Shoemaker v. Houchen, WD

• Decision Date: 11 May 1999
• Docket Number: No. WD,WD
• Citation: 994 S.W.2d 40
• Parties: Marlene SHOEMAKER and Sandra E.F. Cover, Respondents, v. Penny HOUCHEN and David Owen, Appellants. 55409.
• Court: Missouri Court of Appeals

Page 40

994 S.W.2d 40

Marlene SHOEMAKER and Sandra E.F. Cover, Respondents, v. Penny HOUCHEN and David Owen, Appellants.

No. WD 55409.

Missouri Court of Appeals Western District.

May 11, 1999.

Robert L. Cox, Clinton, respondents.

Dennis Owens, Kansas City, for appellants.

Before: Presiding Judge HAROLD LOWENSTEIN, Chief Judge BRECKENRIDGE, and Judge PAUL SPINDEN.

LOWENSTEIN, Judge.

The trial judge entered judgment quieting title in plaintiffs Marlene Shoemaker and Sandra Cover, to a strip of land between plaintiffs' and defendants' property, upon which a tree line sits. The judge also awarded damages for trees that had already been removed from this tree line by defendants. Defendants Penny Houchen and David Owen appeal that decision.

I.

The facts favorable to the result are set out, along with a very rough sketch of the area in dispute. (See Diagram). Defendant Houchen owns a tract of land consisting of approximately twenty-one acres. Plaintiffs Shoemaker and Cover own tracts to the south of Houchen's tract. The strip of land in dispute concerns a tree line, which runs along the south edge of Houchen's property and the north edge of the Plaintiffs' property. The issue in this case is the location of the boundary line between the Houchen tract and the land owned by Plaintiffs. The tree line is of varying widths and the parties dispute the location of the boundary line in relation to this tree line. Houchen, through her agent, defendant David Owen, cut trees from the tree line, which Houchen claims was part of her property. As a result of the removal of the trees, Plaintiffs brought this action. Plaintiffs contend that their north property line runs along the northern-most line of the tree line, which is evidenced by a barbed wire fence. Houchen contends that her land extends into the tree line, and that she therefore has the right to take out the trees, including the trees already taken out.

This property dispute is unusual in that the Defendants were ordered to pay Plaintiffs over $10,000 in damages. The court ordered Defendants to pay $3,000 for ten trees removed from what the court determined to be Cover's property, then trebled these damages pursuant to Section 537.340, RSMo 1994. In addition, the court ordered Houchen to pay $1,000 in damages to each of the Plaintiffs for unlawful withholding of possession of the property.

According to trial testimony, the Houchen property was previously owned by Mitchell Rogers who bought the property from the estate of Mr. York. The tract of land Rogers conveyed to Hubbard, the landowner prior to Houchen, extended south to a barbed wire fence, which ran from a square corner post on the northeast corner of the tree line, and ran along the north edge of the tree line. Rogers testified that when he bought the property, it was described to him as being bounded on the south by the fence and the corner post; he, therefore, never crossed south of the fence, and never considered it to be his property. Prior to conveying the tract of land to Hubbard, Rogers had a new survey done which reflected the fence line as the boundary line. There was also testimony that, due to the new survey, this conveyance left a wedge-shaped tract, retained by Rogers, which lies between the Houchen property and that of the Plaintiffs. This wedge shaped tract, which includes the area in dispute, is about eight feet wide at its widest point on the west side, and narrows at the east end.

Plaintiffs Cover and Shoemaker own the land south of Houchen, with Shoemaker's land west of Cover's. They bought their land from Foster, who owned the entire southern tract the previous 32 years. When Foster first moved to the property in 1964, York was the owner of the property to the north. At that time, the barbed wire fence existed which ran along the north edge of the tree line, from the square post on the west end and at the other end is nailed to one of the hedge trees. Foster testified that at one time York had cattle on his land and put in a fence which connected to the hedgerow at the east end of the barbed wire fence, extending it westward; this fence was later removed. There was further testimony that, even when the fence was removed, owners on both sides continued to mow up to that point. Plaintiffs contend that this evidence shows that as far back as 1964, the owners on each side of the barbed wire fence considered it to be their boundary line, and only used the land on their respective sides. Besides the barbed wire fence on the north of the hedgerow, is a woven wire, or hog-wire, fence on the south side of the hedgerow, which has fallen in some sections, but is still visible in others.

Up until the time the trees were removed by defendants, no party has maintained, or otherwise exercised control of the hedgerow. At one time, York wished to remove the hedgerow and put up a fence. He asked Foster if she would contribute to the cost, but she was unable to. Foster further testified, over a hearsay objection, that York was asking her permission to remove the hedgerow. There was also testimony that after moving onto the property in 1992, Cover built a woodrail fence which separated her property from Shoemaker's, and extended north through the hedgerow, ending on the north side. She also placed a shed close to the trees and put in a horse pen, which extended into the tree line, in a corner of her property.

Plaintiffs pleaded and submitted their case based on adverse possession. The court, however, awarded title to the Plaintiffs based on its finding that the boundary line was established by the legal doctrine of acquiescence. The trial court in this case, based its decision on a finding that "the boundary line was established by acquiescence of the owners of the two tracts at least as early as 1962, and probably many years earlier," and that "it is clear from the testimony that the fence line that did exist at one time still exists to a great extent, ...and for many years was treated by the previous owners of the Houchen property as it's south boundary." The trial court also ordered that a new survey be done to show the boundary line as per court instruction. This line is, at some points, further north than the barbed wire fence, although the Plaintiffs claim only that the fence was their northern boundary.

"The standard of review for court-tried quiet title actions is the same as in other court tried cases...." Evans v. Wittorff, 869 S.W.2d 872, 875 (Mo.App.1994). The judgment must be affirmed if it is supported by substantial evidence, is not against the weight of the evidence and the trial court did not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The Defendants raise several points on appeal. First, they contend that the trial court was in error because there was insufficient evidence of adverse possession, and the trial court's application of the doctrine of acquiescence was in error because it was never pled, and because there was insufficient evidence that acquiescence ever occurred. The remaining points concern the wording of a permanent injunction, and the amount of damages awarded.

II.

Acquiescence and adverse possession are separate, "distinct" legal doctrines. 11 C.J.S., Boundaries, Section 83. To understand the underlying points, it is important to understand the elements of each of these doctrines, and how they can work together. In Tillman v. Hutcherson et al., 348 Mo. 473, 154 S.W.2d 104, 107 (1941), the Court held that a "claim of title by virtue of an agreed line is one thing, and the claim by adverse possession is another." See also Conduff v. Stone, 968 S.W.2d 200, 204 (Mo.App.1998).

In order to acquire title by adverse possession under Section 516.010, RSMo 1994, the claiming party has the burden of proving that it possessed the land, and that the possession was (1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous, for 10 years prior to commencement of her action to perfect title by adverse possession. Cunningham v. Hughes, 889 S.W.2d 864, 866-67 (Mo.App. W.D.1994); see also Lohrmann v. Carter, 657 S.W.2d 372, 377 (Mo.App.1983); Conduff, 968 S.W.2d at 203. The burden of proving each element by a preponderance of the evidence is on the plaintiff, and failure to prove even one element defeats the claim. Brinner v. Huckaba, 957 S.W.2d 491, 494 (Mo.App.1997).

The law "presumes that every possession is rightful, and consistent with not in opposition or 'adverse' to, title and ownership." Miller v. Warner, 433 S.W.2d 259, 262 (Mo.1968). Therefore, a party "who relies upon 'adverse possession,' in order to rebut this presumption of possession consistent with the title of the real owner, must prove his possession to be 'adverse' to the title set up...; that is, he must show the actual knowledge of the real owner that" his possession is in "defiance of [the true owner's] title," meaning his possession is such that he is attempting to take the land as his own. Id. at 262-63. Or, he must show that his occupancy and use, was "so open and notorious and inconsistent with, as well as injurious to, the rights of the true owner, that the law will authorize, from such facts, the presumption of such knowledge by the true owner." Id. To put it another way, when relying on adverse possession, which is a taking title of the property of another through possession, the party is required to show that the real owner had knowledge, actual or presumed, that the party intended to take possession and title, requiring the true owner to assert his rights. Failure to assert his rights for the statutorily prescribed period can result in the loss of title.

"The doctrine of boundary by acquiescence is somewhat murky...," and is seldom relied on. Conduff, 968 S.W.2d at 204. Unlike adverse possession, which establishes title, acquiescence establishes a boundary. An agreement as to a boundary...