to which the land in question can reasonably be put. Teson v. Vasquez, 561 S.W.2d 119, 125 (Mo.App. E.D.1977). A claimant's failure to establish any one of the elements of adverse possession will necessarily defeat the claim. Witt v. Miller, 845 S.W.2d 665, 667 (Mo.App. E.D.1993). In the context of adverse possession, these necessary possessory elements have been defined as follows:

"Hostile and under claim of right" means that the possession must be opposed and antagonistic to the claims of all others, and the claimant must occupy the land with an intent to possess it as his or her own. Brinner v. Huckaba, 957 S.W.2d at 494. Whether possession is hostile and under claim of right is a question of intent, though such intent may often be inferred from the claimant's acts of dominion over the land. Id. at 495. See also Kitterman v. Simrall, 924 S.W.2d 872, 876 (Mo.App. W.D.1996).

"Actual" possession is manifested by acts of occupancy which indicate a present ability to control the land and an intent to exclude others from such control. Szombathy v. Shell Oil Co., 676 S.W.2d 15, 18 (Mo.App. E.D.1984). Whether possession is "actual," and the kinds of acts which will constitute such possession, depends on the nature and location of the property and the possible uses to which it can be put. Whiteside v. Rottger, 913 S.W.2d 114, 120 (Mo.App. E.D.1995); Witt v. Miller, 845 S.W.2d at 668.

The element of "open and notorious" possession is satisfied when there are "visible acts of ownership" exercised over the disputed property. Witt, 845 S.W.2d at 668. The reason the law requires that possession be "open and notorious" is to afford the owner...