Rohner v. Beets

• Decision Date: 09 April 2013
• Docket Number: No. WD 75327.,WD 75327.
• Parties: Paul ROHNER, Respondent, v. Patricia BEETS, et al., Appellant, Patricia Beets Revocable Living Trust, Appellant.
• Court: Missouri Court of Appeals

396 S.W.3d 458

Paul ROHNER, Respondent,

v. Patricia BEETS, et al., Appellant,Patricia Beets Revocable Living Trust, Appellant.

No. WD 75327.

Missouri Court of Appeals,

Western District.

April 9, 2013.

Cory L. Atkins and Mark M. Haddad, Kansas City, MO, for respondent.

George E. Kapke, Lee's Summit, MO, for appellants.

Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.

CYNTHIA L. MARTIN, Judge.

Patricia S. Beets and the Patricia S. Beets Revocable Living Trust (collectively “Beets”) appeal the trial court's entry of a judgment awarding title by adverse possession to a triangular sliver of land between two residential lots to Paul Rohner (“Rohner”). Beets argues that Rohner's possession of the disputed sliver of land was not hostile for the requisite ten year limitations period because she gave Rohner permission to cross her property.

We affirm.

Factual and Procedural Background ¹

On May 15, 2001, Rohner purchased Lot 29 in Block T at Lake Lotawana,Missouri. An existing tree line ran north-south, and formed a natural division between Lot 29 and Lot 30 to the west. Rohner believed the tree line to be the western boundary for his lot. Rohner used his lot consistent with this belief. Rohner maintained the area up to the tree line. Rohner made improvements to his lot near the tree line. These improvements included the construction of a pavestone retaining wall along the north boundary of Lot 29 in 2001.² The west end of the retaining wall ended at the tree line. The improvements also included the placement of limestone rocks along the tree line, the planting of numerous bushes and a tree near the tree line, and the placement of mulch up to the tree line. The appearance of Lot 29 up to the tree line was “finished and manicured,” where Lot 30 to the west of the tree line was a “more natural, less manicured area.”

On December 22, 2008, Beets purchased Lot 30. Beets already owned Lot 31 to the west of Lot 30. In 2009, a contractor told Beets that in his opinion, the eastern property line for Lot 30 extended east of the tree line to the metal frame of a wood stack. The trial court did not find that Rohner was advised of this conversation, whether Beets agreed with the contractor, or that Beets took any immediate action in response to this conversation.

In 2009, Beets cleared Lot 30 and removed a small cabin from the lot. She also filled in a gulley on the lot. Beets did not make any improvements to the area east of the tree line.

In June 2010, Rohner wanted to rebuild his pavestone retaining wall. For ease of access, Rohner wanted to bring construction materials and equipment to the retaining wall by crossing over Lot 30. Rohner asked Beets if he could cross Lot 30 for this purpose. Beets gave him this permission in exchange for an agreement to “black out” a few exterior lights that bothered Beets.³ Rohner's rebuilt the retaining wall. The west end of the retaining wall continued to run to the tree line.

In August 2011, Beets surveyed Lot 30 and learned that her eastern property line was east of the tree line. The location of the actual eastern property line for Lot 30 in relation to the tree line created a triangular sliver of property (the “Disputed Tract”) containing 292.07 square feet.⁴

In October 2011, Beets cut down the bushes and the tree Rohner had planted in the Disputed Tract. Beets also moved the part of the pavestone retaining wall located in the Disputed Tract and the limestone rock Rohner had placed in the Disputed Tract. Beets placed large flower pots in the Disputed Tract.

Rohner filed suit against Beets seeking to quiet title to the Disputed Tract by adverse possession. Rohner also sought damages for trespass. Beets filed a counterclaim for trespass.

Following a bench trial, the trial court entered judgment in favor of Rohner on his claim to quiet title to the Disputed Tract by adverse possession. The trial court also awarded Rohner damages in the amount of $6,630.00 on his claim of trespass. The trial court entered judgment in favor of Rohner and against Beets on Beets's counterclaim for trespass.

Beets appeals.

Standard of Review

In this court tried case, “we follow the dictates of Rule 73.01.” Weaver v. Helm, 941 S.W.2d 801, 804 (Mo.App. S.D.1997). “Thus, we review both the law and the evidence giving due recognition to the superior position of the trial court to judge the credibility of the witnesses.” Id. “The judgment must be sustained unless it is without substantial evidentiary support, unless it is against the weight of the evidence or unless it erroneously declares or applies the law.” Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Analysis

In her single point on appeal, Beets argues that the trial court erred in entering judgment in favor of Rohner on Rohner's adverse possession claim because the permission she gave Rohner to cross Lot 30 in June 2010 destroyed Rohner's hostile possession of the Disputed Tract before the ten year limitations period ran. We disagree.

“To acquire title by adverse possession ..., possession must be: (1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the necessary period of [ten] years.” Watson v. Mense, 298 S.W.3d 521, 526 (Mo.2009). “The party claiming ownership by adverse possession has the burden of proving the claim by a preponderance of the evidence.” Id. “The failure to establish any one of the elements will necessarily defeat” a claim of adverse possession. Brokhausen v. Waubansee, 65 S.W.3d 598, 600 (Mo.App. S.D.2002).

Here, Beets concedes that Rohner's use of the Disputed Tract was actual, open and notorious, and exclusive for the requisite ten year limitations period. Beets also concedes that Rohner's use of the Disputed Tract was hostile from May 2001 until June 2010. Beets argues only that when she gave Rohner permission in June 2010 to cross over Lot 30 to rebuild the retaining wall, she “unequivocally interrupted [Rohner's] hostile possession of the [Disputed Tract] ... thereby defeat[ing] [Rohner's] claim of adverse possession” before the requisite ten year limitations period had run. [Appellant's Brief, p. 9]. Because Beets's claim on appeal is limited to whether her grant of permission destroyed Rohner's hostile possession of the Disputed Tract that is the only element of adverse possession we need address. Cooper v. Carns, 263 S.W.3d 729, 733 (Mo.App. W.D.2008).

As we noted in Cooper:

Possession is hostile if it is antagonistic to the claims of all others. The claimant must occupy the land with the intent to possess it as her own. The claimant's occupancy must be in defiance of, rather than in subordination to, the rights of others. Intent may be inferred from her acts of dominion over the land. The claimant need not intend to take away something that belongs to another or be indifferent as to the facts of the legal title. It is the intent to possess rather than the intent to take from the true owner that governs. Even if the claimant mistakenly believes she had title and occupied the land as her own, the hostile element is satisfied.

263 S.W.3d at 733 (internal citations omitted).

As Beets concedes, Rohner's possession of the Disputed Tract between May 2001 and June 2010 was hostile. Rohner believed the Disputed Tract to be within the legal boundaries of Lot 29. His belief was manifested by improvements to, and maintenance of, the Disputed Tract. Those improvements were open, notorious, and obvious to Beets since at least 2008 when she acquired Lot 30, if not sooner.⁵ Rohner's occupancy of the Disputed Tract was in every respect consistent with using the tree line as the western property line for Lot 29 to the exclusion of all others.

Rohner's use of the Disputed Tract and his belief that he owned the Disputed Tract did not change between June 2010 and October 2011. Beets nonetheless claims that Rohner's use of the Disputed Tract during this time period was not hostile. Beets argues that the hostility of Rohner's use was destroyed in June 2010 when Rohner sought and received her permission to cross the undisputed portion of Lot 30 to rebuild the retaining wall within the Disputed Tract.

It is true that a “[p]ermissive use will not support a claim of adverse possession because hostility is lacking.” Brokhausen, 65 S.W.3d at 600. This legal principle is neither mysterious nor complex in its application. If an occupier secures permission to possess land, the occupier is not possessing “in defiance of, [but] rather ... in subordination to,” the rights of the owner, the antithesis of hostile possession. Cooper, 263 S.W.3d at 733.

The challenge where permissive use is asserted is in determining whether permission was secured to use the land in dispute. This is a factual determination, as “ ‘[t]he matter of whether a use [of disputed land] was with permission is a matter involving the credibility of witnesses which should be resolved by the trier of fact.’ ” Leonard v. Robinson, 276 S.W.3d 868, 874 (Mo.App. E.D.2009) (quoting Harmon v. Hamilton, 903 S.W.2d 610, 613 (Mo.App. S.D.1995)).

Here, it is uncontested that Rohner sought and secured Beets's permission to “cross Lot 30” for the purpose of conveniently accessing and rebuilding the existing retaining wall. Thus, the issue before the trial court was whether this constituted permission to use and possess the Disputed Tract.

The trial court made the following factual findings relevant to this issue:

11. [Rohner's] pave-stone wall [was] installed on Lot T 29 in June 2001. The western edge of this pave-stone wall ended at the Tree Line and in the Disputed [Tract].

...

15. In 2010 [Rohner's] retaining wall was rebuilt.

16. In order to access the wall to rebuild it and make other improvements, [Beets] granted [Rohner] use of Lot 30 to access Lot T 29 in exchange for blacking out lights that bothered [Beets].The trial court drew the following...