Shanks v. Honse
| Decision Date | 26 April 2012 |
| Docket Number | No. SD 31460.,SD 31460. |
| Citation | 364 S.W.3d 809 |
| Parties | Leonard SHANKS and Naomi Shanks, Plaintiffs–Appellants, v. Roger HONSE, Defendant–Respondent. |
| Court | Missouri Court of Appeals |
Leonard SHANKS and Naomi Shanks, Plaintiffs–Appellants,
v.
Roger HONSE, Defendant–Respondent.
No. SD 31460.
Missouri Court of Appeals,
Southern District,
Division One.
April 26, 2012.
[364 S.W.3d 810]
Deborah K. Dodge, Springfield, MO, for Appellants.
Jonathan C. Browning, Jefferson City, MO, for Respondent.
DON E. BURRELL, Presiding Judge.
Leonard and Naomi Shanks, husband and wife, filed a petition claiming that they had acquired ownership by adverse possession of a portion of land (“the disputed property”) whose owner of record was their neighbor, Roger Honse. The petition asked the court to quiet title in the Shanks' name, eject Mr. Honse from the disputed property, and award the Shanks money damages for Mr. Honse's trespass. Mr. Honse counterclaimed, asking the court to confirm his ownership of the disputed property, eject the Shanks from it, and award him money damages for the Shanks' trespass.
After a bench trial, the trial court issued a judgment quieting title to the disputed property in Mr. Honse and awarding him $2,049.70 in monetary damages. 1 Mrs. Shanks 2 now appeals, claiming the trial court erred in denying her adverse possession claim because she offered substantial evidence in support of the three elements the trial court found had not been proven—that the Shanks' possession was: 1) actual; 2) hostile; and 3) open and notorious.3 Because Mrs. Shanks had the burden of proof on her adverse possession claim, and the trial court was not required to believe her evidence, we affirm.
We must affirm the trial court's judgment unless no substantial evidence supports
[364 S.W.3d 811]
it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “This standard applies in adverse possession cases.” Reynolds v. Brill, 302 S.W.3d 716, 718 (Mo.App. S.D.2010). “Substantial evidence is that evidence which, if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case.” Kenney v. Wal–Mart Stores, Inc., 100 S.W.3d 809, 814 (Mo. banc 2003) (quoting Zeigenbein v. Thornsberry, 401 S.W.2d 389, 393 (Mo. banc 1966) (internal quotations and citation omitted)).
In applying this standard we defer to the trial court's credibility determinations and view the evidence and permissible inferences in the light most favorable to the judgment, disregarding all contrary evidence and inferences. Williams v. Frymire, 186 S.W.3d 912, 916 (Mo.App. S.D.2006). The trial court is in a better position to judge the credibility of the parties and, as such, is free to believe none, part, or all of any witness's testimony. Id.
Bowles v. McKeon, 217 S.W.3d 400, 404 (Mo.App. S.D.2007).4
“The party claiming ownership by adverse possession has the burden of proving his claim by a preponderance of the evidence.” Watson v. Mense, 298 S.W.3d 521, 526 (Mo. banc 2009). “There is a presumption that the record owner of wild and vacant land is the actual owner.” Eime v. Bradford, 185 S.W.3d 233, 236 (Mo.App. E.D.2006).
There is no obligation upon an owner to reassert his ownership by an actual taking
[364 S.W.3d 812]
of possession nor may an owner be divested of his title in default of physical occupancy. The adverse claimant prevails, not because the title owner has failed to exercise dominion but because the claimant has proved his actual and continuous possession and that of those under whom he claims.
J.C. Nichols Co. v. Powell, 641 S.W.2d 780, 783–84 (Mo.App. W.D.1982). The elements of adverse possession require that the possession be “(1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous, for ten years prior to commencement of the action to perfect title by adverse possession.” Walker v. Walker, 509 S.W.2d 102, 106 (Mo. banc 1974). The adverse possessor must prove “each and every element necessary to establish adverse possession for the entire statutory period.” Murphy v. Holman, 289 S.W.3d 234, 237 (Mo.App. W.D.2009). A failure to prove any necessary element defeats the claim. Id. at 240.
We present here the evidence adduced at trial as viewed in the light most favorable to the judgment. See White, 321 S.W.3d at 305;Bowles, 217 S.W.3d at 404. The disputed property is located in the northwest corner of land Mr. Honse acquired in 2007.5 The disputed property is triangular in shape and consists of approximately 2.23 acres.6 A creek or “branch” runs diagonally at the edge of one of the boundaries of the disputed property, and a fence runs along the branch. The disputed property is bordered on its north and west sides by approximately 453 acres of land owned by Mrs. Shanks.
By 1963, the Shanks had acquired the parcels comprising their land, which they used to raise cattle. They filed the instant suit in August 2008. The Shanks had used a gate in a fence on the northern edge of the disputed property to let their cattle onto the disputed property to “pass-through” to another portion of the Shanks' land. After initially stating that his cattle were on the disputed property “continually, winter and summer” and “every day in the winter[,]” Mr. Shanks subsequently admitted that he did not control where the cattle went and that they sometimes “scatter[ed] around over the pasture[.]” At her deposition, Mrs. Shanks agreed that the Shanks rotated their cattle from pasture to pasture and did not always have their cattle on the disputed property.
Mr. Shanks did not recall having any conversations with either Mr. Honse or Mr. Honse's brothers to the effect that the fence along the branch marked a property boundary line. The Shanks did not erect or place any structures on the disputed property. Mr. Shanks had never posted any “no trespassing” or “no hunting” signs
[364 S.W.3d 813]
on the fences around the disputed property, and he had never used “purple paint on [the] trees to let people know not to trespass.”
Gary and his wife purchased in 1983 the land they subsequently sold to Mr. Honse in May 2007.7 Shortly after Gary purchased the land, he read his deed and saw that the disputed property was included in the 170 acres he had purchased. Gary used much of his property for a cattle operation, but he used the disputed property for hunting. When he and his wife sold the land to his brother, Gary intended that the disputed property be included in the sale. However, the attorney he used “wrote the new deed and he worded the deed differently to where it left that corner off of [the] deed.” After Mr. Honse and Gary had the property surveyed (the survey later depicted in Mrs. Shanks' Exhibit 7), Gary and his wife conveyed the disputed property to Mr. Honse by quit-claim deed. No one ever claimed to Gary that the Shanks were the owners of the disputed property.
Gary did not consider the fence that ran along the branch to mark the boundary of his property. And “three or four years” after he bought the land, he mentioned to the Shanks' son that the fence did not mark the boundary line. Gary testified, “We all took care of the fence [that ran along the branch], me and [my brother] Wesley and I'm sure [Mr. Shanks] took care of it.” Gary routinely saw the Shanks' cattle on the disputed property, primarily during the summer months and “off and on” during the winter, but he testified that “there ain't [sic] cattle there 100 percent of the time, no.”
Wesley testified by deposition that he had been familiar with the disputed property since he was a young boy. Although he saw the Shanks' cattle on the disputed property, Wesley never saw the Shanks do anything else with the disputed property. No one ever told Wesley that the Shanks owned the disputed property.
Mr. Honse made repairs to the branch fence in 2006, 2007, and 2008. He had also previously helped Gary repair the fence. Mr. Honse recalled that, as a teenager, he and his brothers helped when Mr. Shanks replaced the posts in the branch fence. Mr. Honse also knew that the “fence line” along the branch was not “right.” After Mr. Honse purchased Gary's property, he maintained the fence that ran east to west on the north side of the disputed property, as well as the branch fence. Each year when he turned his cattle out, Mr. Honse checked all of the fences across his entire property for tree damage and for areas that needed patching. Mr. Honse sometimes worked on the fences around the disputed property at the same time Mr. Shanks was also working on them. Mr. Honse knew that there were other fences beyond those on the disputed property that were simply used to keep cattle separated and that they ran along ridgelines and were put in other areas where it was convenient to install a fence.
Mr. Honse used the majority of the land he purchased from Gary to “run cattle, cut seed, [and] bale hay.” He continued to use the disputed property for hunting and had “hunted down there every year for as long as [he had] been old enough to hunt.” Mr. Honse estimated that he would “[d]eer hunt[ ] every year. Rabbit hunt or squirrel
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hunt, coon hunt [he would] say average [d] once a month maybe.”
While Mr. Honse saw the Shanks or their son “[r]iding a four-wheeler [on the disputed property] to check cows[,]” he primarily saw the Shanks' cattle “[u]p on the top of [a] hill” that was not on the disputed property. Mr. Honse did sometimes see the Shanks' cattle pass through the disputed property or “just go down to graze.” Mr. Honse did not give the Shanks permission to use the...
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