Lohrmann v. Carter
| Decision Date | 30 August 1983 |
| Docket Number | No. 12967,12967 |
| Citation | 657 S.W.2d 372 |
| Parties | Imelda H. LOHRMANN and Agnes B. Lohrmann, Respondents, v. Hazel G. CARTER, Appellant. |
| Court | Missouri Court of Appeals |
Van A. Miller, Waynesville, for appellant.
Wm. C. Morgan, Waynesville, for respondents.
Hazel G. Carter appeals from a judgment declaring that Imelda H. Lohrmann and Agnes B. Lohrmann, sisters, own a wedge-shaped parcel of land. Hazel claims ownership by adverse possession. Her sole point is that the trial court erred in applying the law to the facts. The specifics of her complaint are discussed after our summary of the evidence.
On February 5, 1963, Hazel and her then husband, Edward J. Elliott, bought a tract of land on which a dwelling house was situated. The tract is composed of portions of lots 2 and 3 in a Waynesville subdivision.
At that time, a house was under construction on an adjoining tract, composed of the remainder of lot 2 and part of lot 1. By October 22, 1963, the house on this tract had been completed, and on that day, this tract was bought by Imelda and Agnes from the same grantors who had sold Hazel and Edward their property.
The tract purchased by Hazel and Edward lies north of the tract purchased by Imelda and Agnes. The fronts of both houses face generally west toward a street adjoining the west boundary of both tracts. The dividing line between the tracts begins at the street and runs from southwest to northeast, to the rear of the tracts. The respective legal descriptions of the tracts are such that there is neither an overlap nor a gap anywhere along their common boundary.
Hazel testified that before she and Edward bought their property, one of their grantors showed her iron stakes at the four corners. In the fall of 1963, after she and Edward moved in, they planted trees on the south side of their property, near, but north of, the boundary shown by the stakes. In the spring of 1964, they established flowerbeds in the same area.
Hazel and Edward were divorced, apparently in late 1969 or early 1970. By deed dated January 21, 1970, Edward quitclaimed his interest in their property to Hazel. Hazel married her present husband, James Carter, March 21, 1970.
Imelda testified that when she and Agnes moved into their house in October, 1963, there was no physical evidence on the ground showing the boundary between their property and Hazel's. Imelda did not know where the line was until a 1977 survey.
Agnes testified she was likewise unaware of the location of the line until the survey.
Hazel testified that between 1963 and 1977, the trees along the boundary continued to grow, and she maintained the flowerbeds. Other witnesses corroborated this. Hazel explained she had her lawn mowed "about one mower width beyond the trees" toward the Lohrmann house, continuing this practice until time of trial. She added that the trees were sprayed and pruned only by her family.
Imelda testified that from 1963 until the early 1970's, she and Agnes mowed their lawn, and most of the time they mowed up to Hazel's house. Imelda explained they did this "for appearance's sake" because Hazel was not mowing her lawn, and because they were afraid of snakes. According to Imelda, she and Agnes raked Hazel's leaves almost every fall until Hazel married James. In the early 1970's, Imelda and Agnes hired a man to do their mowing, and, at the request of Hazel and James, Imelda had the man mow Hazel's lawn at the same time. Imelda did not recall Hazel ever having the trees trimmed; Imelda said she (Imelda) did that "all these years."
Agnes corroborated Imelda's testimony about the mowing and tree trimming.
Imelda testified she "instigated" the 1977 survey because a lot at the rear of her property was "in an estate," and had been in dispute for several years. Hoping to avoid involvement in that quarrel, she decided to have her property surveyed so she and Agnes could put up a fence between their property and the lot in the estate. Several other residents in the neighborhood, including Hazel and James, decided to have their property surveyed at that time. John Mackey, a civil engineer and registered land surveyor, was retained by the group to do the surveys.
Mackey found no pins marking the line between Hazel's property and the Lohrmann property. When Mackey established the line between those properties, he staked the west end of the line some six to seven feet north of where Hazel believed it should be. Evidently, Hazel agreed with where Mackey staked the east end of the line. According to the line fixed by Mackey, the trees and flowerbeds were on the Lohrmann property.
Imelda testified that after Mackey's survey, Hazel said she wanted to buy some of the Lohrmanns' land. Hazel denied this. No sale occurred.
Imelda recalled that after the survey, she instructed the people who mowed her lawn to mow to the line established by Mackey.
In 1978, Imelda and Agnes had one of the trees in the disputed area removed because it was puny and had dead branches. Hazel testified she did not approve of this, but admitted she made no complaint to the Lohrmanns.
In 1979 or 1980, the Lohrmanns, after several complaints to Hazel's husband, James, that the flowerbeds were unkempt, "just mowed them down."
On February 4, 1980, Imelda and Agnes decided to remove two more trees in the disputed area. When the tree crew arrived the Lohrmanns received a telephone call from Hazel's attorney. As a result of that call, the trees were left intact.
A few weeks later, Imelda and Agnes filed this action against Hazel, praying that Hazel be enjoined from entering the land south of the line established by Mackey, and asking the court, by declaratory judgment, to fix and determine the boundary between the two tracts.
Hazel counterclaimed, alleging that from and after February 5, 1963, she occupied and claimed ownership of the parcel between the Mackey line and the line she was shown when she bought her property. Hazel alleged the Lohrmanns made no claim to that parcel until March, 1980. Hazel sought a decree adjudicating her to be the owner of the parcel by adverse possession.
Before trial, Robert Elgin, a civil engineer and registered land surveyor, surveyed the disputed area for Hazel. Elgin established the west end of the dividing line some six feet south of the pin set by Mackey. Elgin agreed with the location of Mackey's pin at the east end of the line. According to the line established by Elgin, the trees and the area where the flowerbeds had been are on Hazel's property. Elgin's line is just slightly north of the line Hazel claims she was shown in 1963.
Because both the Mackey line and the Elgin line run from southwest to northeast, and because both terminate on the east at the same point, the Elgin line, beginning further south than the Mackey line on the west, is longer. The Elgin line is 151.08 feet long, the Mackey line 147.64 feet. Thus, the three-sided parcel in dispute has a west dimension of between 6 and 7 feet, a north side measuring not quite 148 feet, and a south side running just over 151 feet.
The trial court decreed that the Mackey line is the correct boundary between Hazel's property and the Lohrmann property, and that Hazel has no right, title or interest in any land south of the Mackey line. The court denied the Lohrmanns' request for injunctive relief, and dismissed Hazel's counterclaim.
Hazel bases her assignment of error on a colloquy between her attorney and the trial court near the end of the trial. The attorney asked whether the court intended to take the case under advisement, then this occurred:
Trial ended August 13, 1982. Judgment was entered September 13, 1982.
Hazel does not attack the trial court's choice of the Mackey line over the Elgin line. Her complaint is simply that the trial court erred in dismissing her counterclaim. She asserts she acquired ownership of the disputed parcel by adverse possession, regardless of where the true boundary lies.
Hazel argues that the trial court's remarks amount to an erroneous application of the law to the facts. She says the court concluded that inasmuch as neither Imelda nor Agnes knew the location of the common boundary, Hazel's possession of the disputed parcel could not be hostile.
Hazel asserts that for possession to be hostile, the law does not require the record owner to know where the boundary lies, or to be aware that the land occupied by the claimant is land to which the owner holds record title. Hazel contends it is likewise...
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