McCord v. Gates

• Decision Date: 31 August 2004
• Docket Number: No. WD 63319.,WD 63319.
• Citation: 159 S.W.3d 369
• Parties: Larry L. McCORD, Sr. and Edith Ereline Mccord, Respondents, v. Stephen Jewell GATES and Patricia L. Lloyd, Appellants, Pete L. Phipps and Carrie Phipps, Respondents.
• Court: Missouri Court of Appeals

159 S.W.3d 369

Larry L. McCORD, Sr. and Edith Ereline Mccord, Respondents, v. Stephen Jewell GATES and Patricia L. Lloyd, Appellants, Pete L. Phipps and Carrie Phipps, Respondents.

No. WD 63319.

Missouri Court of Appeals, Western District.

August 31, 2004.

Rehearing Denied May 3, 2005.

Christopher C. Fink, Cameron, MO, for appellants.

Larry L. McCord, Jr., Cameron, MO, for respondents, McCord.

Dawn R. Harpster, Cameron, MO, for respondents, Phipps.

Before VICTOR C. HOWARD, P.J., ROBERT G. ULRICH and PATRICIA A. BRECKENRIDGE, JJ.

ROBERT G. ULRICH, Judge.

Stephen L. Gates and Patricia L. Lloyd (now Patricia L. Gates), husband and wife, appeal the August 18, 2003, judgment quieting and confirming title to certain real property in Larry L. McCord, Sr. and Edith Ereline McCord, husband and wife, as against the Gates' claim to the property. The Gates also appeal the portion of the judgment in this court-tried case quieting and confirming title to certain other real property in Pete L. Phipps and Carrie Phipps, husband and wife, third-party defendants, against any claim of the Gates in this property. The portion of the judgment finding in favor of the McCords and awarding them tract B of the disputed property is affirmed. The portion of the judgment finding in favor of the Phipps and awarding them tract A of the disputed property is reversed. The case is remanded with directions.

Procedure and Facts

Larry and Edith McCord filed suit to quiet title to certain real property naming Stephen Gates and Patricia Lloyd as defendants. This disputed property is a rectangle and measures approximately thirty feet wide by one hundred thirty-seven feet long and is referred to herein as tract B. The McCords' amended petition asserted that they acquired ownership of a larger area of real property in Clinton County by warranty deed on June 4, 1974. Tract B is located within the legal description of the property thus acquired. The McCords alleged that tract B has been in their and their ancestors' exclusive possession by virtue of a warranty deed dated November 1, 1916, and recorded in the Recorder of Deeds Office, Clinton County. Mr. McCord testified that he obtained the property in 1987 from his father who had obtained the property in 1914 from his father. The McCords further asserted that they have been in open, notorious and hostile possession of the described disputed property since November 1, 1916, apparently referring to their actual possession and that of their ancestors. Mr. McCord claimed to have resided on the property for fifty years. The McCords sought the trial court's judgment awarding them exclusive ownership and the right of possession in tract B.

Stephen Gates and Patricia Lloyd responded to the McCord petition by filing their answer, a counter-claim, and an action in ejectment asserting their ownership and right to possession in property that includes the disputed tract B. They claim to have received a warranty deed to the property on February 14, 1997.

The Gates also filed their third-party claim, naming as third-party defendants Pete and Carrie Phipps, asserting that the Phippses are wrongly in possession of certain other property that the Gates hold by warranty deed. This property is referred to as tract A. The total property in dispute, tract A and most of tract B, all of which is claimed by the Gates, forms a rectangle measuring ninety feet by two hundred thirty-one feet. Thus, tract B references the portion of the total disputed property the McCords claimed to occupy and for which they sought the court's judgment declaring them the rightful owners. Tract A references the portion of the disputed property that the Gates claimed the Phippses wrongfully occupy and for which they sought declaration of rightful ownership. The Phipps answered the cross-claim and were represented at trial. No dispute regarding real property exists between the McCords and the Phippses.

Thus, this is a boundary line dispute between contiguous neighbors. The Gates claim property interests against both the McCords (tract B) and the Phippses (tract A). Mr. McCord testified that a fence once marked what he believed to be the eastern boundary separating the McCord property from what is now the Gates property. The fence was torn down years ago leaving a furrow or ditch that traced the old fence line. A portion of the shallow ditch remains today. Mr. McCord testified that he observed Mr. Gates attempt to fill in the furrow. A large white post remains along the fence line at the end of the McCord property line indicating the location of the boundary line. Mr. McCord planted an annual garden on the disputed property (tract B) before the Gates moved to their present property, and he continues to plant the annual garden. Mr. McCord testified that he has manifested his claim of ownership and possession of the disputed tract B by planting a garden on the disputed tract B since at least 1987 and by openly asserting ownership of the property, excluding all others from the property except by his exclusive permission, for more than ten years.

Gerald Barnes, a licensed land surveyor with thirty-one years of experience, testified in behalf of the McCords. He surveyed the north/south boundary of the east side of the McCord property, also constituting the west side of the Gates property. He made a drawing reflecting the results of his survey, and it was introduced as Exhibit A without objection. Exhibit A demonstrated a rectangular property 28.54 feet by 137 feet. Mr. Barnes stated that Exhibit A reflects the property disputed between the McCords and the Gates (tract B). Mr. Barnes also stated that the beginning point of the property line is accurately reflected on Exhibit A.

The Gates called Floyd Hayes to testify. He, too, is a licensed surveyor who was hired by the Gates to conduct a survey in the year 2000. He surveyed the disputed property, first examining the deeds that conveyed the Gates property to them, deeds of previous conveyances, and conveyances of adjacent property to both the east and to the west of the Gates property. Tract B of the disputed property is to the west of the Gates property and contiguous to it. The portion of the McCords' property that is not disputed and that is not a part of this suit is south of the Phipps' undisputed property and contiguous to it. Mr. Hayes stated the confusion is in part attributable to the beginning point referenced in the McCord deed and the beginning point of a 1970 survey of the Cooper Villa plat (then proposed lots and streets for residential construction), developed to the north and east of tracts A and B and not contiguous to them. The beginning points used in the two descriptions is not the same. Mr. Hayes stated that the 1970 survey was errant. The legal description appearing in the Gates 1997 deed is based on the 1970 Cooper Villa plat survey. The legal description in the McCord deed is the same legal description appearing in the 1916 deed transferring title to the McCord property to Mr. McCord's father and describes the real property by referencing its location to and within sections. The Cooper Villa subdivision was platted by the 1970 survey and did not exist when the 1916 McCord deed was recorded. Mr. Hayes said that Walnut Street, a north-south street referenced on the west side of the Copper Villa plat and to the west of the Gates property, which is located both to the south of a portion of the plat and to the west of a portion of the plat, includes a portion of the Phipps and McCord undisputed properties on their west and northwest respectively. He testified the Cooper Villa plat shows that Walnut Street includes the approximately thirty additional feet claimed by the Gates and that the McCord legal description actually includes thirty feet to the west of the property they now occupy and not the approximately thirty feet to the east of the property that they now occupy and claim as tract B. The confusion is due to the errant 1970 survey and other errors, including the establishment of a section boundary by survey of greater length than that of a standard section boundary. Mr. Hayes attributes these errors for the approximately thirty foot conflict between the parties' property claims to the east of the Phipps and McCord properties and to the west of the Gates property. The Gates legal description makes no references to sections, as does the McCord legal description. It references the Cooper Villa, and, thus, the errant 1970 survey represented by the Cooper Villa plat of record. Mr. Hayes' conclusion was that, although the McCord legal description is the same as that of the 1916 deed, the deed does not encompass any of the disputed property, and particularly tract A, because the location of the deed description was errantly identified on the ground. The Gates legal description as stated in their 1997 deed includes the disputed tracts A and virtually all of B.

Mrs. Gates testified that she and her husband claim the disputed property identified as tract A and virtually all of tract B, which are to the west of the Gates undisputed property. She claims ownership and the right to possession of the property described in the legal description of the property that she acquired in 1997, which she claims includes the disputed tracts A and B. She also stated that the disputed property identified as tract A was land upon which she and her husband maintain a garden. A shed had been on the property, but she and her husband tore it down when tenants that lived in the Phipps' home before they acquired it put trash in the building.

The Phipps did not testify and did not offer any other evidence.

Following presentation of the evidence, the trial court awarded the legal rights appurtenant to ownership of tract B as specifically identified by Mr. Hayes' survey to the McCords, finding that they acquired that portion of the disputed property by adverse possession by their open,...