Sandy Ford Ranch, Inc. v. Dill

• Decision Date: 12 January 1970
• Docket Number: No. 53841,No. 1,53841,1
• Citation: 449 S.W.2d 1
• Parties: SANDY FORD RANCH, INC., Appellant, v. Lester DILL and John Strothcamp, et al., Respondents
• Court: Missouri Supreme Court

Page 1

449 S.W.2d 1

SANDY FORD RANCH, INC., Appellant, v. Lester DILL and John Strothcamp, et al., Respondents.

No. 53841.

Supreme Court of Missouri, Division No. 1.

Jan. 12, 1970.

Leo A. Politte and Emil L. Poertner, Washington, for appellant.

Lawrence O. Davis, Union, G. C. Beckham, Steelville, for respondents.

SAMUEL E. SEMPLE, Special Judge.

This is an action to quiet title to a parcel of real estate based on adverse possession by plaintiff for over ten years before filing the action. Defendants deny adverse possession and claim any use of the property by plaintiff was permissive. A jury trial of the issues resulted in a verdict for defendants. Plaintiff appeals from the judgment rendered on the verdict.

Plaintiff, appellant herein, a closely held corporation owned by Francis H. Kennedy and his immediate family and managed by him, filed this action on September 3, 1966. The defendants, respondents herein, Lester Dill and John A. Strothcamp, after the institution of this action purchased the tract of land in question from defendants Louise Hammann, Herbert Hammann and Ralph C. Hammann on August 5, 1967, and were duly made parties defendant in this action on October 6, 1967.

The tract of land in question is triangular shaped, being bounded on the west by the city limits of Stanton, Missouri, on the south by plaintiff Sandy Ford Ranch, on the north and east by Highway 'W' and containing 12.02 acres. The Sandy Ford Ranch was purchased by Francis Kennedy in 1946. In July, 1947, the land just north of the Sandy Ford Ranch, which included the land here in question, was purchased by John C. and C. J. Hammann. In October, 1953, a strip of the Hammann land was conveyed by the Hammanns to the Missouri State Highway Commission for the right of way for Highway 'W'. This right of way divided the Hammann land and left a triangular shaped tract of 12.02 acres on the south side of Highway 'W' which is the land in dispute here. In April, 1957, the tract was conveyed to C. J. Hammann, Fred Hammann and Louise Hammann, his wife, as joint tenants and record title continued in their names until August 29, 1966, when title was changed to Louise Hammann and her two sons, Herbert J. Hammann and Ralph C. Hammann.

A summary of the evidence presented at the trial reveals: Francis Kennedy as principal owner of Sandy Ford Ranch, Inc., maintained the fence along the south side of Highway 'W' from 1954 or 1955 up to the time the suit was tried. The ranch pastured horses and cattle on the land in dispute and also erected no trespass signs on the property. The property was leased to other persons for grazing. No permission was ever given to Kennedy or the Sandy Ford Ranch, Inc., to use the property. Neither Kennedy nor Sandy Ford Ranch, Inc., had ever paid any taxes on this piece of land. There was evidence presented by plaintiff by persons who lived on the Sandy Ford Ranch that the fence along Highway 'W' was maintained by Sandy Ford Ranch; that cattle were grazed on the property up tot he fence on Highway 'W' from about 1955 and 1956 up to the time this lawsuit was filed in 1966. One of plaintiff's witnesses testified that he rented pasture from plaintiff from 1959 to 1960 and in 1959 there was a fence along the south side of the Hammann land of old wire that had gaps in it; that there were some signs on this old fence marked 'Hammann.' This witness also testified that he had a conversation with Francis Kennedy about building some subdivisions on the land and Kennedy said that he was buying the land to get an outlet to the road. The witness made a temporary survey of a street and drove some temporary stakes. However, at a later date, Kennedy told him he was dropping the project for the time being. This witness also testified that, on one occasion in 1959, Kennedy came out to the ranch and saw some cows on the Hammann tract and told witness he was permitting his cattle to run on someone else's property and told witness that if they did any damage that witness would be responsible.

There was evidence presented on behalf of defendants that the Hammann tract was completely enclosed by fences in 1948 and that there was a fence on the south side of the Hammann tract. There was testimony by defendant Strothcamp, who had lived in the neighborhood almost continuously since 1948, that there was a fence across the south side of the Hammann tract in 1948 and a big part of this fence was still there on the date of the trial; that around 1958 or 1959 there was a fire on the Hammann tract and Kennedy asked him to help fight the fire and he told Kennedy that he had been run off the land by Kennedy's man with a gun. Kennedy said that, if he would help fight the fire, he could hunt on Hammanns' ground and the Sandy Ford Ranch, that he had permission to use the Hammann land. Defendant Dill testified that he lived nearby to the land in dispute and that he drove past the land almost daily for the past thirty-five years; that, when Highway 'W' was built in 1954 or 1955, he put in the fence along the road on the Hammann tract and tied in this new fence to the old fence located on the south line of the Hammann tract. About this same time in 1954 or 1955 Kennedy told him that he had made arrangements to pasture the Hammann tract. Louise Hammann testified that she was the widow of Fred Hammann and the sister-in-law of John C. Hammann and C. J. Hammann. C. J. Hammann was a disabled veteran and made his home in the Wadsworth Hospital in Wadsworth, Kansas for a number of years prior to his death in 1966. She was acquainted with Francis Kennedy and around 1952 or 1953 he came to her home in St. Louis and inquired if this tract of land near Stanton was for sale. She told him that, at that time, the record title was in her brother-in-law, C. J. Hammann, and he would have to contact him. She gave Kennedy C. J. Hammann's address and said that Kennedy went to Wadsworth, Kansas and talked to C. J. Hammann. Mrs. Hammann further testified that she had paid the taxes on the land beginning in 1947 up to the time the land was sold to defendants Dill and Strothcamp in August, 1967.

Defendants presented a witness, Frank Blume, who testified that he rented pasture from Kennedy and the Sandy Ford Ranch, Inc., in the spring and summer of 1958 and as part of the deal he was to maintain the fences. He stated that, in the spring of 1958, the Hammann tract was entirely enclosed by fences. Kennedy told him that he had permission to use the Hammann ground and also told him to cut some gaps in the fence along the south side of the Hammann tract. He did cut some gaps in the fence on the south side of the Hammann tract so that cattle could go back and forth from the Sandy Ford Ranch, Inc., into the Hammann tract.

Plaintiff assigns as error that the court erred in overruling plaintiff's motion for a directed verdict at the close of the evidence. Plaintiff argues that defendants admitted in their answer that, prior to April, 1957, plaintiff did in fact fence the land and grazed cattle on it, and that defendants having admitted actual and open possession, the burden of proof then shifted to the defendants to prove that such possession was not hostile but was permissive and that defendants failed to carry the weight of the evidence as to permissive use.

It is well settled that a party claiming land by adverse possession has the burden of proof of establishing all of the essential elements of adverse possession, which requires a showing that the claimant held actual, notorious and continuous possession of the land under an unequivocal claim of ownership for the statutory period; however, once the claimant has made its prima facie case, the burden of going ahead on that issue shifts to the other party. City of Kirksville v. Young, Mo., 252 S.W.2d 286, 289; Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544, 546.

The law with respect to directing a verdict for the party having the burden of proof has been stated as follows: "It is a generally accepted rule in this state that a verdict may not be directed in favor of the proponent, that is the party upon whom the law casts the final burden of proof. * * * There is, however, a well-recognized exception to the rule. If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is unimpeached and uncontradicted, the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the questions of law involved the jury has no right to pass.' Charles F. Curry & Company v. Hedrick, Mo., 378 S.W.2d 522, 531.

Defendants' answer does not specifically admit that, prior to 1957, plaintiff fenced the land in dispute and grazed cattle on it as plaintiff contends. The answer merely states that Francis Kennedy acting for plaintiff attempted to purchase the land prior to April 19, 1957. C. J. Hammann (then owner of the land) refused to sell, but gave permission to gratuitously graze livestock thereon and erect a fence to contain the livestock. Plaintiff presented evidence showing that the land in dispute had been occupied and used by plaintiff for grazing purposes for over ten years and Francis Kennedy testified that such possession was open and hostile to all others for over the full ten-year period. There was evidence that plaintiff was not asserting possession, as hostile or under an unequivocal claim of ownership. On several occasions during the ten years prior to filing...