Slentz v. Cherokee Enterprises, Inc., 9687

• Decision Date: 27 October 1975
• Docket Number: No. 9687,9687
• Citation: 529 S.W.2d 495
• Parties: Wilbur SLENTZ et al., Plaintiffs-Appellants, v. CHEROKEE ENTERPRISES, INC. and Gerald D. Simkins, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 495

529 S.W.2d 495

Wilbur SLENTZ et al., Plaintiffs-Appellants, v. CHEROKEE ENTERPRISES, INC. and Gerald D. Simkins Defendants-Respondents.

No. 9687.

Missouri Court of Appeals, Springfield District.

Oct. 27, 1975.

Bob J. Keeter, Schroff, Keeter & Glass, Inc., Springfield, for plaintiffs-appellants.

Leland C. Bussell, David W. Bernhardt, Bussell, Hough, Greene & Bernhardt, Springfield, for defendants-respondents.

Before STONE, P.J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

This is an action to quiet title.

Plaintiffs-appellants are five married couples, each owning a lot in Cinderella Village, 'a subdivision in Greene County, Missouri.' Defendant-respondent Cherokee Enterprises, Inc. ¹ is the owner of land adjoining, and located west of, plaintiffs' lots.

Lot 16, owned by plaintiffs Correll, is the northernmost lot. Lot 18, owned by plaintiffs Larkins, is adjacent to and south of the Correll lot. The Nagy lot, Lot 20, is south of the Larkins lot, the Slentz lot, Lot 22, is south of the Nagy lot, and the Morriset lot, Lot 24, is south of the Slentz lot.

The north-south dimension of the area in dispute is 455 feet. Its width at the north end, west of the Correll lot, is 14.8 feet and its width at the south end, west of the southern border of the Morriset lot, is 10 feet.

The claim of plaintiffs to the disputed area is based on adverse possession; the claim of defendant Cherokee to that area is based on record title. The west side of the disputed area is marked by 'an old fence' and the east side of it is the true boundary line as shown by a survey based on record titles.

In the petition each set of plaintiffs requested a decree adjudging them to be the owners of that portion of the disputed area lying west of their respective lots. The counterclaim of defendant Cherokee requested a decree 'quieting title in the defendants to the disputed property.' Both the petition and the counterclaim contained additional claims but they are no longer in dispute.

The trial court, after making findings of fact and conclusions of law, found in favor of defendant Cherokee and declared that Cherokee was the owner of the disputed strip. Plaintiffs appeal.

This court must review this non-jury case upon both the law and the evidence as in suits of an equitable nature and must give due regard to the opportunity of the trial court to have judged the credibility of witnesses. Rule 70.01, par. 3, V.A.M.R.

Since plaintiffs base their claim on adverse possession, the burden of proof as to each of the five elements ² of adverse possession is on plaintiffs. Wilton Boat Club v. Hazell, 502 S.W.2d 273, 276(5) (Mo.1973). However, once the plaintiffs made a prima facie case on the issue of adverse possession, the burden of going ahead on that issue shifted to the defendants. Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 4(1) (Mo.1970) and authorities there cited.

Although the reviewing court will defer to the findings of the trial court where credibility of witnesses is involved, the reviewing court need not do so where 'a disputed question is not a matter of direct contradiction by different witnesses.' West v. Witschner, 428 S.W.2d 538, 542(7) (Mo.1968). See also Schott v. Bruce, 407 S.W.2d 61, 65(6) (Mo.App.1966).

Because certain facts pertain only to the appeals of plaintiffs Correll and Morriset, they will be discussed later.

The appeals of Larkins, Nagy, and Slentz are treated first.

The action was commenced on August 22, 1973. Slentz obtained title to and possession of Lot 22 in June, 1963. Earlier the Nagys and Larkins had acquired their lots. These plaintiffs presented evidence, which need not be detailed, sufficient to make a prima facie case on the issue of adverse possession. In general their testimony was that throughout their respective ownerships they had possessed that portion of the disputed strip adjacent to their lots, claiming that the old fence was the boundary line, and exercising open and notorious dominion over the area by planting trees and shrubbery, gradening, and mowing it. The 'old fence' had been there at least since 1958. Photographs were introduced in support of plaintiffs' testimony.

There was also testimony that one Meeks, defendants' predecessor in title, had recognized the old fence as being the boundary line.

The evidence of these plaintiffs shifted to the defendants the burden of going forward on the issue of adverse possession. The evidence adduced by the defendant falls short of sustaining that burden.

Defendants' witnesses were Bill MacLachlin, Allen Cates, and Gerald Simkins. Their testimony disclosed the following: Simkins and MacLachlin obtained record title to the disputed area on September 22, 1972, and conveyed it, with other land, to Cherokee in November, 1972. Sometime after March, 1973, plaintiff Larkins told MacLachlin that he, Larkins, knew where the true boundary line was. MacLachlin knew that the plaintiffs were using the disputed ares 'but I fugured that they had been given permission to use it . . . I just took it for granted.'

Cates made a survey for Simkins in September, 1972, and the survey showed the location of the true boundary line which was east of the old fence. On the ground Cates found some pins which indicated the location of the true boundary line. Cates noticed 'some pretty good sized trees' were in the disputed area and they had been there several years. He noticed also that east of the old fence the yards were maintained in a moved and clipped condition, while on the west side of the old fence it was pasture land. Cates said 'In two of the places I can remember,' without specifying which two, 'the people living in the houses east of the fence were using as their yards the land right up to the fence.'

Cates also testified that while Simkins, for Cherokee, was having the area surveyed and platted, Simkins 'had some question about whether the fence was where he owned or whether the property line was where he owned,' the 'property line' meaning the true line as disclosed by Cates' survey.

Simkins testified that Cherokee platted an area in February, 1973, as 'Cherokee Estates Second Addition' and this area included the strip in dispute. After the area had been platted, and Simkins and his associates started to install utilities, Simkins first became aware that plaintiffs were making an adverse claim. However, he had not had any conversation with any of the plaintiffs prior to March, 1973. When Simkins talked with the plaintiffs 'they seemed to know where the true line was.' Simkins admitted seeing the old fence and seeing 'the way the lands were being used up to the old fence.' Simkins did not ask the plaintiffs whether the plaintiffs were claiming ownership up to the fence, although the plaintiffs indicated they knew the location of the true boundary line. Simkins also testified that '(i)t is probably true that later on when the plaintiffs found out I was contending their ownership did not go to the fence that they had used for years, they told me they did not agree with me.'

The trial court found that 'plaintiffs' use of the disputed land which they are claiming has been with the permission of the defendant and its predecessors in title and plaintiffs knew that prior to the platting and use of the said property by defendants the plaintiffs had no legal title to the disputed land.' The portion of this finding dealing with permission is not supported by the evidence. No plaintiff testified that his use was permissive. MacLachlin, who may not have seen the disputed area prior to September, 1972, and who had no conversation with any plaintiff prior to March, 1973, testified that he 'figured that they had been given permission to use it. I just took it for granted. I did not make any investigation.' Such testimony does not support a finding of permissive use.

Neither Cates nor Simkins offered any testimony supporting a finding of permissive use.

Although most of the plaintiffs testified that they believed the old fence to be the true boundary line, there was testimony that some of them knew the location of the true boundary line. However, such latter knowledge, assuming it existed, is not an impediment to a valid claim of adverse possession.

'In determining the character of the possession, the important factor is, not whether the true line is known or whether there is a mistake as to the boundary, since the location of a fence beyond the true boundary line is usually due to mistake, but it is the intent with which the boundary fence is built and the unequivocal character of the claim made thereafter, which is decisive of the question. . . . In short, the determining factor is not what the encroaching owner knew about the true boundary line, but what he intended to unequivocally claim was his boundary line.' Bell v. Barrett, 76 S.W.2d 394, 396(3) (Mo.1934). See also Pollock v. Bouse, 430 S.W.2d 149, 151 (Mo.1968).

The important thing is that the evidence of plaintiffs showed that each of their respective possessions of the disputed area was coupled with 'the intent to possess.' ³

Defendant Cherokee relies upon the following findings of fact made by the trial court:

1. 'Defendants and their predecessors in title are the true record owners of the real estate in question.'

2. 'Defendant Cherokee Enterprises, Inc. and its predecessor in title have owned the real estate in question since common ownership, have paid taxes thereon, and have claimed said property at all times and in all conveyances since common ownership.'

3. 'Plaintiffs and their predecessors in title have not been in open, notorious, uninterrupted and continuous possession of said property for the required period of ten years.'

Plaintiffs argue, validly, that finding of fact no. 1 is in the nature of a conclusion of law. If the finding is that the record title of plaintiffs did not extend westward to the old fence, that fact was conceded. It is, of course, not...