Hamburg Realty Co. v. Walker, 47126-A

• Decision Date: 13 July 1959
• Docket Number: No. 1,No. 47126-A,47126-A,1
• Parties: HAMBURG REALTY COMPANY, a Corporation, Appellant, v. Fred WALKER, Gertrude Walker, Cecil P. Walker, Olin Engleman and Maye Engleman, Respondents, F. Pace Woods, Olive, Black Woods and Lucian Smith, Defendants
• Court: Missouri Supreme Court

Page 155

327 S.W.2d 155

HAMBURG REALTY COMPANY, a Corporation, Appellant, v. Fred WALKER, Gertrude Walker, Cecil P. Walker, Olin Engleman and Maye Engleman, Respondents F. Pace Woods, Olive, Black Woods and Lucian Smith, Defendants.

No. 47126-A.

Supreme Court of Missouri, Division No. 1.

July 13, 1959.

Rehearing Denied Sept. 14, 1959.

M. E. Ford, Maryville, J. M. Gerlash, Tarkio, for appellant.

John Redd, Sidney, Iowa, Walter L. Mulvania, Rock Port, for respondents.

HOLLINGSWORTH, Judge.

Plaintiff, a corporation, brought this action to quiet its alleged fee simple record title to certain island lands which formed in the Missouri River immediately south of the Iowa-Missouri line in Atchison County, Missouri. By agreement of all of the parties, the issue of title to a portion of the lands described in plaintiff's petition was tried to a jury, resulting in a verdict and final judgment declaring the respondents Fred Walker, Gertrude Walker, Cecil P. Walker, Olin Engleman and Maye Engleman to be the fee simple owners of said portion of said lands by virtue of adverse possession thereof for more than ten years, as defined in Section 516.010 RSMo 1949, V. S.M.S. Plaintiff has appealed.

The history of the entire area of the land to which plaintiff asserts title and the pleadings in relation thereto are set forth in Hamburg Realty Co. v. F. Pace Woods, Mo., 327 S.W.2d 138, handed down concurrently with this opinion. The land involved in this appeal consists of 253.6 acres on the Missouri side of an island known as the Walker-Engleman Island, which island liespartly in Missouri and partly in Iowa.

Plaintiff assigns error in the refusal of the court to sustain its motion for a directed verdict filed at the close of all of the evidence and in the giving of two instructions in behalf of defendants. Plaintiff's evidence consisted solely of its deed from Atchison County, dated June 6, 1950, to the lands claimed by it, a subsequent deed of correction of its original deed, the receipts for state and county taxes paid by plaintiff on said lands for the years 1951 through 1957, and the oral testimony of a witness who pointed out on a map the location and outlines of the island. Consequently, in determining the sufficiency of the evidence to support the verdict and judgment involved in the instant appeal, we have for consideration only the evidence adduced by defendants on the issue of adverse possession, which, in substance, follows:

On September 14, 1930, defendant Cecil P. Walker and his father-in-law, Al Engleman, came to the island, bringing with them a bed and bedding, chairs, stove, tent and axes. Upon arrival they constructed a dugout, in which they lived during the ensuing winter. The low lands on the island were partially covered with willows and cottonwood trees grew on the higher land. During the first winter, Cecil and Al cleared a small area around the dugout. In the spring of 1931, they brought horses and a plow, did some plowing and more clearing, built two willow houses for the occupancy of themselves and their respective families, one on the Missouri side and one on the Iowa side, sowed sweet clover around through the willows for the purpose of enriching the land and the growth of pasture areas wherever the clover would grow. They sowed 500 pounds of such seed in 1931 and 1932 and continued to sow sweet clover about every year thereafter, reseeding wherever the growing clover was drowned out. They put up 'no trespassing' signs at the river bank on all sides of the island, which they thereafter continuously maintained. In 1932, they built a log house, into which Cecil and his wife and children moved. Later that same year (it seems) a two-room house with a gabled roof was built, in which Al and his wife lived.

The clearing, which they had begun in 1931, continued throughout the ensuing years. The progress was slow at first, but later it averaged ten acres per year. As the clearing progressed, they began general farming and cropping operations, which increased apace with the clearing. In February, 1933, they purchased and brought to the island a Fordson tractor, a disc, lister, cultivator, hayrake and a plow. The farming equipment was thereafter operated partly with teams of horses and partly with the tractor. They bought and traded for more horses until in some years they used as many as six different teams. In 1932, they brought two cows to the island and their herd gradually increased until at times there were twenty-one of them. In the same year, they brought two sows over, one of which farrowed; and hogs were thereafter on the island, except for one or two years. They also pastured at various times as many as fourteen horses and fifty head of cattle for other persons. The livestock had free run of the island, except as to the areas in crops. Numerous places on the island were used to 'fence-off' the livestock from the crops. After the crops were harvested, the livestock would be released to range the entire island. In 1939, a Massey-Harris tractor was purchased and it and the Fordson were used for clearing, planting, cultivating and harvesting. The crops grown on the island other than sweet clover, were mostly corn, alfalfa and potatoes. In 1935, they cut several barge loads of willows from the island for a construction company, hauling them from the various places on the island at which they were cut to barges placed along the island bank. They also raised poultry and made gardens at each of their homes.

Cecil Walker and his wife lived on and devoted their energies to development of the island until 1936, at which time they returned to Nebraska. Their son, Fred Walker, and Al Engleman and his wife remained and lived on the island pursuant to an 'arrangement' with his father and Al. Fred and Al 'just went ahead making a farm out of it.' Cecil never lived on the island thereafter, but he returned occasionally. Cecil and Al had an agreement with reference to the island and the farming operations but, over objection of plaintiff, Cecil was not permitted to testify as to its terms. Cecil did testify, however, that each (probably, Fred was acting in behalf of Cecil) did his share of the work in 'every way', Al having a half interest in the crops, but no interest in the livestock.

Tax receipts showed that on November 2, 1936, Cecil and Al paid all taxes assessed against the land for the years of 1930 through 1935; that on November 4, 1936, they paid the 1936 taxes; that on December 20, 1937, they paid the 1937 taxes; that on October 9, 1940, they paid the 1938 taxes; and that on October 9, 1945, they paid all taxes from 1940 through 1945. It is said that the receipt for the 1939 taxes was lost. After Cecil and Al came to the island, it became and was publicly known and referred to locally and in the county seat as the Walker-Engleman Island.

From time to time prior to 1940, the island would overflow to such an extent that the families would be forced temporarily to leave their homes for short periods or time. In 1940, 1200 bushels of corn were grown on the island. In the spring of 1942, one hundred acres had been cleared and Fred Walker obtained an F.H.A. loan to enable him to carry on the farming operations. However, a flood came that year, which covered practically the whole island, forcing all of them to move off. Intending to return when the flood receded, they left all of their househould goods and farming equipment on the island, with the exception of one tractor.

Fred came to the island in the spring of 1943 and discovered that the home and farming equipment were still usable. But another flood came that year, followed by another 'good one' in 1944. After 1942, nothing was done on the farm except that the Walkers 'kept tab' on it to see that no squatters came to it. One of the houses and all of the farm machinery remained in fair condition until the flood of 1952. The house collapsed during that flood. Apparently, nothing was done in the way of rehabilitating the premises after the defendants left them in 1942 until 1...