J. C. Nichols Co. v. Powell
| Decision Date | 07 September 1982 |
| Docket Number | No. WD,WD |
| Parties | J. C. NICHOLS COMPANY, Plaintiff-Respondent, v. Lula M. POWELL, Defendant-Appellant. 32787. |
| Court | Missouri Court of Appeals |
Howard D. Lay, Kansas City, for defendant-appellant.
W. Raleigh Gough, Rufus B. Burrus, Independence, for plaintiff-respondent.
Before CLARK, P.J., and MANFORD and KENNEDY, JJ.
This action to quiet title acquired by adverse possession was tried to a jury with a resultant verdict for plaintiff from which defendant Lula M. Powell appeals. Reversed.
The facts of this case can be related only in skeletal and qualified form because no transcript from the trial has been filed. Suffice it to say that the land in controversy consists of an elongated triangle separating from roadway frontage a portion of a large tract acquired by plaintiff through purchase, apparently for subsequent development. Defendant's title to the small but important parcel derives by conveyance from the purchaser at a tax sale more than thirty years before. The issue is not the strength of defendant's title but whether judgment was properly rendered on the theory that any title defendant did have was extinguished by the adverse possession of plaintiff and its predecessors in title.
Defendant's points on appeal are directed solely to instruction error. The content of three instructions presents the crux of the issues and those instructions are therefore set out as a prelude to the discussion.
The term "adverse possession", as used in these instructions, means an actual, open, visible, notorious, adverse and continuous possession under a claim of ownership, such possession being indicated by such acts of possession and ownership as indicates to the world at large, that the party in possession claims to own the property in his own right and not as subordinate to any other person. Such possession may be made either by the party in person claiming to be the owner, or through a tenant allowed by him to take and maintain possession.
Your verdict must be for the plaintiff and against defendant Lula Powell if you believe:
First, that for at least ten years prior to the filing of this lawsuit on February 13, 1980, plaintiff and its predecessors in title, by themselves or through their tenants, had and maintained the open, exclusive, continuous, notorious, adverse possession of the triangular tract mentioned in the evidence, and referred to as "Tract No. 1" herein, and
Second, that during all of such ten-year period the defendant Lula Powell never was, either by her own person or by any person acting for her, in the actual possession of said lands, or any part thereof.
You are instructed that, in considering, under Instruction No. 7, whether or not defendant Lula M. Powell was ever in possession of the triangular tract during the ten-year period mentioned in that instruction, you should not consider as establishing such a possession by her, either the payment of taxes by her or her predecessors in title, or occasional visits by her to look at the property so as to consider a future use of it, unless at such time or times, the same was accompanied by an actual taking of possession of said triangular tract, either through her own person or by a person or persons acting for her.
As to instructions 5 and 7, defendant asserts each omits the requisite element of hostile possession; as to instruction 5, it makes no mention of exclusive possession; and, as to instruction 7, the element omitted is actual possession. In an attack on instruction 9, defendant contends that instruction, in combination with the other two, improperly suggests the record title owner must assume some burden to prove actual possession but is denied the benefit of favorable evidence as to payment of taxes and visits to the property. Appraisal of these instructions must be preceded by a restatement of basic principles involved in adverse possession.
The law presumes a conjunction of title ownership and possession of land, that is, rightful possession depends upon and is consistent with ownership. Burnside v. Doolittle, 324 Mo. 722, 731, 24 S.W.2d 1011, 1016 (1930). Adverse possession indicates possession in opposition to the real owner and implies a possession commenced in wrong and maintained against right. Hilgert v. Werner, 346 Mo. 1171, 1176, 145 S.W.2d 359, 361 (1940). The presumption of rightful possession therefore casts upon one claiming by adverse possession the burden of rebutting the presumption by showing occupancy and user open, notorious and inconsistent with the rights of the true owner. Miller v. Warner, 433 S.W.2d 259, 262 (Mo.1968). If an adverse possessor occupies the land in question with the intent to occupy it as his own, his occupancy is adverse. It is not necessary that there be an intent to take the land from the true owner, only the intent to possess which governs. Walker v. Walker, 509 S.W.2d 102, 107 (Mo.1974).
The burden of proof in an action to establish title by adverse possession is upon the claimant who must show his possession to have been: (1) hostile under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous. Davis v. Realty Exchange, Inc., 488 S.W.2d 913 (Mo.1973). Once the claimant has made its prima facie case, the burden of going ahead on that issue shifts to the other party. Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1 (Mo.1970).
Turning now to the instructions in this case, it is apparent, as defendant contends, that instructions 5 and 7 each omit an element normally required for proof of adverse possession. Instruction 5 omits exclusive and instruction 7 does not specify that the claimant's possession be actual. Reviewed reciprocally, however, the instructions supply the missing elements of definition. Instruction 5 defines adverse possession as requiring actual occupancy by the claimant. Under the verdict directing instruction 7, the claimant must show adverse possession to recover and, under the definition of that term, the possession must be actual. The element of exclusive possession is contained in the verdict director although not in the definition. The errors of which defendant complains are therefore...
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Shanks v. Honse
...because the claimant has proved his actual and continuous possession and that of those under whom he claims.J.C. Nichols Co. v. Powell, 641 S.W.2d 780, 783–84 (Mo.App. W.D.1982). The elements of adverse possession require that the possession be “(1) hostile, that is, under a claim of right,......
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...It is not necessary that there be an intent to take the land from the true owner, only the intent to possess. J.C. Nichols Co. v. Powell, 641 S.W.2d 780, 782 (Mo.App.1982). Adverse possession requires that the possession of the claimant be under a claim of right. The theory of this requirem......
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...case on the issue of adverse possession, the burden of going ahead on that issue shifts to the opposing party. J.C. Nichols Company v. Powell, 641 S.W.2d 780, 782 (Mo.App.1982). Our review of an adverse possession case is guided by the fact that each piece of property is unique. What may sa......