Renensland v. Ellenberger

• Court: Kansas Court of Appeals
• Writing for the Court: ABBOTT
• Citation: Renensland v. Ellenberger, 574 P.2d 217, 1 Kan.App.2d 659 (Kan. App. 1977)
• Decision Date: 18 November 1977
• Docket Number: No. 48780,48780
• Parties: Howard RENENSLAND and Shirley J. Renensland, Appellants, v. Abram ELLENBERGER et al., Appellees.

Page 217

574 P.2d 217

1 Kan.App.2d 659

Howard RENENSLAND and Shirley J. Renensland, Appellants, v. Abram ELLENBERGER et al., Appellees.

No. 48780.

Court of Appeals of Kansas.

Nov. 18, 1977.

Syllabus by the Court

1. Whether or not a possessor acquires title by adverse possession is a question of fact, and the resolution of such a factual question is binding on appeal if based on substantial competent evidence.

2. The payment of real estate taxes is not a prerequisite to acquiring title by adverse possession. However, it is a factor that may be considered in determining whether a belief of ownership exists or a claim is knowingly adverse.

3. A cotenant who has actual knowledge of the existence of other cotenants cannot hold title adversely to the other cotenants until the other cotenants have knowledge or notice of the fact of the adverse possession.

4. An integral part of a partition action is resolving the question of the value of improvements placed on the realty in good faith by the occupant and offsetting the value of the improvements by the rents and profits received by the occupant.

5. The record is examined and it is held that: (a) There is substantial competent evidence to support the trial court's finding that the requirements for adverse possession pursuant to K.S.A. 60-503 were not met; and (b) the trial court erred in not resolving the question of the value of the improvements to the realty made by plaintiffs in good faith and offset by the rents and profits received by the plaintiffs.

Robert D. Beall, Leavenworth, for the appellants.

E. Roger Horsky, of Horsky & Pray, Leavenworth, for the appellees.

Before ABBOTT, P. J., and SPENCER and PARKS, JJ.

ABBOTT, Presiding Judge:

This is an appeal from a judgment of a district court denying plaintiffs' prayer that title to real estate be quieted in them. The court quieted title in the plaintiff-appellant, Howard Renensland, and in the defendants-appellees, who are Howard Renensland's five brothers, three living sisters, and the three children of a deceased sister. The court also decreed partition.

All of the parties to this appeal, other than plaintiff's wife, Shirley J. Renensland, are the heirs of George Renensland, deceased. George Renensland died in 1942.

The real estate in question consists of approximately 160 acres and lies to the east of the Missouri Pacific Railroad and abuts the west bank of the Missouri River. Prior to 1954, the quarter section had on occasion been part of the river channel and was overgrown with timber. The property was subject to regular flooding. Plaintiff reclaimed the land by removing timber, building levees, constructing ditches and flood gates, and leveling the land to provide drainage. None of the witnesses disputed the fact plaintiffs expended a considerable sum of money to improve the land. Plaintiffs leased the farm land to a third party on a sharecrop basis. Rent was never paid to any of the other heirs, nor was an accounting ever requested or given.

In 1972, the heirs (excluding plaintiff) decided to sell the family land and they advertised it for sale. Forty acres not involved in this case were sold, and the proceeds were divided equally. Plaintiffs then filed this quiet-title action naming other parties and the appellees, Addison A. Renensland, Gilbert G. Renensland, Wesley Renensland, and Elaine Nichols, as party defendants. The four named defendants along with Clifford Renensland, Russell Renensland, Bertha Spain Whicker, and Winifred Alfrey filed an answer and "cross-petition" setting out their claim of ownership and requesting that title be quieted in them and that the land be partitioned. The three children of Mabel Ritchie, individually, filed voluntary entries of appearance. The plaintiffs did not file a reply to the cross-petition. A pretrial conference was conducted. However, no record was made and no pretrial order was filed. When the plaintiffs' attorney made his opening statement, he announced an alternate request for the value of improvements made by plaintiffs. During the course of the trial to the court, plaintiffs presented evidence without objection on the issue of improvements. No request was made at any stage of the proceedings to amend the pleadings.

The trial court found that plaintiffs' evidence failed to establish they had been in open possession of the real property in question within the meaning of K.S.A. 60-503 and that plaintiffs had not established their possession to be under a belief of ownership. The court then found that any claim plaintiffs may have had for the value of the improvements made to said real property was not properly before the court in this action and denied plaintiffs' prayer to quiet title in them. Title was then quieted in the names of the heirs of George Renensland, and a decree of partition was entered.

Plaintiffs then filed a motion requesting the trial court to amend its findings, to make additional findings, and, in the alternative, to clarify the judgment. The motion was denied and this appeal followed.

Plaintiffs contend the trial court erred in not making findings of controlling facts and controlling principles of law. Basically, plaintiffs' objection is twofold: That one cannot ascertain the basis for the court's conclusion that the plaintiffs' claim for the value of improvements was not before the court, and that the court disregarded evidence of the value of improvements and failed to make findings concerning the value of improvements made by plaintiffs.

The trial judge is required by statute to state either orally or in writing the controlling facts (K.S.A. 60-252(a )) and the controlling principles of law (Rule No. 165, K.S.A. 60-2702a).

The findings of fact and conclusions of law must be adequate to permit meaningful appellate review and should be sufficient to resolve the issues and advise all concerned of the reasons for the decision and the standards applied by the trial court. (Mies v. Mies, 217 Kan. 269, 535 P.2d 432; Read v. Estate of Davis, 213 Kan. 128, 515 P.2d 1096; Andrews v. Board of County Commissioners, 207 Kan. 548, 555, 485 P.2d 1260.)

The findings and conclusions could have been expanded by the trial court in this case and the decision thus strengthened. However, a general finding in favor of defendants and against the plaintiffs raises a presumption that the trial court found all facts necessary to sustain the decision. (Adventure Line Mfg. Co. Inc. v. Western Casualty & Surety Co., 214 Kan. 820, 822, 522 P.2d 359.) In view of our disposition of this case, the trial court's findings of fact and conclusions of law are sufficient to resolve the issues and permit meaningful review.

Appellants argue that some of the findings are contrary to the evidence. Some evidence is conflicting, but it is not the function of the appellate court to weigh conflicting evidence or determine the credibility of witnesses. That function properly belongs to the trier of facts. (Schreiner v. Schreiner, 217 Kan. 337, 340, 537 P.2d 165.) There is sufficient evidence in the record to support the trial court's findings with the exception of the trial court's ruling that the question of the value of improvements was not properly before the court. That issue will be dealt with hereinafter.

Plaintiffs argue that the trial court erred in finding that the plaintiffs were not in open possession under a belief of ownership within the meaning of K.S.A. 60-503.

Whether or not a possessor acquires title by adverse possession is a question of fact, and the resolution of such a factual question is binding on appeal if based upon substantial competent evidence. (Truck-Trailer Supply Co. Inc. v. Farmer, 181 Kan. 396, 311 P.2d 1004; Ames v. Brooks, 179 Kan. 590, 297 P.2d 195.)

Plaintiffs rely on four cases to support their position that the requirements of K.S.A. 60-503 were satisfied. A review of the cases discloses they are of no help to plaintiffs.

In Morehead v. Parks, 213 Kan. 806, 518 P.2d 544, the defendant asserted adverse possession as a defense to a quiet-title suit. Defendant received title by a quitclaim deed from an aunt who had been in possession for thirty years. The deed erroneously described the real property. The defendant farmed the land, paid the taxes, participated in soil conservation programs, and was in sole possession of the property. The trial court determined defendant had been in open possession for the required fifteen-year period. The only similarity to the case at hand that favors plaintiffs is the fact the adverse possessor raised crops and participated in soil conservation programs. Those two factors were not determinative factors in the court's decision. There was no fiduciary relationship in Morehead, supra, as we have in the case at bar in which the quiet-title action was instituted by a cotenant. Park was in open possession under belief of ownership for over fifteen years and had paid the taxes on the property.

Plaintiffs cite Armstrong v. Cities Service Gas Co., 210 Kan. 298, 502 P.2d 672, for authority that constructive notice of what is imparted by public records is no longer a defense to adverse possession. A divided court in Armstrong, supra, so held and the court has since affirmed its holding. (Moore v. Bayless, 215 Kan. 297, 524 P.2d 721; Wallace v. Magie, 214 Kan. 481, 522 P.2d 989; Morehead, supra.) Howard, Armstrong dealt largely with the "belief of ownership" concept that the legislature had added to the adverse possession statute. A portion of the case is no comfort to plaintiffs. At page 309 of 210 Kan., at page 681, of 502 P.2d, the court stated, "(T)he legislature had in mind an element of good faith, that is, the belief must be in good faith and reasonable under all the facts and circumstances." The court stated further at pp. 311-312, 502 P.2d at p. 683, "The question of what constitutes good faith in one claiming to hold property under a belief of ownership is a question for the...