Teson v. Vasquez

• Decision Date: 27 December 1977
• Docket Number: 37506,37004,Nos. 37003,37608 and 37609,s. 37003
• Citation: 561 S.W.2d 119
• Parties: Lawrence V. TESON, David Behle, Nancy Behle, Joseph Harry Keeven, Mary Catherine Keeven, Matthew Klaus, Florence Klaus, Charles Sommers and Margaret Sommers, Plaintiffs-Respondents, v. Velma VASQUEZ, Executrix of the Estate of Leo Vasquez and Velma Vasquez, Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 119

561 S.W.2d 119

Lawrence V. TESON, David Behle, Nancy Behle, Joseph Harry Keeven, Mary Catherine Keeven, Matthew Klaus Florence Klaus, Charles Sommers and Margaret Sommers, Plaintiffs-Respondents, v. Velma VASQUEZ, Executrix of the Estate of Leo Vasquez and Velma Vasquez, Defendants-Appellants.

Nos. 37003, 37004, 37506, 37608 and 37609.

Missouri Court of Appeals, St. Louis District, Division Three.

Dec. 27, 1977.

Edward D. Weakley, Lashly, Caruthers, Thies, Rava & Hamel, St. Louis, for defendants-appellants.

Marvin M. Klamen, Klamen, Summers & Compton, Clayton, for plaintiffs-respondents.

GUNN, Presiding Judge.

This is a consolidated cross appeal from judgments of the circuit court, sitting without a jury, quieting title to certain tracts of land located in St. Louis County in claimants, Teson, Sommers, Keeven and Behle, by adverse possession and quieting title to other tracts in defendants Vasquez under their quitclaim deed. Defendants argue on appeal that the elements of adverse possession were not established by the claimants in whom title was quieted. Claimants Klaus and Teson, who were found not to have established title by adverse possession, appeal from the court's finding, arguing that they proved their title under that theory.

We affirm in part and reverse in part.

Claimant, Lawrence Teson, commenced this suit on August 25, 1969, by filing a petition in the circuit court seeking to have title to certain lands near his home quieted in favor of himself and his wife. Defendants, Leo and Velma Vasquez, ¹ then filed a motion to make more definite and certain. No further action was taken until December 8, 1972, when Teson, with leave of court, filed a first amended petition seeking to quiet title to the same tract of land by adverse possession. Claimants, Keeven, Behle, Klaus and Sommers, who claimed title to nearby and adjoining lands by adverse possession, were added as parties plaintiff. ² Defendant's answer, filed March 30, 1973, was a general denial. In their counterclaim, defendants alleged that they were conveyed good title to the entire property in question by a quitclaim deed from Hugo and Alvina Essen on October 2, 1950, and prayed that title be quieted in them on the basis of this recorded deed. ³ Prior to trial defendants' motion to separate was sustained, and each claimant's suit was ordered to be tried separately but seriatim. The Teson and Sommers cases were so tried. Because of the confusion and repetition of evidence encountered in those cases, the Keeven-Behle and Klaus cases were tried together.

The property in controversy consists of approximately 208 acres of rich river bottom land in northeast St. Louis County. It is bounded on the north by the Missouri River and on the south by Aubuchon Road. The eastern and western boundaries are not marked by any distinct landmarks but are merely prolongations of United States survey lines from their endpoint at Aubuchon Road extending to the Missouri River. The four parcels claimed by adverse possession are shaped roughly as rectangles, and each is bounded by Aubuchon Road, the river and the prolongations of the United States survey lines. Title to a 92 acre parcel situated between the Teson and Klaus tracts was quieted in defendants in Baxter v. Vasquez, 501 S.W.2d 201 (Mo.App.1973). ⁴ This suit concerns the title to the remaining 208 acres purportedly conveyed to defendants by the Essens under the 1950 quitclaim deed. The following generally depicts the location of the property involved:

The land in controversy, though it is rich farmland today, was not always so. In the mid 1800's when the area was first surveyed and platted this land was an island in the middle of the Missouri River. The St. Louis County bank of the river was located at what is now called Cowmire Creek near Aubuchon Road. Over the last century and one half, the river channel slowly shifted northward until the former island became attached to the St. Louis County riverbank. Even after it became part of the mainland early in this century, almost none of the land was suitable for farming because of the low-lying swampy character of the land, the dense growth of timber, brush and vines and the frequent flooding. In 1950 when the Essens conveyed this property to defendants, it remained largely a vast wasteland of little value. ⁵ Since that time many improvements have taken place increasing the worth of the land. One or more levees have been constructed which have lessened, though not eliminated the flooding problems, and which have decreased the acreage covered by swamps. Additionally, the land was cleared of floodplain vegetation. This clearing occurred slowly and sporadically in the 1950's, but its pace quickened appreciably in the early 1960's and has continued until the present. Today the vast majority of the land is suitable for farming. There remain, however, a number of low-lying sloughs crisscrossing the property as well as the free-flowing Cowmire Creek.

Before detailing and examining claimant's acts of possession which allegedly vested title in them to the land in controversy, we indite the well settled precepts of the law of adverse possession. The claimant has the burden of proving by the preponderance of the evidence the existence for the entire statutory period of each and every element of adverse possession. He must show actual, hostile, i. e., under a claim of right, open and notorious, exclusive and continuous possession of the property for ten years. Failure to prove any one element prevents the ripening of title by adverse possession. § 516.010 RSMo 1969. Conran v. Girvin, 341 S.W.2d 75 (Mo. banc 1960); Walker v. Walker, 509 S.W.2d 102 (Mo.1974); Wilton Boat Club v. Hazell, 502 S.W.2d 273 (Mo.1973); Moran v. Roaring River Dev. Co., 461 S.W.2d 822 (Mo.1970); Wykle v. Colombo, 457 S.W.2d 695 (Mo.1970); Miller v. Warner, 433 S.W.2d 259 (Mo.1968); Carlisle v. Keeling, 347 S.W.2d 191 (Mo.1961); Hamburg Realty Co. v. Walker, 327 S.W.2d 155 (Mo.1959); Feinstein v. McGuire, 297 S.W.2d 513 (Mo.1957); Horton v. Gentry, 357 Mo. 694, 210 S.W.2d 72 (1948).

In dealing with a case of adverse possession, it must be remembered that we are presented with mixed questions of law and fact in which the application of the facts to the law presents the major issues of controversy. See Moss v. James, 411 S.W.2d 104 (Mo.1967). Moreover, our task is further complicated by the fact that every piece of property is unique. Thus, in determining whether the facts in evidence authorize a finding that the elements of adverse possession have been satisfied, each case must be decided in light of its own unique circumstances. Much depends on the location, the character and the use to which the land in question may reasonably be put. Lossing v. Shull, 351 Mo. 342, 173 S.W.2d 1 (1943). Those specific manifestations of possession and ownership exhibited by a claimant which would support a finding of title by adverse possession in a populous and highly developed area are not the same as those which would support such a finding where, as here, the property is sparsely populated farm and waste land. Feinstein v. McGuire, supra.

The essential requirement of adverse possession is that the possessor's occupancy be truly adverse and in opposition to the title of the record owner. Russell v. Russell, 540 S.W.2d 626 (Mo.App.1976). The claimant must occupy the particular piece of property intending to possess it as his own. His occupancy must be in defiance of, not in subordination to, the rights of others. Benson v. Fekete, 424 S.W.2d 729 (Mo. banc 1968); Mooney v. Canter, 311 S.W.2d 1 (Mo.1958). An adverse possessor does not recognize the authority of the record titleholder to permit or to prevent his continued use of the property claimed. Benson v. Fekete, supra. Such adversity is shown by satisfaction of the five elements of adverse possession.

The first element is actual possession. Two concepts are relevant in determining whether a claimant has established his actual possession of the land claimed. They are his present ability to control the land and his intent to exclude others from such control. Miller v. Warner,supra; Hamburg Realty Co. v. Walker, supra. Where the claimant occupies land without color of title, in order to prevail, he must show physical possession of the entire area claimed. Pharis v. Jones, 122 Mo. 125, 26 S.W. 1032 (1894); Wykle v. Colombo, supra. A mere mental enclosure of land does not constitute the requisite actual possession. Wilson v. Purl, 148 Mo. 449, 50 S.W. 90 (1899). Rather, there must be continual acts of occupying, clearing, cultivating, pasturing, erecting fences or other improvements and paying taxes on the land. The performance of all or any combination of these acts of occupancy serves as evidence of actual possession but is not conclusive. See Dunlop v. Hartman, 338 S.W.2d 10 (Mo.1960); Brown v. Evans, 182 S.W.2d 580 (Mo.1944); Jamison v. Wells, 7 S.W.2d 347 (Mo.1928); McVey v. Carr, 159 Mo. 648, 60 S.W. 1034 (1901); Franklin v. House, 533 S.W.2d 243 (Mo.App.1976); Moise v. Robinson, 533 S.W.2d 234 (Mo.App.1975). Each case must be decided on its own peculiar facts.

Where the claimant occupies land under color of title the requirement of actual possession of the entire area claimed is relaxed. By statute, one who occupies land under color of title is required only to physically possess a part of the tract claimed in the name of the whole, if during the period of possession he exercises the usual acts of ownership over the whole. § 516.040 RSMo. 1969. Thus, color of title is not an element of adverse possession, but it serves to extend actual possession of some portion of the land claimed to constructive possession of the whole tract described in the instrument providing the basis for color of title. ⁶ Moran v. Roaring River Dev. Co., supra; Cullen v. Johnson, 325 Mo. 253, 29 S.W.2d 39 (1930). The instrument relied upon as color of title...