Spencer v. Supernois

• Court: Kansas Supreme Court
• Writing for the Court: PARKER
• Citation: Spencer v. Supernois, 176 Kan. 135, 268 P.2d 946 (Kan. 1954)
• Decision Date: 10 April 1954
• Docket Number: No. 39320,39320
• Parties: SPENCER v. SUPERNOIS et al.

Page 946

268 P.2d 946

176 Kan. 135

SPENCER v. SUPERNOIS et al.

No. 39320.

Supreme Court of Kansas.

April 10, 1954.

Syllabus by the Court.

1. In ruling on a demurrer to evidence courts do not weigh or compare contradictory testimony but must accept all evidence as true, give it the benefit of all reasonable inferences that may properly be drawn therefrom, and consider such portions thereof as are favorable to the party adducing it.

2. Where parties by mutual agreement fix a boundary line and thereafter acquiesce in the line so agreed upon, it must be considered as the true boundary line between them, even though the period of acquiescence falls short of the time fixed by statute for gaining title by adverse possession. Following In re Moore, 173 Kan. 820, 252 P.2d 875, and other decisions cited in the opinion.

3. This Court's Rule 53, G.S.1949, 60-3827, providing, 'In trials before the court, without a jury, where evidence is admitted over proper objections, and not stricken out on timely motion therefor, it shall be presumed that such evidence was considered by the court and entered into its final decision in the case,' has no application in the absence of a timely motion to strike testimony admitted over objection and under such circumstances there is no presumption the evidence complained of was considered or entered into the final decision of the trial court.

4. The findings and decision of the trial court on a controverted factual issue are conclusive and will not be disturbed on appellate review when supported by evidence even though the record discloses some testimony which might have warranted that tribunal in reaching a contrary decision.

5. The record in an action to quiet title examined, and held, that under the facts, conditions and circumstances set forth at length in the opinion the trial court did not err (1) in overruling separate demurrers to plaintiff's evidence; (2) in rendering judgment quieting plaintiff's title; and (3) in overruling the defendants' motions for a new trial.

J. G. Somers, Newton, and George A. Robb, Newton, on the briefs, for appellant J. M. Supernois.

J. Sidney Nye, Newton, on the briefs for appellant City of Newton.

J. Rodney Stone, Newton, for appellee.

PARKER, Justice.

This was an action to quiet title to real estate. The plaintiff recovered and the defendants have appealed.

Plaintiff commenced the action against defendants, J. M. Supernois and the City of Newton, by filing a petition in which she stated that she was the owner in fee simple of the real estate in question and had been in the actual, peaceable, open, adverse, continuous, and exclusive possession thereof for more than twenty years under claim of title; that the defendants and each of them claimed some adverse, but nevertheless inferior, right, title, and interest in and to such real estate; and that she should have judgment quieting her title to such property and barring and excluding defendants from all claims of interest therein.

Defendant Supernois answered the petition by denying each and all of its allegations. The City of Newton answered in like manner but in addition alleged it claimed the real estate by dedication from its co-defendant for public street purposes and that by reason thereof its rights therein should be confirmed for the purposes for which the property had been so platted and dedicated and all relief claimed by plaintiff should be denied.

The case came on for trial with issues joined as heretofore related. After plaintiff had adduced her evidence and rested her cause each of the defendants demurred on the ground such evidence failed to establish a cause of action for the relief claimed. When these demurrers were overruled they elected to stand thereon. Following these announcements plaintiff moved for judgment in conformity with the prayer of her petition. Thereupon, the trial court sustained the motion, found the allegations of the petition to be true, and rendered judgment accordingly. After the rendition of this decree the defendants filed separate motions for a new trial. When such motions were overruled they joined in perfecting the instant appeal and now, under proper specifications of error, challenge the propriety of the trial court's action in overruling their respective demurrers and motions for new trial.

A review of the evidence on which this lawsuit must be decided, particularly that relating to the events giving rise to the controversy, is necessary to insure a proper understanding of a decision of the issues involved on appellate review. This, of course, must be made in the light of the well established rule. See West's Kansas Digest, Appeal & Error, k927, Trial, k156, ; Hatcher's Kansas Digest [Rev.Ed.], Appeal & Error, § 488, Trial, §§ 149, 150, 151, that in ruling on a demurrer to evidence courts do not weigh or compare contradictory testimony but must accept all evidence as true, give it the benefit of all reasonable inferences that may properly be drawn therefrom, and consider only such portions thereof as are favorable to the party adducing it. So reviewed the record discloses the following facts:

In 1929 Daisy D. Spencer was the owner of and, together with her husband, contracted to sell a certain tract of real estate located in the City of Newton to M. C. Wear. Later, on March 28, 1929, she conveyed this tract, approximately 658.90 feet, east and west, by 329.9 feet, north and south, by warranty deed, her husband joining, to Wear in conformity with the terms of such contract.

Shortly after receiving the deed Wear had the property surveyed and erected a substantial woven wire fence, running north and south, some 30 feet east of what, according to the description thereof as set forth in both the contract and the deed, would be the west line of the property conveyed. This fence is still standing and since its erection all members of the Spencer family, including Daisy D. Spencer, have considered it to be the boundary line between the Spencer and Wear properties and represented it to others as such. In fact they exercised full and complete control over the 30-foot strip of land west of such fence throughout the years, planting it to crops and harvesting them, and during such time neither Wear nor Supernois, his successor in title, at least until the filing of the dedicatory plat to be presently mentioned, ever made any claim of title to such tract or challenged the Spencers right to possession and control thereof.

The record without disclosing exactly when, or how, makes it appear that sometime between March 1929 and the filing of this action Wear, or representatives of his estate, disposed of the property purchased from Mrs. Spencer by selling it to Supernois, who took possession thereof without disturbing the fence standing thereon, and thereafter made no claim to the Spencers of any right, title or interest in and to the 30-foot tract west of the fence. It also discloses, although failing to give the exact date of his action, that Supernois subsequently filed a plat of the land conveyed to Wear by Mrs. Spencer, as South Breeze Addition to the City of Newton, wherein he dedicated a 60-foot road or street which, according to the legal description of the land described in such plat, included the 30-foot strip or tract of land west of the fence and now in controversy.

In addition it should be noted that in response to a question put to her on cross-examination Mrs. Spencer stated, without objection of any character to her answer, that she knew the fence in question was the line her husband and Wear had...