Kinder v. Calcote

• Decision Date: 09 January 2018
• Docket Number: WD 80655
• Citation: Kinder v. Calcote, 537 S.W.3d 379 (Mo. App. 2018)
• Parties: Michael and Linda KINDER, Respondents, v. Ralph and Tammy L. CALCOTE, Appellants.
• Court: Missouri Court of Appeals

537 S.W.3d 379

Michael and Linda KINDER, Respondents,

v.Ralph and Tammy L. CALCOTE, Appellants.

WD 80655

Missouri Court of Appeals, Western District.

OPINION FILED: January 9, 2018

Thomas Schneider, Columbia, MO, Counsel for Appellants.

Garrett Taylor, Columbia, MO, Counsel for Respondents.

Before Division One: Cynthia L. Martin, P.J., James Edward Welsh, and Karen King Mitchell, JJ.

James Edward Welsh, Judge

Ralph and Tammy Calcote appeal the circuit court's judgment quieting title to a 1.22 acre tract of land based upon a finding of adverse possession in favor of Michael and Linda Kinder.We affirm.

Background

In April 2015, the Kinders filed a petition seeking to quiet title to a tract of land (the "Disputed Tract") situated between their property and property owned by Ralph and Tammy Calcote.The Kinders claimed to have acquired ownership of the Disputed Tract via adverse possession.¹The Calcotes filed a counterclaim seeking a declaration that they own the Disputed Tract and an injunction preventing the Kinders from entering upon it.

At a bench trial in December 2016, both Michael and Linda Kinder testified, and they presented the testimony of Michael's father(Julius Kinder) and of Jerry Johnson, whose family previously owned the Calcotes' property.Ralph and Tammy Calcote also testified.The evidence presented showed that the "Kinder Property" consists of a residence and 43 acres of mostly wooded property.Julius Kinder purchased the property in 1965 and built a home on it a few years later.He owned the property until 1985, when he transferred it to his son, Michael.²In a series of conveyances, between 1985 and 1988, Michael acquired title to the residence and the entire 43 acres.In December 1995, Ralph and Tammy Calcote acquired the "Calcote Property," which consists of 16.22 acres of undeveloped real estate that is contiguous to the entire eastern edge of the Kinder Property.

The "Disputed Tract" is a long, thin triangular strip of land, 1.22 acres in size, which sits between the Kinders' 43 acres to the west and the Calcotes' 16.22 acres to the east.The property is primarily wooded, and there are remnants of an old fence running north and south along its eastern edge.The Kinders' driveway and a portion of their yard are located on the southern part of the Disputed Tract.A dirt road bed just west of the old fence runs from the Kinders' driveway up to the northern reaches of the Kinder Property where it then turns to the west.According to surveys commissioned by both the Kinders and the Calcotes, the Disputed Tract is included in the Calcotes' 16.22-acre tract.

The Calcotes also own 50 acres of property, which they acquired in 1993, that borders the Disputed Tract on the north.In 1998, the Calcotes built a home there, which sits approximately 80 to 100 yards from the Disputed Tract's northern border.The Calcotes testified that they have since maintained the northern part of the Disputed Tract by planting trees, mowing, and putting in a garden and have used it to store firewood, mulch, compost bins, and a utility shed.

At trial, both sides claimed never to have seen the other using the Disputed Tract between 1993 and 2003.In 2003, Ralph Calcote observed Linda Kinder attempting to place a fence in the northern part of the Disputed Tract to contain her horses.Ralph approached Linda and told her that the property she was attempting to fence was his property.Until then, no one had asked the Kinders to stay off the Disputed Tract or suggested that it was not their property.The Calcotes contacted the Sheriff's department to keep the Kinders off the Disputed Tract.

In 2007, the Calcotes obtained a survey showing that the Disputed Tract is included in the legal description of their 16.22 acres.The Kinders obtained a survey in 2010 which showed the same.In 2014, the Calcotes hired a contractor to move a cabin built by Julius Kinder out of the northern part of the Disputed Tract.Michael Kinder testified that the cabin was badly damaged in the process of moving it.

On March 7, 2017, the circuit court entered judgment in favor of the Kinders.The court found that the Kinders had "established each and every element" of their adverse possession claim (Count I) and awarded them title to the Disputed Tract, "except to the extent that the disputed area includes [the Calcotes'] garden and shed at the north end."The court also found in favor of the Kinders on their action for ejectment (Count II) and ordered the Calcotes

to immediately remove any obstacles located or placed in the Disputed Strip by [them], except to the extent that the Disputed Strip includes [their] garden and shed.The Court further orders that [the Calcotes] shall have appropriate and reasonable ingress and egress to their garden and shed if ingress and egress paths or routes are located in the Disputed Strip.

The court found that Michael's testimony regarding damages to the cabin was not credible and denied the Kinders' other two counts.The court denied the Calcotes' counterclaims.

Discussion

The Calcotes raise two points on appeal, in which they argue that the trial court erred in awarding the Kinders fee simple title to the Disputed Tract north of the Kinders' yard based on a finding of adverse possession.³They contend that "there was no substantial and competent evidence to support the court's findings and conclusions" as to two elements of adverse possession: "actual possession"(Point I), and "open and notorious" possession (Point II).

Standard of Review

As in any court-tried case, we will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.Murphy v. Carron,536 S.W.2d 30, 32(Mo. banc 1976).We presume that the judgment is correct, and the appellant has the burden to show otherwise.Ferguson v. Hoffman , 462 S.W.3d 776, 780(Mo. App.2015).In assessing the sufficiency of the evidence, we accept all evidence and inferences favorable to the judgment as true and disregard all evidence to the contrary.Watson v. Mense , 298 S.W.3d 521, 526(Mo. banc 2009).We defer to the trial court's assessment of the facts, as it is in a better position to judge not only the credibility of witnesses, "but also their sincerity and character and other trial intangibles which may not be completely revealed by the record."Pearson v. Koster , 367 S.W.3d 36, 44(Mo. banc. 2012).A claim that the trial court erroneously declared or applied the law are questions of law which we review de novo.Id. at 43.In reviewing mixed questions of law and fact, we defer to the trial court's factual findings, if they are supported by competent, substantial evidence, but we review the application of the law to those facts de novo.Id. at 44.A claim of adverse possession "presents mixed questions of law and facts."DeVore v. Vaughn , 504 S.W.3d 176, 186(Mo. App.2016).

Adverse Possession

To acquire title by adverse possession, the claimant must prove by a preponderance of the evidence that the possession was: (1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for a period of ten years before commencement of the action.Watson , 298 S.W.3d at 526;§ 516.010, RSMo 2016.The requisite ten-year period need not occur immediately prior to the suit; the elements can occur during any consecutive ten-year period.Id.Moreover, the claimant may tack his period of adverse possession onto that of his predecessor in title to meet the ten-year requirement.Id.

Viewed in the light most favorable to the judgment, seeid. , the Kinders presented the following evidence to support their claim of adverse possession.The Kinder Property has been continuously owned by Julius or Michael Kinder from 1965 to the present.When Julius purchased the property in 1965, an old fence existed along its eastern edge, and a dirt road bed ran alongside the fence up to the northern reaches of his property.Julius testified that he always believed that the fence was the eastern boundary line of his property.He built a home on the property a few years after he purchased it and installed a gravel driveway at that time.Both the driveway and the road bed lie within the Disputed Tract.

After purchasing the property, Julius widened the existing road bed and leveled its terrain and thereafter consistently maintained it.He regularly used the road bed to access the northern part of his property where he built a cabin.Julius operated a saw mill on the Kinder Property while he lived there.He and Michael used the road bed to access the northern part of the property to cut logs, pull them out with a tractor, and then saw them into lumber.Julius told the judge that from 1965 to 1985, he used the existing road bed to access the northern part of the Kinder Property more than twenty times a year to maintain his property, to hunt on his property, for ingress and egress for logging purposes on his property, as a means of access to his cabin, and as a means to walk the boundaries of the Kinder Property.

Michael Kinder has resided on the Kinder Property for over five decades (with two brief exceptions when he was stationed elsewhere by the military).When he and Linda obtained title to the Kinder Property in 1985, they began maintaining the gravel driveway and the yard surrounding the residence up to the old fence line.They continued to do so up to the date of trial.The Kinders maintained and trimmed trees along the road bed in the Disputed Tract until 2003.They and their children used the road bed to access the northern part of the Kinder Property at least twice a week for a period of at least ten years.The Kinders used the road bed for hayrides, and the children rode ATVs, motorcycles, and bicycles along the road bed up to the cabin.Linda allowed her horses to graze within the Disputed Tract, and the Kinders stored a trailer, building materials, and...