Francis v. Rogers, 94,607.

• Decision Date: 04 December 2001
• Docket Number: No. 94,607.,94,607.
• Citation: 2001 OK 111,40 P.3d 481
• Parties: Gene H. FRANCIS and Mary Ann Francis, Plaintiffs/Appellants, v. Ira F. ROGERS, Susan K. Hendricks and Russell Rogers, and the Heirs, Executors, Administrators, Devisees, Trustees and Assigns of Lucille Rogers, deceased and the Unknown Successors of Lucille Rogers, deceased, Defendants/Appellees.
• Court: Oklahoma Supreme Court

40 P.3d 481

2001 OK 111

Gene H. FRANCIS and Mary Ann Francis, Plaintiffs/Appellants, v. Ira F. ROGERS, Susan K. Hendricks and Russell Rogers, and the Heirs, Executors, Administrators, Devisees, Trustees and Assigns of Lucille Rogers, deceased and the Unknown Successors of Lucille Rogers, deceased, Defendants/Appellees.

No. 94,607.

Supreme Court of Oklahoma.

December 4, 2001.

Richard A. Williams, Anadarko, OK, for Plaintiffs/Appellants.

Thomas R. Zynda, Anadarko, OK, for Defendants/Appellees.

KAUGER, J.:

¶ 1 The dispositive issue presented is whether the evidence supports the trial court's determination regarding title to the property on which the railroad right of way was located. It does not.

FACTS

¶ 2 This cause concerns a dispute over land on which a railroad once held a right of way. The dispositive issue involves the location of the boundary line between the adjoining landowners. Elbert C. Hedrick, and his wife Jessie Hedrick, and Vernon Hedrick and his wife Hazel Hedrick, (collectively, the Hedricks) owned land located in rural Caddo County, Oklahoma. A railroad right of way held by the Chicago Rock Island & Pacific Railroad and Railway Company ran north and south through the Hedricks' property, dissecting it into east and west tracts.¹

¶ 3 In 1962, the Hedricks sold the west tract to the defendants/appellees, Ira F. Rogers and his wife Lucille Rogers,² (collectively, the Rogers). The Rogers' deed described the property as "lying and situated West of the westerly line of the . . . [railroad] rightof-way."³ According to the testimony of the Rogers' son, sometime in 1963, the Rogers and the Hedricks constructed a permanent fence some distance east of the east side of the railroad right of way. The purported purpose of this fence was, contrary to the language of the Rogers' deed, to create a boundary line between the Rogers' property and the Hedricks' property.

¶ 4 The east tract of the Hedricks' property remained in the Hedricks family until 1990, when surviving Hedricks family members sold it to the plaintiff/appellants, Gene H. Francis and his wife Mary Ann Francis, (collectively, the Francises). The Francises took the property from surviving Hedricks family members by two deeds — a warranty deed⁴ and a guardian's deed.⁵ ¶ 5 The railroad stopped running trains on the right of way in the early 1980's. In October of 1985, the railroad attempted to convey its interest in the property through a quit claim deed to a third party, abandoning its right of way and reserving a temporary easement until December of 1986.⁶ Sometime after the Francises purchased their property in 1990, Gene Francis approached the Rogers about dividing the strip of land on which the railroad had held its right of way. The Rogers refused and the Francises filed suit on July 3, 1996.

¶ 6 The Rogers answered the petition and cross-petitioned, seeking a determination that the fence, rather than the railroad right of way, constituted the boundary line between the two tracts of property and that they owned the disputed property. They asserted that: 1) the fence, constructed in approximately 1962, was intended to serve as the boundary line between the east and west tracts of land; 2) they had conducted farming and grazing activities west of the fence since 1962 and had openly, notoriously, and adversely to the Francises and their predecessors in title possessed the property west of the fence; and 3) at the time the railroad abandoned its right of way, they had openly, notoriously, and adversely possessed the disputed property for approximately twenty years and upon abandonment of the right of way, it reverted to them as they were adjoining or abutting landowners.

¶ 7 On March 10, 2000, the trial court, Honorable Richard G. Van Dyck, entered an order quieting title to the Rogers. It found that: 1) the Rogers received title to the property west of the railroad right of way in 1962 and in 1963, they erected a fence some distance outside of the east side of the railroad right of way; 2) the fence was intended to serve as the boundary line between the Rogers' and the Francises' properties; and 3) since 1963, the Rogers have adversely possessed a narrow strip of land between the east side of the railroad right of way and the boundary line fence.

¶ 8 The trial court determined that because the Rogers, by adverse possession, owned a narrow strip of land east of the right of way they were the adjoining land owners to the east and to the west of the right of way. Consequently, when the railroad abandoned the right of way, it passed to the Rogers as adjoining landowners. The Francises appealed. The Court of Civil Appeals affirmed. We granted certiorari on June 7, 2001.

¶ 9 THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL COURT'S DETERMINATION REGARDING THE DISPUTED PROPERTY.

¶ 10 The Rogers argue that the trial court properly determined that they owned the property on which the railroad right of way was located. They contend that they owned a narrow strip of property some distance outside of the right of way between the fence and the east side of the right of way by adverse possession and consequently owned the right of way property as adjoining or abutting landowners. Alternatively, they insist that the fence erected on the east side of the right of way was intended to be the boundary line between the properties. The Francises assert that the evidence does not support the trial court's findings and its decision is contrary to law.⁷

A.

The Evidence was Insufficient to Establish Title to the Narrow Strip of Land East of the Railroad Right of Way by Adverse Possession.

¶ 11 We note at the outset that testimony at trial regarding the location of the fence dividing the properties was conflicting.⁸ No legal description of the right of way or survey of the properties was presented to the trial court. The trial court did not determine the width of the right of way or the distance between the track and the east fence. Nor did it determine the specific date on which the Rogers ultimately claimed title by adverse possession. However, it did find that the Rogers adversely possessed a narrow stip of land some distance outside of and east of the right of way for more than fifteen years prior to the railroad's abandonment of its right of way in 1986.

¶ 12 In adverse possession cases, the appellate courts will weigh evidence presented, but will not reverse the trial court's judgment unless it is against the clear weight of evidence.⁹ To establish adverse possession the claimant must show that possession was hostile, under a claim of right or color of title, actual, open, notorious, exclusive, and continuous for the full statutory period.¹⁰ The statutory period for title by prescription is fifteen years.¹¹ ¶ 13 Furthermore, possession must be open, visible, continuous, and exclusive, with a claim of ownership that notifies persons seeking information upon the subject that the premises are not held in subordination to any title or claim of others, but against all titles or claimants.¹² Acquisition by prescription is disfavored, and not to be made out by inference.¹³ The party claiming title adversely has the burden of proving every element by clear and positive proof.¹⁴ In questionable cases, presumptions favor the record title holder.¹⁵

¶ 14 Although testimony regarding the year in which the trains quit running was disputed, the trial court determined that the railroad did not abandon its right of way until 1986. Consequently, to establish adverse possession, the Rogers had to show clearly and positively that they had open, notorious, hostile and exclusive possession of the narrow strip of land in controversy for an uninterrupted and continuous period of fifteen years.

¶ 15 At trial, the Rogers argued that they possessed and occupied the strip of land by farming it and running cattle on it from the time the fence was erected in 1962. In support of their argument, they relied upon the testimony of three witnesses — their son, their daughter and her husband. The Rogers' son testified that: after the east fence was constructed in 1963, the Hedrick's never indicated a right to use, occupy or possess any of the property west of the east fence; there was no permanent fence west of the right of way; his family, with permission of the railroad, installed a pipe under the railroad track in the late 60's to irrigate from the river; and they possessed and occupied the area by farming and running cattle on it. Nevertheless, he admitted that when the property was first purchased, there were remnants of a fence on their side of the right of way and that they put up an electric fence along the railroad track when they had cattle on their property to keep them off of the track. He also admitted that the right of way and railroad bed was not cultivable and that cattle grazed on the property only after the railroad stopped running trains in or around 1980.

¶ 16 The Rogers' daughter testified that she had no knowledge of the Hedricks ever using, possessing or occupying the property west of the east fence, and that there was never a permanent fence west of the railroad right of way. She also testified that after the trains quit running in about 1980, her family fenced across the railroad tracks and connected to the east fence. Subsequently, they occasionally ran cattle in the area and in 1988, they also began leasing all of the property west of the east fence to third parties for cattle grazing. Her husband provided essentially the same testimony, but admitted that the railroad right of way was not cultivable.

¶ 17 There was no direct evidence to show that the Rogers met the requirements of adverse possession to the narrow strip of land between the east side of the railroad right of way by the time the railroad abandoned its right of way in 1986. The only evidence presented in the trial court as to the nature of the Rogers' claim was their testimony that ...