Heide v. Sheeks

• Citation: 682 S.W.2d 877
• Decision Date: 17 December 1984
• Docket Number: No. 13445,13445
• Parties: Orville S. HEIDE, et ux., Plaintiffs-Respondents, v. Raymond L. SHEEKS, et ux., Defendants-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 877

682 S.W.2d 877

Orville S. HEIDE, et ux., Plaintiffs-Respondents, v. Raymond L. SHEEKS, et ux., Defendants-Appellants.

No. 13445.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 17, 1984.

John E. Price, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, James E. Curry, Ava, for defendants-appellants.

W. Price Harned, Gainesville, for plaintiffs-respondents.

FLANIGAN, Judge.

Plaintiffs Orville Heide and Dorothy Heide, husband and wife, brought this action against defendants Raymond Sheeks and Carolyn Sheeks, husband and wife, seeking to quiet title to 64.2 ¹ acres of rural land in Ozark County. The trial court, sitting without a jury, found the issues in favor of plaintiffs. Defendants appeal.

Plaintiffs, who base their claim on adverse possession, had the burden of proving by the preponderance of the evidence the existence, for the statutory period, of every element of adverse possession. They had the burden of showing actual, hostile (i.e. under a claim of right), open and notorious, exclusive, and continuous possession of the disputed land for 10 years. Failure to prove any element prevents the ripening of title by adverse possession. Teson v. Vasquez, 561 S.W.2d 119[1, 2] (Mo.App.1977) and authorities there cited.

Defendants challenge the adequacy of plaintiffs' proof with respect to each of the elements. Defendants also contend that the judgment, in finding the presence of all the elements, is against the weight of the evidence.

Appellate review of this action is governed by Rule 73.01, V.A.M.R., as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). See Roth v. Flieg, 536 S.W.2d 39 (Mo. banc 1976). This court must sustain the judgment 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. Setting aside the judgment on the ground that it is against the weight of the evidence is a power to be exercised "with caution and with a firm belief that the ... judgment is wrong." Murphy v. Carron, supra, at 32. For the reasons which follow, this court finds merit in the appeal and reverses the judgment.

Although both plaintiffs and defendants own other land in the area, this litigation concerns two 160-acre tracts. Plaintiffs have record title to one of the tracts and defendants have record title to the other. Each tract consists of four "square 40s." For the purpose of this opinion plaintiffs' four 40s will be designated Lot 1, Lot 2, Lot 3, and Lot 4, and defendants' four 40s will be designated Lot 5, Lot 6, Lot 7, and Lot 8.

Lot 1 is the westernmost 40 of plaintiffs' land, Lot 2 lies immediately east of Lot 1, Lot 3 lies immediately east of Lot 2, and Lot 4 lies immediately east of Lot 3. Lot 5 lies immediately south of Lot 1, Lot 6 lies immediately south of Lot 2, Lot 7 lies immediately south of Lot 3, and Lot 8 lies immediately south of Lot 4. From the record title standpoint, the true boundary between the two 160-acre tracts is one mile long, running east and west, and is the south border of plaintiffs' land and the north border of defendants' land.

The 64.2 acres in dispute lie south of the true boundary and north of an old meandering fence. Generally speaking, the fence commences at a point on the west line of Lot 5, the point being approximately 459 feet south of the northwest corner of Lot 5. From that western terminus the fence meanders northeasterly across Lot 5 and then turns easterly and enters Lot 6. It then proceeds northeasterly to a point very close, perhaps within five feet, of the northeast corner of Lot 6 where it encounters a bluff. The fence then turns south and enters Lot 7 and meanders generally easterly across Lot 7 until it reaches a point on the west line of Lot 8 at which point it turns south-southeasterly and proceeds deep into Lot 8 to a point approximately 1307 feet south of the north line of Lot 8. From that point it proceeds northeasterly to the east line of Lot 8.

The disputed land consists of 17.7 acres in Lot 5, 10.4 acres in Lot 6, 9.6 acres in Lot 7, and 26.5 acres in Lot 8.

Plaintiffs presented seven witnesses: plaintiff Dorothy Heide, plaintiff Orville Heide ("Orville"), Loma Foster, Gareth Heide (son of plaintiffs), O.J. Friend, Elmer McFarland and Bobby Robbins. The last three of those witnesses were employees of defendants. The defendants presented three witnesses: surveyor James Henderson, defendant Raymond Sheeks, and the county assessor. The latter gave unchallenged testimony that the taxes on the disputed land had been paid by defendants and their predecessors. As will be seen, several of the plaintiffs' witnesses gave testimony damaging to the plaintiffs.

The presentation of the evidence was not too orderly and some of the testimony is vague. The plaintiffs acquired Lot 1 in 1963 and later that year obtained title, from another source, to Lots 2, 3, and 4. The latter three lots are called "the Foster place." Before plaintiffs obtained title to the Foster place, it was owned by Loma Foster and her husband.

Loma Foster testified that the meandering fence had been in place since prior to 1937. She testified that her husband cultivated undefined portions of Lots 6, 7, and 8 lying north of the fence. Her testimony, however, did not mention how long that cultivation lasted and she also indicated that the cultivation ended four or five years before 1963. Her testimony was insufficient to show that she and her husband had established title by adverse possession to the disputed portions of Lots 6, 7, and 8, the most glaring omission being that she failed to testify that any possession of the disputed land on their part had lasted continuously for 10 years. That possession, of unknown duration, ended several years before plaintiffs occupied the Foster place and thus there is no issue of possible "tacking," for the Foster possession of the disputed land was not continuous with that of plaintiffs. ²

Defendants acquired record title to their 160 acres in June 1980. The meandering fence, which defendants admit "has been in existence at least 50 years," consisted, in places, of barbed wire, and, in other places, of woven wire, nailed to wooden posts and tree trunks. Dorothy Heide described the fence as being "pretty decrepit." The eastern portion of the fence, in Lot 8, was "an old rail fence." There was no testimony concerning who originally installed the fence or the reason for its installation, nor was there evidence of any express agreement between the respective predecessors of the parties that the fence would constitute the boundary.

Dorothy Heide testified that her husband ran cattle on at least some portions of the disputed area and Orville testified that he had cut some timber off it. "[P]asturing cattle or cutting timber do not in themselves establish adverse possession ... but they do tend to show claim of ownership...." Miller v. Warner, 433 S.W.2d 259, 264 (Mo.1968). Orville conceded, however, that the disputed area is "rough, mostly glade land, forest, timber.... We are not talking about farm land." Dorothy described the disputed land as "hilly timber land and forest land. We are not talking about any cultivated fields, we never did cultivate it."

There are four significant events which illuminate the issues and control their resolution. Those events, in the order of their occurrence, are: (1) the making of the Sneerbusch survey; (2) the making of the Henderson survey; (3) the bulldozing of the true boundary--that is, the one-mile-long east-west boundary between the two 160-acre tracts; and (4) the follow-up bulldozing.

In 1979, prior to defendants' acquiring title to their 160 acres, a surveyor named Sneerbusch was employed by Orville and by another landowner to make a survey which included the one-mile boundary line between Orville's 160 acres and the 160 acres now owned by defendants. Orville contributed $60 to that survey. Although Orville disclaimed seeing Sneerbusch's plat of the survey, if in fact he made a plat, both Orville and his wife admitted seeing ribbons placed by Sneerbusch on trees to indicate the boundary line.

On his deposition, given a month...