Humphreys v. Wooldridge

• Decision Date: 03 September 2013
• Docket Number: No. SD 30798.,SD 30798.
• Citation: 408 S.W.3d 261
• Parties: Powell HUMPHREYS and Anita Humphreys, his wife, and Carl Sellers, Trustee under the Carl Sellers Revocable Living Trust Agreement dated 4/30/1999, Plaintiffs–Appellants, v. Michael WOOLDRIDGE, a single person, and Jones Glass Co., a Missouri Corporation, and Joshua Shane Willison and Traci J. Willison, his wife, Defendants–Respondents.
• Court: Missouri Court of Appeals

408 S.W.3d 261

Powell HUMPHREYS and Anita Humphreys, his wife, and Carl Sellers, Trusteeunder the Carl Sellers Revocable Living Trust Agreement dated 4/30/1999, Plaintiffs–Appellants,

v.Michael WOOLDRIDGE, a single person, and Jones Glass Co., a Missouri Corporation, and Joshua Shane Willison and Traci J. Willison, his wife, Defendants–Respondents.

No. SD 30798.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 3, 2013.

William S. Perkins, Thayer, MO, for appellants.

Steven A. Privette, Willow Springs, MO, for respondent.

JEFFREY W. BATES, J.

This appeal involves two recorded easements granted to Powell Humphreys, Anita Humphreys and the Carl Sellers Revocable Living Trust (hereinafter referred to collectively as Appellants) over adjacent property owned by Michael Wooldridge, Jones Glass Co., Joshua Willison and Traci Willison(hereinafter collectively referred to as Respondents).¹On appeal, Appellants challenge the trial court's denial of a request to remove a business sign located within the boundaries of one roadway easement (hereinafter, Easement A) and the trial court's ruling that one portion of another roadway easement (hereinafter, Easement B) had been extinguished by adverse possession.²Finding no error, we affirm the trial court's judgment.

Standard of Review

“This Court must affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.”Grider v. Tingle,325 S.W.3d 437, 440(Mo.App.2010).We presume that the trial court's judgment is correct, and Appellants bear the burden of proving it erroneous.Id.

We review questions of law de novo.Strader v. Progressive Ins.,230 S.W.3d 621, 623(Mo.App.2007).“The credibility of the witnesses and the weight to be given to their testimony is to be determined by the trial court, which is free to believe none, part or all of the testimony of any witness.”Ries v. Shoemake,359 S.W.3d 137, 139(Mo.App.2012).On appeal, we defer to those credibility determinations.SeeRule 84.13(d);Reinbott v. Tidwell,191 S.W.3d 102, 107(Mo.App.2006).³For that reason, “we accept the evidence and reasonable inferences favorable to the prevailing party and disregard all contrary evidence.”Creech v. Noyes,87 S.W.3d 880, 884(Mo.App.2002).Thus, “[t]he evidence and all reasonable inferences are viewed in the light most favorable to the judgment.”Burg v. Dampier,346 S.W.3d 343, 352(Mo.App.2011).In addition, it is not this Court's function to retry the case.Souci v. Souci,284 S.W.3d 749, 753(Mo.App.2009).“An appellate court exercises extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence and will do so only upon a firm belief that the judgment was wrong.”Simpson v. Strong,234 S.W.3d 567, 578(Mo.App.2007).The phrase “weight of the evidence” means its weight in probative value, rather than the quantity or amount of evidence.Nix v. Nix,862 S.W.2d 948, 951(Mo.App.1993).The weight of the evidence is not determined by mathematics, but depends on its effect in inducing belief.Id.

Factual and Procedural Background

In May 1983, Danny Middleton and his wife Sheila Middleton, the Humphreys and Carl Sellers together purchased a large parcel of land lying east of U.S. Highway 63 in Oregon County.Later that year, they divided the land into tracts among themselves.

In September 1983, the Middletons conveyed several easements to the Humphreys and Sellers.At the same time, Sellers conveyed an easement to the Humphreys and the Middletons.Taken collectively, these reciprocal easements include a strip of land 40 feet wide that lies on the east right-of-way of Highway 63 and then bends east on or adjacent to an existing gravel road.Each conveyance was titled “Easement for Roadway” and stated that the grantor was conveying “the perpetual right to enter, erect, construct, and maintain a road over and across” the granted easement.Each document also stated:

The [grantees] shall have the right of ingress and egress to and from said land to survey, erect, construct, maintain, inspect, patrol, rebuild and use the roadway constructed thereon, and SECOND PARTY may trim and/or cut and clear away any trees, limbs and brush on or adjacent to the above described land, whenever, in their judgment, such will interfere with the construction or use of said road.

Like the trial court, we will refer to these reciprocal easements collectively as Easement A.In 1993, Sellers sold a parcel of property to Michael Wooldridge(Wooldridge).Easement A lies within and burdens Wooldridge's property.In 1999, Sellers conveyed his interest in Easement A to the Carl Sellers Revocable Living Trust (the Sellers Trust).In 2005, Wooldridge conveyed a portion of his property, lying in the corner of the “L” shape created by Easement A, to Jones Glass Co.(Jones).Wooldridge had an ownership interest in Jones.As a result of that conveyance, a portion of Easement A lies within and burdens Jones' property.

The Middletons' September 1983 roadway easement conveyance also included another strip of land 40 feet wide that joined the east end of Easement A, traveled east on or adjacent to the existing gravel roadway and then turned north.Like the trial court, we refer to this roadway easement as Easement B. Around 1984, the Middletons sold a parcel of property to Charles Case(Case).Easement B lies within and burdens that property.⁴In 2000, Case sold the same property to Anthony Clark(Clark).In 2004, Clark sold that property to the Willisons.

The Humphreys' property lies south of that owned by Wooldridge, Jones and the Willisons.The northern edge of the Humphreys' property abuts the southern boundary of Easement A, as well as the southern and eastern boundaries of Easement B.

Appellants' lawsuit, which was filed in March 2006, sought a declaration of the boundaries of Easement A and Easement B, ejectment and injunctive relief.The trial was conducted in July 2008, and additional evidence was presented to the court in December 2009.The court entered its judgment in May 2010.This appeal followed.

As noted above, Appellants challenge the trial court's denial of a request to remove a business sign located within the boundaries of Easement A and the trial court's ruling that one portion of Easement B had been extinguished by adverse possession.The evidence relevant to these points, viewed most favorably to the judgment, and the trial court's rulings on those issues are summarized below.

The Sign Located on Easement A

Sometime after March 2006, Wooldridge constructed an advertising sign for Jones.The sign was set on a concrete foundation in a grassy portion of Easement A that burdened Jones' land.As shown by Court's Exhibit 1 (which was a survey depicting the location of Easement A, the roadway and the sign) and a number of photographs of the scene, the sign was approximately 8–10 feet west of the northbound gravel roadway.Wooldridge testified that there was ample room for two cars to pass side-by-side on the roadway running between Jones' building and its sign.Powell Humphreys(Powell) admitted that the sign was not located on the traveled portion of the roadway.

The trial court decided that Easement A had not been abandoned or extinguished by adverse possession.The court also decided that “Wooldridge and Jones Glass had the right to construct the business sign within the easement.”The trial court made a factual finding that the use of Jones' land to place the sign “is reasonable, does not interfere with [Appellants'] use and enjoyment of the easement, and neither destroys nor substantially limits the use of that easement.”Therefore, the trial court denied Appellants' request for an order requiring the sign to be removed from Easement A.

Easement B Adverse Possession Issues

Case bought his property around 1984.The road on Easement B was already there.There was a fence running east and west on the southern edge of the Willisons' property that was within the boundaries of Easement B. Case testified that he had built this fence, which he intended to be permanent, in 1988 or 1989.According to Case, he was shown by Sellers where to place the corner fence post, and Sellers helped build part of the fence.Case denied that he received permission from Sellers or Powell to place the fence in that location.Case testified that, “[t]he purpose was put up the fence to know where my property went to, and to keep my cattle in.”Case possessed the land up to the fence.Case believed he was placing the fence on the boundary of Easement B.

In 2000, Clark purchased the land from Case.In 2001, Clark was told by Sellers that he made a mistake as to the location of the fence, but Clark “discounted” what Sellers said.Clark believed that he owned the property to the fence, and he acted in accordance with that belief.Clark removed a section of the fence for a driveway and yard for the house he built on the property.The driveway extended past the fence to the roadway.He“mowed the grass to the road.”He testified that, while he lived there, there was plenty of room for two cars to pass side-by-side on the gravel roadway.

Joshua Willison(Joshua) testified that he also used and possessed the property all the way up to the fence installed by Case, which included the northern 22 feet of Easement B. Joshua mowed it, weeded it, put in rocks to keep the soil from washing out in a flash flood, trimmed trees planted by Clark, and paved the Willisons' driveway “[u]p to the traveled portion of the road.”During this time, no one complained to Joshua about his use of the easement, and he believed that two vehicles would not have any trouble meeting or passing each other on the roadway.In 2005 or 2006, Powell went to see Case and said the fence had been built in the wrong place.

In 2006, Joshua began placing posts for...