Ortmeyer v. Bruemmer

• Decision Date: 30 October 1984
• Docket Number: No. WD,WD
• Citation: 680 S.W.2d 384
• Parties: Gilbert F. ORTMEYER and Virginia Ortmeyer, Plaintiffs-Appellants, v. Roger Lee BRUEMMER and Grace Marie Bruemmer, et al., Defendants-Respondents. and Walter C. Plefke, et al., Third-Party Defendants-Respondents. 34850.
• Court: Missouri Court of Appeals

Page 384

680 S.W.2d 384

Gilbert F. ORTMEYER and Virginia Ortmeyer, Plaintiffs-Appellants, v. Roger Lee BRUEMMER and Grace Marie Bruemmer, et al Defendants-Respondents and Walter C. Plefke, et al., Third-Party Defendants-Respondents.

No. WD 34850.

Missouri Court of Appeals Western District.

Oct. 30, 1984.

Robert L. Hyder, Jefferson City, for plaintiffs-appellants.

Michael Riley, Jefferson City, for defendants-respondents.

Kenneth E. Weinfurt, Kansas City, for third-party defendants-respondents.

Before PRITCHARD, P.J., and MANFORD and NUGENT, JJ.

NUGENT, Judge.

Gilbert F. Ortmeyer and Virginia Ortmeyer appeal from a circuit court dismissal at the close of plaintiffs' evidence of their action to quiet title to a small tract of realty and for injunctive relief based upon adverse possession or parol gift. We reverse in part and affirm in part.

This case involves a dispute over the ownership of a .92 acre tract located on Bruemmers Island in the Osage river and over the right to use the only roadway leading to the tract. The Ortmeyers filed their action to quiet title and for injunctive relief in the circuit court claiming ownership and title based on adverse possession or parol gift. They also claim a right to use the road leading to the cabin and ask for an injunction prohibiting the Bruemmers from blocking the road leading to the disputed tract.

The court tried the case without a jury and at the close of plaintiffs' evidence sustained defendants' motion for a directed verdict. ¹ The court also found that plaintiffs, having failed to carry their burden to show ownership of the disputed tract by adverse possession, have no right to use the road leading to it. ²

The record reveals the following: In 1955 Annie Bruemmer owned a farm which included a forty-acre island in the Osage River. At trial, plaintiffs offered to prove by the testimony of Bob Roark that he was present in 1955 when Annie Bruemmer gave her grandson, Francis (Bud) Van Loo, a tract of land on the island, telling him to pick out an acre of ground that was not being farmed and to build a cabin on it. Many, many times she told him to get the acre surveyed, but Bud would say, "I don't have the money, as soon as I get the money I'll get it done."

Plaintiffs also offered the testimony of Annie's son, Joe Bruemmer, to the effect that in 1955 his mother made a gift of the island tract to Bud and his wife (now plaintiff Virginia Ortmeyer). On the offer of proof, he testified that "Bud and Sis come over to the house and mom told him he could have a piece of ground anywhere he wanted on that island." The oral gift was made during conversations Annie had with Bud Van Loo at the "kitchen table." Plaintiffs attempted to show the oral gift of land by still a third witness, Charles McDaniel. He testified in an offer of proof that in his presence Annie Bruemmer told Bud to pick out a place on the island and build a place for himself and his family.

To all of this testimony about the oral gift defendants interposed the objection ³ that plaintiffs were attempting to prove an oral conveyance of land in violation of Missouri's Statute of Frauds, § 432.010. ⁴ The court sustained those objections.

Plaintiffs' evidence tended to prove that in 1955 or 1956, after the alleged gift, the Van Loos selected and cleared a wooded .92 acre tract on the island and there built a cabin atop concrete pillars. The tract was never fenced or otherwise identified except that it was bounded by uncleared natural growth of trees. Neither Van Loo nor the Ortmeyers ever had the tract surveyed until after this case was filed. They never received a deed to the land nor any other written evidence of their claim.

Plaintiffs' proof showed that Virginia and Bud Van Loo occupied the land as a weekend and vacation home until his death in 1967. In 1968 the Ortmeyers were married and continued the occupancy and use of the land. The cabin was connected for electrical service and ultimately was improved by the addition of a bathroom with a shower, a large bedroom, a well, siding, expansion of the original cabin, a new roof, an equipment shed, and the improvement of the road leading to it, all at plaintiffs' expense, the Ortmeyer improvements alone costing about $7,000. The cabin was furnished with a refrigerator, a deep freeze, a stove and hot water heater, beds and tables. Only the members of the family had keys to the cabin doors, which were kept locked.

Defendants Roger Lee Bruemmer and Grace Marie Bruemmer are undisputed owners of the rest of the forty-acre island. They also own the 290-acre mainland Bruemmer farm, which they acquired by deed from Roger's father, Ralph Bruemmer, who in 1958 had acquired his title from his mother, Annie Bruemmer.

The defendant Bruemmers do not dispute the continued occupancy of the disputed tract by the Van Loos and then the Ortmeyers from 1955 to 1980. They used the property during those years without protest or any interference from any of the Bruemmers. On many occasions, in the operation of the farm the Bruemmers crossed the tract on the road which led to their field on the island without protest from the Van Loos or the Ortmeyers. In 1980, however, defendant Roger Bruemmer locked a gate across the roadway leading to the cabin. Claiming ownership of the disputed tract, he also changed the locks on the cabin. At trial the defendants' questioning of the witnesses indicated that they would take the position that the plaintiffs' occupancy of the tract was merely permissive, that plaintiffs possession was not hostile to the Bruemmers' ownership, that it was neither exclusive nor continuous and that the precise boundaries of plaintiffs' claim were never established.

Virginia Ortmeyer testified that she and her husband (apparently referring to Francis Van Loo) had attempted a number of times to get a deed to their .92 acre tract from Ralph and Floretta Bruemmer. They never declined to sign such a deed but told her that they had to wait until Annie Bruemmer had been dead ten years. Later the Bruemmers told her that they could not find the point "where to survey." She described Ralph and Floretta as her "friends." They had never either acknowledged or denied that the tract was the Van Loos. She said that "they let us build and didn't tell us it was not ours."

She also stated that until 1980 her relationship with defendant Roger Bruemmer had always been friendly. On one occasion in about 1979, Roger called Virginia Ortmeyer to request the use of the cabin for a bachelor's party for one of his friends. The Ortmeyers let him use it, but sent her son Tom Van Loo to chaperone the party.

Virginia testified that the first time the plaintiffs ever heard of Roger Bruemmer's claim of ownership of the disputed tract was in 1979 or 1980, shortly before he locked them out. He called them to his house and requested that they sign a lease, thereby recognizing him as the owner and their landlord. Roger's father, Ralph, had never advised the Van Loos or the Ortmeyers of any interest he had in the property, nor had he ever asked for the use of the cabin. The Van Loos and the Ortmeyers had never had to be given permission to use the road to go down to the island. Ralph had said that it was an "open road," and many people used it to go down to the gravel bar on the island. The only use either Ralph or Roger Bruemmer made of the disputed land was to cross it on the road to their field. Otherwise, they never came to the cabin or the tract unless invited. She testified that, but for the Bruemmers traversing the road, the plaintiffs and the Van Loos had exclusive use of the .92 acre tract.

Witnesses Bob Roark, a lifetime friend of Bud Van Loo, Joe Bruemmer (uncle of both Bud Van Loo and defendant Roger Bruemmer), and neighbors and friends Charles McDaniel, Gary Davidson, Paul Hunton, and Walter Schoperle all testified that they had done work for the Van Loos in clearing the land and building and improving the cabin over the years after 1955. They identified the area shown on the survey map as the land occupied during those years by the Van Loos and the Ortmeyers as their property.

On several occasions in the years before 1980, the Bruemmers borrowed upon the security of the farm, including, apparently, the disputed tract and the cabin on the island. The record does not show whether the applications for those loans revealed the improvements on the island. At the time this action was filed, the Federal Land Bank and the Farmers Home Administration held notes secured by deeds of trust conveying the farm including all of Bruemmers Island. The trustees named in those deeds of trust and the two federal agencies were joined as parties. At trial the United States Attorney represented them.

The scope of our review is set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.1976) (en banc). In this case, we find that the circuit court erroneously applied the law in excluding plaintiffs' evidence of Annie Bruemmer's alleged gift or conveyance of the disputed tract to Francis and Virginia Van Loo. Since no findings of fact and conclusions of law were made, all issues are deemed to have been decided in accordance with the judgment.

The Ortmeyers raise several points on appeal. As we understand their brief, they claim that the trial court erred in excluding the testimony of the non-party witnesses concerning Annie Bruemmer's alleged gift to the Van Loos. They also assert that they are owners of the tract by adverse possession or valid contract. We hold that the trial court committed prejudicial error in refusing to admit the testimony concerning the transaction. Therefore, the case must be retried.

On appeal, the Ortmeyers assert that the trial court erroneously applied Missouri's Dead Man's Statute, § 491.010, in excluding the questioned testimony of the non-party witnesses. But, as the defendants correctly point out, the evidence was excluded on the grounds that plaintiffs were...