Moss v. James
| Decision Date | 09 January 1967 |
| Docket Number | No. 2,No. 52255,52255,2 |
| Parties | James Winfred MOSS and Mildred E. W. Moss, Husband and Wife, Paul S. Hollenbeck, Trustee, Alex C. Hayes, Jr., and Anna Hayes, Husband and wife, Appellants, v. A. L. JAMES and Carney James, Respondents |
| Court | Missouri Supreme Court |
Harold S. Hutchison, Vienna, Claude T. Wood, Richland, for plaintiffs-appellants.
Northern & Crow, Rolla, for defendants-respondents.
This case involves title to real estate located in Maries County, Missouri. Appellants Moss commenced the action in the Circuit Court of Maries County, Missouri, by petition for injunctive relief and for damages for trespass. Respondents James counterclaimed asking the Court to quiet title in respondent A. L. James on the theory of adverse possession. The trial court, without a jury, found against appellants on their petition, and for respondent A. L. James on the counterclaim.
The area in dispute is located in the Southeast Quarter of Section 27, Township 39, Range 9, in Maries County, Missouri. It consists of a narrow strip of land bounded on the north by a county road, on the south by Dry Creek, on the east by a low-water bridge, and on the west by the North and South Midline of Section 27. The county road runs east and west. Dry Creek flows in an eastwardly direction.
The basic cause of the controversy was a survey made in 1940 which erroneously placed the North and South Midline of Section 27 at the low-water bridge. The accurate location of the North and South Midline of Section 27 is a line approximately 1300 feet west of the low-water bridge.
The record title to the disputed area is in appellants. Respondents assert ownership by adverse possession. The record indicates a lack of express notice to appellants of an adverse assertion of ownership by respondents until the early part of September, 1963, and that respondents did not pay taxes on the land in dispute.
Appellant James Winfred Moss purchased his land in 1959. He testified that thereafter he exercised all the rights of ownership on the land in dispute, which included cutting wood from it and hauling gravel out of it, and that at no time did the respondents protest.
The evidence is conflicting and confusing as to what portion of the area in dispute was fenced by respondents for the statutory period. It is obvious that the whole area was not fenced. A fence extended from the west boundary line of the disputed area along the county road for some distance, then crossed the disputed area to the creek, and then extended on east to the low-water bridge.
Respondent A. L. James testified he received a deed from Christy Davis in 1940, and has been in possession of the land in dispute ever since. After he purchased the land he sold gravel from a location about thirty yards above the bridge. He pastured cattle south of the road and west of the bridge a good many years, how many he did not know, but he supposed it was more than ten years. He said he pastured the land 'off and on' and he cut hay from the disputed area for a period which could be more than ten years. He was paid for gravel from the disputed area for the construction of Highway Y in 1961. The W.P.A. took gravel from the area for their roads. He cut four or five dead elm trees and some sycamore sprouts in the area and nobody objected. In 1943 gravel was taken from the disputed area to build a bridge. Charley Finn was the overseer of the bridge and he took the gravel to build the bridge and obtained permission from James. The Ajax Pipeline 'sprung a leak' and spilled some oil in 1950 which killed some timber in the disputed area. Ajax made a settlement with James for the damage and paid him $500.
Respondent Carney James testified that he is the son of respondent A. L. James and has lived on his father's farm for about fifteen or twenty years. He testified that he and his father claimed everything south of the county road as far east as the low-water bridge because 'it was where the surveyor said the true boundary line was.' When appellants' counsel attempted to get Carney James to admit respondents were claiming the land south of the county road as far to the east as the low-water bridge because they thought that was the true boundary line, he answered by saying, 'we claimed it because we had possession of it.' According to Carney James, he and his father had been in possession of the land in dispute for over twenty-five years. He testified that since 1940 he and his father had removed twenty-five or thirty thousand yards of gravel, had cut three or four cords of wood, and had changed the channel of Dry Creek, all in the area between the county road and Dry Creek and west of the low-water bridge. He further testified that he had rented the area from his father starting in 1945, had pastured his cattle in the area, had cut hay from it, and that in 1950, when a pipeline broke and the oil caught on fire, he and his father were paid $500 for the damage done to the area between the creek and the road and west of the bridge.
The decree of the trial court reads in part as follows: '(T)he Court * * * being fully advised of and concerning the premises on this 17th day of May, 1965, finds the issues herein joined against the plaintiffs on Count I and Count II of plaintiffs' petition and for the defendants, A. L. James and Carney James, on their counterclaim; and Finds, adjudges and decrees that defendant A. L. James is vested with the fee simple title to the real estate hereinafter described having established title by adverse possession under Section 516.010 of the Statutes of Missouri, to wit:
'That part of the Southeast Quarter (SE 1/4) of Section 27, Township 39 North, Range 9 West in Maries County, Missouri bounded on the North by County Road, on the South by Dry Creek, on the East by a low-water bridge and on the West by the North and South midline of said Section 27.
'And the Court further finds, adjudges and decrees that plaintiffs have no right, claim or interest in said estate or title whatsoever, either legal or equitable in or to said real estate.'
We determine whether the trial court was warranted under the evidence in establishing title by adverse possession in respondent A. L. James. 'There are five essential elements necessary to constitute an effective adverse possession: First, the possession must be...
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Teson v. Vasquez
...questions of law and fact in which the application of the facts to the law presents the major issues of controversy. See Moss v. James, 411 S.W.2d 104 (Mo.1967). Moreover, our task is further complicated by the fact that every piece of property is unique. Thus, in determining whether the fa......
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...disclaimer, 3 Am.Jur.2d Adverse Possession § 37, and the burden to establish adverse possession is on the one claiming it. Moss v. James, Mo., 411 S.W.2d 104. While plaintiff paid taxes, rented the property, and made certain repairs, we find nothing which would authorize a finding that she ......
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...v. Colombo, Mo., 457 S.W.2d 695, 700(5). No title by adverse possession can ripen should any of these elements be absent. Moss v. James, Mo., 411 S.W.2d 104, 107(1). Even should we assume the stipulation established the last four elements, supra, it does not necessarily follow that the stip......
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