Martin v. Hinnen

• Citation: 590 P.2d 589, 3 Kan. App. 2d 106
• Case Date: Friday February 16, 1979
• Court: Kansas Court of Appeals

Page 589

590 P.2d 589

3 Kan.App.2d 106

Russell MARTIN, Appellant, v. Ralph L. HINNEN et al., Appellees.

No. 49087.

Court of Appeals of Kansas.

Feb. 16, 1979.

Syllabus by the Court

In a boundary dispute case involving claims of adverse possession by hostile holding and under a belief of ownership; boundary-by-agreement, either express or implied; and estoppel, the elements of each claim are reviewed and it is Held : the trial court's findings of fact and conclusions of law are inadequate to disclose either the controlling facts or the law applied and thus to permit meaningful appellate review.

Jack N. Turner, of Turner Law Offices, Chartered, Derby, for appellant.

James B. McKay, Jr., of McKay, McKay & Hargrove, El Dorado, for appellees.

Before FOTH, C. J., and ABBOTT and REES, JJ.

FOTH, Chief Judge:

This is a boundary dispute between the owners of two adjacent sections of Butler county pasture land. Russell Martin, the plaintiff, owns section 8, the eastern section. Ralph Hinnen, the original defendant, owned section 7 immediately to the west of plaintiff's section at the time this quiet title suit was filed. He died during the pendency of the action and his executors were substituted as defendants. Defendants counterclaimed to quiet their title to the disputed strip of land and for damages. The trial court found title to be in defendants but denied the damage claim. Plaintiff appeals.

During the time this case has been under advisement this court has vainly attempted to find some rationale under which we could either affirm or reverse the judgment below and thus put an end to the litigation. We have reluctantly concluded that the trial court's oral decision, containing the only findings of fact or conclusions of law made, is inadequate to disclose either the controlling facts or the law applied and thus to permit meaningful appellate review. Under those circumstances we have no alternative but to vacate the judgment and remand the case for new findings. Mies v. Mies, 217 Kan. 269, Syl. P 3, 535 P.2d 432 (1975). We shall, however, give a brief synopsis of our analysis for such guidance as it may afford the trial court on remand.

The dispute arises because the mile-long north-south fence dividing the sections is east of the true section line, some 133 feet at the north end and 156 feet at the south end. The effect is to cut a strip off of the west edge of Martin's section 8 and tack it onto the east edge of Hinnen's section 7. The trial court determined the location of the fence with respect to the section line as a finding of fact, and this finding is supported by substantial competent evidence.

The parties are agreed that the fence had been in its present location since at least 1928; just when it was first erected or by whom does not appear. There is no evidence of any dispute over the boundary from 1928 until after the parties acquired their present interests in 1970. During that time through various changes in ownership all persons concerned apparently treated the fence as the true section line.

The issues are complicated by the state of the title over the intervening years. Somewhat simplified (ignoring widows and personal representatives) the situation during the three relevant blocks of time was as follows:

1928-1944: Section 7 owned by Louis and Edwin Hinnen, tenants in common, predecessors of defendant Ralph Hinnen; section 8 owned by one Cameron and his successors.

1944-1970: Section 7 owned by defendant Ralph Hinnen and Edwin Hinnen, tenants in common; section 8 owned by Edwin Hinnen. (In 1944 Ralph bought Louis' half interest in section 7, while Edwin acquired all of section 8 and retained his half interest in section 7. For at least the last ten years of this period Ralph ran cattle on both sections, renting all of section 8 and half of section 7 from Louis' widow.)

1970 to date of suit: Section 7 owned by defendant Ralph Hinnen; section 8 owned by plaintiff Martin. (In 1970 both parties acquired interests from the executors of Edwin Hinnen's widow at auction, Ralph Hinnen acquiring the other undivided one-half interest in his section and Martin acquiring all of his section.)

In the early spring of 1972 a grass fire destroyed the fence between the two sections. Before rebuilding Ralph Hinnen approached plaintiff about a joint survey of the line, but plaintiff refused to join. Each party thereafter rebuilt half the fence, adhering to the long established line. It was some two months later that, as a result of a survey on land to the south of the two sections, plaintiff discovered that the fence was located on his section. He thereupon ordered his own survey and started to erect a new fence on the line disclosed by it. When Ralph Hinnen objected plaintiff brought this action to quiet his title.

Plaintiff having established record title to the strip, it then became incumbent on defendants to establish that they had nevertheless acquired title from plaintiff or his predecessors in some legally recognized manner. They asserted three possibilities: (1) Adverse possession, either through (a) hostile holding or (b) occupancy in the belief of ownership; (2) a boundary established by agreement, either (a) express or (b) implied; or (3) estoppel.

As to (1)(a), adverse possession by hostile holding, the cases uniformly hold that the possession of land up to a dividing fence or other boundary under the mistaken belief that it is the true line does not constitute a hostile holding. Edwards v. Fleming, 83 Kan. 653, 112 P. 836 (1911); Kinne v. Waggoner, 108 Kan. 814, 197 P. 195 (1921); Wiburg v. Stevenson, 134 Kan. 530, 7 P.2d 512 (1932); Steinbruck v. Babb, 148 Kan. 668, 84 P.2d 907 (1938); Simpson v. Goering, 161 Kan. 558, 170 P.2d 831 (1946); Craig v. Paulk, 162 Kan. 280, 176 P.2d 529 (1947). Under those and similar cases, only where there is an intent to possess to the fence regardless of where the true boundary is may the possession be said to be hostile. No evidence of such intent was presented here. Since there was no hostility shown the owners of section 7 could have acquired no title to the strip in section 8 by adverse possession requiring hostility.

Those cases also recognize that a boundary might be fixed by agreement, but there must be some evidence from which an agreement may be inferred beyond simple acquiescence in the parties' mutual mistake. Thus in Kinne the court observed:

"It is no longer an open question in this state that adjacent landowners are not estopped to dispute the accuracy of a boundary line which by mistake they have long treated as such, nor does the occupancy of land beyond the true boundary line by an encroaching owner form a basis for adverse possession unless the encroachment is made with intention to claim and hold adversely." Kinne v. Waggoner, 108 Kan. at 819, 197 P. at 197. Citations omitted.

See also Hinnen v. Artz, 99 Kan. 579, 584, 163 P. 141 (1917).

The last two cases cited would also seem to dispose of contention (3), estoppel, if based solely on acquiescence. Whether that element entered into the trial court's conclusion is not clear. We do note that estoppel was not affirmatively pleaded as a defense as required by K.S.A. 60-208(C ), nor do we find evidence of any detrimental reliance. Cf. Place v. Place, 207 Kan. 734, Syl. P 4, 486 P.2d 1354 (1971).

In the arguments of counsel below and in the trial court's findings there are references to boundaries by agreement, closely coupled with repeated recognition of the parties' and their predecessors' belief of ownership of their respective tracts. On the other hand the trial court found no evidence of "any specific agreements in the chain of title." We take this to mean that plaintiff's rebuilding of the fence in 1972 was not the result of an agreement, and that none of the parties' predecessors specifically agreed that the fence would be the boundary regardless of where the true line might be.

The trial court also refers to the line of cases where "the parties acquiesce in these arrangements, and building of fence lines, and circumstantially prove an agreement between the parties." This language is followed by references to the operation of the sections separately under a "belief of ownership," so we are not certain whether the trial court intended to find an agreement by implication or not.

Our review of the boundary-by-agreement cases indicates there are three general categories. The first includes those cases cited above in which there is no evidence of an agreement except the existence of the boundary and the parties' acquiescence. In those cases, as noted, the court invariably holds there is neither an agreement nor any adverse holding.

The second category encompasses cases where an express agreement is found to exist, based on direct (although sometimes conflicting) evidence. It includes: Steinhilber v. Holmes, 68 Kan. 607, 75 P. 1019 (1904); Shafer v. Leigh, 112 Kan. 14, 209 P. 830 (1922); McBeth v. White, 122 Kan. 637, 253 P. 212 (1927); Howell v. Kelly, 129 Kan. 543, 283 P. 500 (1930); Schlender v. Maretoli, 140 Kan. 533, 37 P.2d 993 (1934); In re Moore, 173 Kan. 820, 252 P.2d 875 (1953) and Landrum v. Taylor, 217 Kan. 113, 535 P.2d 406 (1975). The trial court, as noted, found no express agreement, so those cases are inapplicable here.

The third category includes cases where there was no direct evidence of an agreement but the parties through their conduct showed circumstantially that there was an agreement. Our reading of those cases indicates that in each there was something more than mere acquiescence in an existing line: Kyte v. Chessmore, 106 Kan. 394, 188 P. 251 (1920) (after dispute, surveyor fixed line, parties built fence on it and acquiesced thereafter); Blanford v. Biven, 123 Kan. 269, 254 P. 1030 (1927) (seller of lots went out with respective buyers, located boundaries at edge of sidewalk); Wagner v. Thompson, 163 Kan. 662, 186 P.2d 278 (1947) (parties built...