Krosmico v. Pettit

• Decision Date: 22 September 1998
• Docket Number: No. 88152,88152
• Citation: 1998 OK 90,968 P.2d 345
• Parties: Angelina KROSMICO, Trustee of the Judith Zellar Trust, Appellee, v. Bill PETTIT and his Spouse, Appellants, Board of County Commissioners of Pittsburg County, Oklahoma and Johnnie Mae Griffin, County Treasurer of Pittsburg County, Oklahoma, The State of Oklahoma ex rel. Oklahoma Tax Commission, Defendants.
• Court: Oklahoma Supreme Court

Page 345

968 P.2d 345

1998 OK 90

Angelina KROSMICO, Trustee of the Judith Zellar Trust, Appellee, v. Bill PETTIT and his Spouse, Appellants Board of County Commissioners of Pittsburg County, Oklahoma and Johnnie Mae Griffin, County Treasurer of Pittsburg County, Oklahoma, The State of Oklahoma ex rel. Oklahoma Tax Commission, Defendants.

No. 88152.

Supreme Court of Oklahoma.

Sept. 22, 1998.

Certiorari to the Oklahoma Court of Civil Appeals, Division 1.

¶0 Plaintiff sought to quiet her title to real property by adverse possession. Defendant sought relief as to the same property based upon a tax deed. After a non-jury trial the Honorable Thomas M. Bartheld, Associate District Judge of the District Court of Pittsburgh County, determined that Plaintiff had title by adverse possession. The Court of Civil Appeals affirmed, and Defendant sought certiorari. We hold that Plaintiff's possession and exclusive use of the surface for a period of fifteen years after Defendant obtained the tax deed was sufficient to support the trial court's judgment quieting title in Plaintiff.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

W.H. Layden, McAlester, for Appellee, Angelina Krosmico.

M. Todd Konsure, Craig H. Carter, McAlester, for Appellant, Bill Pettit.

SUMMERS, Vice Chief Justice.

¶1 In dispute are two lots, record title to which is in Defendant by reason of his having obtained a resale tax deed from the County, but the uninterrupted possession of which has been had by the Plaintiff for more than fifteen years since the tax deed was executed. We find that the evidence supports the trial court's judgment in favor of the Plaintiff based on adverse possession.

¶2 Plaintiff Krosmico, trustee of the Zellar Trust, is the daughter of Richard and Mary Zellar. She filed this action in 1995 to quiet the title to two lots her parents mistakenly thought they had purchased, but which had been fenced and used the same as other lots which they had in fact purchased. The principal Defendant is Pettit, who in 1963 obtained a resale tax deed to the two lots. To the Plaintiffs' petition Pettit responded by seeking to quiet his own title. ¹

¶3 After a non-jury trial the lower court entered judgment for the Plaintiff. The Court of Civil Appeals affirmed, relying in part on a theory we need not develop. We vacate the appellate court's opinion, but also affirm.

¶4 The property involved in this dispute at issue are lots 1 and 2 of Block 86, Alderson Addition of Pittsburgh County, State of Oklahoma. Richard and Mary Zellar began purchasing property adjacent to their home in 1919, and continued until 1944. Krosmico testified that when the family made a land purchase in 1928 they thought that the two lots were part of the purchase. The Zellars never purchased Lots 1 and 2, but enclosed all of their property within fencing, and included the two contested lots within the fenced area. The Zellars' residence was not on the two lots, but within the larger fenced area. The diagram attached as an appendix to the opinion shows the fenced property, with the locations of the Zellar home and the two lots in dispute.

¶5 At the time of trial a boundary fence on one side of the Zellar property was relatively new, and some others were somewhat dilapidated. Krosmico testified that she had installed some new fencing to replace an older fence. She also testified that the boundary fence lines at the time of trial were the same as they had been as for as long as she could remember, since approximately 1930. She stated that certain gates in the fences had been present as long as she could remember, and that at various times during her lifetime she had repaired all of the boundary fences.

¶6 One witness testified that her property was adjacent to a portion of the north side of the Zellar property. ² She stated that she had lived in Alderson all her life and that she was eighty-one years old. According to her the property within the Zellar fence line had been known locally as the Zellar property for at least thirty years.

¶7 The Zellars used their land and the two lots for raising cattle. Brush had been cleared from the lots by the Zellars and they had fertilized the property. One witness testified that he had been familiar with the Zellar property since 1956. He had worked for the Zellars to take care of cattle and repair fences. He stated that he left that employment in 1973 or 1974, that he was at the Zellar property a few days before trial, and that the fences were "in the same exact location" as when he worked for the Zellars. He stated that when he worked on the property lots 1 and 2 of Block 86 had always been enclosed within the Zellar boundary fence, and that cattle grazed on those lots.

¶8 In 1989 Krosmico discovered that her family had not paid taxes on the two lots, that Pettit had purchased lots 1 and 2 by way of a resale tax deed in 1963, and had paid taxes on the property since that time. Pettit had also participated in the drilling of an oil and gas well located in the same governmental section as the property (but not on the lots in question). He participated again when the well was drilled to a deeper depth. Additional testimony was that no roads were open adjacent to the lots, and while Pettit had driven in the area, he had never physically been on the property. Pettit did not give the Zellars or Krosmico permission to use the property.

¶9 In 1995 Krosmico sued, claiming that her family had title to the property by adverse possession, and requested that title be quieted in a family-related trust. The trial court determined that the Zellar family had adversely possessed the property for more than fifteen years preceding the filing of Krosmico's petition. The court concluded that Pettit's counterclaim for "quiet title" was barred by the five year limitations period in 12 O.S. § 93(3). ³ The trial court quieted title in Krosmico.

¶10 The Court of Civil Appeals affirmed the judgment of the trial court. The majority of the certiorari arguments involve the limitations issue. However, even if we assumed for the purpose of argument that Pettit's counter-claim to "quiet title" was not barred by the limitations statute, Pettit would still receive no relief. This is because evidence was before the trial court that the Zellars/Krosmico adversely possessed the property for at least a fifteen year period occurring after Pettit obtained title in 1963 and before the suit was filed in 1995. Thus, the judgment quieting title in Krosmico is not contrary to the clear weight of the evidence. For this reason we need not concern ourselves with how § 93(3) is applied in cases where quiet title is sought involving property sold for taxes. ⁴

¶11 At trial Krosmico argued that her family acquired title to the two lots by way of adverse possession since the nineteen-twenties. We recently observed that "[u]nder the Tax Code, one of the potential ultimate outcomes of the collection mechanisms for delinquent taxes is divestment of an owner's right, title and interest in the land, and a vesting in a resale tax deed purchaser an absolute and perfect title in fee simple to the real estate." First American Bank v. Industrial Finance Auth., 1997 OK 155, p 22, 951 P.2d 625, 632, citing, Dunlap v. Mayer, 1959 OK 125, 341 P.2d 258. In Dunlap, we said the following:

A valid resale tax deed divests former owners of all their right, title and interest in the land, and vests in the purchaser an absolute and perfect title in fee simple. The term "former owners", as used in this connection, includes not only the former owners of record but also includes all persons claiming an interest in the property by prescription, and claims based upon prior occupancy are extinguished by the resale tax deed and cannot ripen into title by limitations by virtue of continued occupancy for less than fifteen years after date of resale tax deed.

Dunlap, 1959 OK 125, at p 13, 341 P.2d at 258, 260, quoting from and adding emphasis to, Kasner v. Wilson, 202 Okla. 497, 215 P.2d 833 (Okla.1950).

¶12 The allegations of Krosmico's Petition were that the tax resale proceedings were regular and valid. ⁵ It is true that in closing argument Krosmico's attorney argued that if Pettit did not have possession of the surface the tax deed was insufficient to empower him to grant an oil and gas lease. However, Pettit's authority to lease the minerals and any interests created thereby were not issues in this case. They were merely injected during the argument of counsel. No evidence at trial attacked either the tax sale or the resulting deed. The judgment did not adjudicate the validity of the tax deed or the nature of Pettit's mineral interest transactions. We thus begin our analysis with the starting point that the resale tax deed was valid, and that Pettit acquired title to the two lots in 1963. Thus, Krosmico must show the elements of adverse possession for the statutory period (15 years) prior to filing suit, and that period must have commenced after Pettit acquired his title in 1963.

¶13 Pettit claims that the evidence was insufficient to show adverse possession. He notes that Krosmico did not pay, nor attempt to pay, the property taxes. He states that the fence around the property was in disrepair, and that some of the fence was falling down. He points to testimony that Krosmico did not know that the fence enclosed Pettit's property when the fence was erected. He argues that the act of Krosmico in leasing the land to a third party in 1992 does not satisfy the statutory requirement for adverse possession. He states that he paid the ad valorem taxes on the property, and that he was a party in litigation involving his mineral interest in the property. He further points to his participation in two wells. He also states that Krosmico did not know until 1989 that the property belonged to Pettit, and that she never informed Pettit of her...