Heigert v. Londell Manor, Inc., 59304
| Decision Date | 28 July 1992 |
| Docket Number | No. 59304,59304 |
| Citation | 834 S.W.2d 858 |
| Parties | Michael HEIGERT, et al., Appellants, v. LONDELL MANOR, INC., et al, Respondents. |
| Court | Missouri Court of Appeals |
Robert L. Brown, Arnold, for appellants.
Patricia Ann Riehl, Hillsboro, Joe A. Johnson, Arnold, for respondents.
This court-tried case involves two basic disputes. A dispute over the ownership of a small triangular piece of land that abuts a travelled dirt road known as Hilltop Lane in Jefferson County, and a dispute over the use of that road. Plaintiffs, Sharron and Michael Heigert, and one of the defendants, defendant Lorene Money, own homes which face each other from opposite sides of the road.
For the most part, the record, including the exhibits, clearly describes the triangular tract in question as well as the related tracts of land. In many significant instances at trial, however, the particular area being referred to is not clearly described; some examples of these unclear references in the transcript are: "this Based on our understanding of the record, we set out a sketch of the disputed property, not drawn to scale:
end", "that end", "there", or "here", with the notation "indicating"; "this point down here to this point here"; "the nearest boundary to you standing where you are".
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The property in dispute is a triangular tract (Triangular Tract), at the southern end of defendant Lorene Money's property (Defendant's Tract), and at the northern end of the plaintiffs' property (Plaintiffs' The dirt road is an extension of a paved road, Hilltop Lane, and it is also commonly referred to as "Hilltop Lane". The dirt road originated as an access road to the farmhouse of Mr. and Mrs. Ollie Keller, whose farm encompassed most, if not all, of the land shown on the sketch. The farmhouse was located on the tract of land now owned by the Stones. 1
Tract). The Triangular Tract is narrow at its southern end and is about 20 feet wide at its northern end. It is about 155 feet long and abuts the northern edge of a dirt road located at the northern end of Plaintiffs' Tract.
Apparently, in the 1950's, the Kellers' son, Mr. Adolph Keller, began developing the farm, and he extended the dirt road as he developed the tracts now owned by the Dickermans, the Walters and the Schulenburgs. The entire road has been visible since its construction or extension by Adolph Keller.
Plaintiffs purchased their tract in 1978. They derive their title to their tract from Mr. and Mrs. Adolph Keller and three intermediate title holders. A survey of Plaintiffs' Tract made at the time of their purchase shows the northern boundary line of the tract running parallel to and a few feet south of the north edge of the dirt road, thus, on the survey, the dirt road crossed Plaintiffs' Tract, and, as it crossed that tract, most of the road was within the boundary lines of the tract.
Defendant Lorene Money received title to her tract in August 1988. She derives her title from Mr. and Mrs. Ollie Keller and several intermediate title holders. Among the significant intermediate title holders were the Matousheks, who obtained their title in May 1951. At that time, however, the legal description of the tract in their deed did not include the Triangular Tract now in question. Title to the Triangular Tract was transferred to the Matousheks in 1957. However, when the Matousheks transferred their title to their successors in 1962, they omitted the Triangular Tract from the description of the tract being transferred, and, thus, by deed in 1962, they only transferred the tract which had been transferred to them in 1951. Title to this tract of land, Defendant's Tract, was transferred by several successors in title and eventually transferred to defendant Lorene Money.
The dispute here erupted in 1987. Mr. Charles Money, the husband of defendant Lorene Money, was then developing the Hilltop Village Subdivision, north of the dirt road. He began to widen that part of the road which was north of the northern boundary of Plaintiffs' Tract and was within the Triangular Tract. He removed bushes, trees and plants from the northern edge of the road and began to put gravel on the road. The improved portion of the road was to be used as an access road to Hilltop Village.
Plaintiffs started to build a fence on the Triangular Tract in order to halt the widening of the road. They installed fence posts, which were removed by Mr. Money.
In November, 1987, plaintiffs initiated this action by filing their first petition, and, in August or September, 1989, they filed their fourth amended petition. Between those two filings, two additional relevant transfers of property interests occurred. In December, 1987, record title to the Triangular Tract was transferred to plaintiffs by the "apparent" heirs of the Matousheks. In August, 1988, Londell Manor, Inc., a company owned by Mr. Money, held record title to Defendant's Tract, and, in that month, Londell Manor transferred title to that tract to defendant Lorene Money.
In their fourth amended petition filed in August or September, 1989, plaintiffs joined defendant Lorene Money, individually, Mr. Money, and several other defendants who may have had an interest in the Triangular Tract or in the use of the dirt road. 2 In their petition, plaintiffs requested The court found and decreed that defendant Lorene Money had acquired title to the Triangular Tract by adverse possession and also found and decreed that "Defendant 3 and all lot owners of Hilltop Village Subdivision have an easement" to use the road for travel. This appeal followed.
among other things, a declaration of plaintiffs' and defendants' respective rights to use the dirt road and a request to quiet title to the Triangular Tract in them based upon their alleged adverse possession of the Tract or by virtue of the deed to that tract obtained from the "apparent" heirs of the Matousheks in 1987. Defendant Lorene Money counterclaimed, requesting the court to quiet title to the Triangular Tract in her based upon her alleged adverse possession of the tract.
In this court tried case, we must sustain the judgment of the trial court 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Of equal importance, we defer to the trial court's resolution of credibility, Rule 73.01(c)(2), and consider only those facts and inferences favorable to the prevailing party. Slay Warehousing Co., Inc. v. Leggett, 762 S.W.2d 63, 64 (Mo.App.1988).
The trial court found that defendant Lorene Money had acquired title to the Triangular Tract by adverse possession. It made this finding by tacking her adverse possession to the adverse possession of her predecessors in record title.
The total of the tacked periods must be at least ten years. Moran v. Roaring River Development Co., 461 S.W.2d 822, 831-832 (Mo.1970); § 516.010 RSMo 1986. For our purposes here, we begin the adverse period at least ten years prior to November 25, 1987, the date plaintiffs filed their initial petition. In November, 1977, Defendant's Tract was occupied and possessed by Mr. David Mueller (Mueller). Record title of Defendant's Tract had been transferred to him in April, 1974. His successors in title and defendant Money's predecessors in title were:
Saggios " 11/78 " 12/83
Cardinal Real Estate " 12/83 " 10/86
Londell Manor, Inc. " 10/86 " 8/88
Plaintiffs attack the trial court's finding of adverse possession on two grounds: (1) Mueller's possession was not "hostile" and, thus, did not meet an essential element of adverse possession, and (2) defendant Money's adverse possession of the Triangular Tract cannot be tacked properly to the adverse possession of that tract by her predecessors in title.
Adverse possession requires a showing that an occupier or user of land intended to possess the land as his or her own. E.g., Beldner v. General Electric Co., 451 S.W.2d 65, 67-68 (Mo.1970). More specifically, it must be shown that the occupation or use of the land was actual, open and notorious, hostile, exclusive and continuous for ten years. Id.; Teson v. Vasquez, 561 S.W.2d 119, 125 (Mo.App.1977). The element of hostility does not imply ill will or acrimony. Porter v. Posey, 592 S.W.2d 844, 850 (Mo.App.1979). Moreover, to prove hostility, an express declaration of hostility need not be made. Id. Rather, hostile possession exists when the claimant occupies the land "with the intent to possess it as his own and not in subservience to a recognized, superior claim of another". Teson, 561 S.W.2d at 127.
Plaintiffs contend Mueller's use was not hostile because he testified that he did not claim any more land than his deed conveyed; i.e., Defendant's Tract. Mueller did so testify. But, he also testified that he laid claim to his entire front yard, which included the Triangular Tract, and would have disputed any contrary claims. Mueller treated the Triangular Tract as his front yard. He mowed the grass on the During the period of Mueller's ownership of Defendant's Tract, the Pitts occupied Plaintiffs' Tract. As further evidence of the lack of Mueller's hostile possession of the Triangular Tract, plaintiffs rely on a conversation between Mueller and Mr. Pitts in which Mr. Pitts referred to the front yard of Defendant's Tract as his own and Mueller failed to dispute this statement.
Triangular Tract and removed a fence which was located on the tract. A sidewalk ran from the front door of his residence across the Triangular Tract to about one foot from the dirt road. In addition, based upon its view of photographs and survey exhibits, the court found that the Triangular Tract was a part of Mueller's front yard. These facts show Mueller's...
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