Walton v. Gilton

• Court: Missouri Supreme Court
• Writing for the Court: James K. Prewitt
• Citation: Walton v. Gilton, 175 S.W.3d 170 (Mo. 2005)
• Decision Date: 21 October 2005
• Docket Number: No. 26837.,26837.
• Parties: Larry D. WALTON and Pamela L. Walton, Plaintiffs-Appellants, v. Ray GILTON and Barbara Gilton, Defendants-Respondents.

175 S.W.3d 170

Larry D. WALTON and Pamela L. Walton, Plaintiffs-Appellants, v. Ray GILTON and Barbara Gilton, Defendants-Respondents.

No. 26837.

Missouri Court of Appeals, Southern District, Division One.

October 21, 2005.

Ralph L. Innes, Edmundson, Edmundson & Innes, Poplar Bluff, MO, for Appellants.

John F. Scott, Scott, Kidwell & Scott, Poplar Bluff, MO, for Respondents.

JAMES K. PREWITT, Presiding Judge.

Larry D. Walton and Pamela L. Walton ("Appellants"), husband and wife, appeal from a judgment entered by the trial court on January 13, 2005, in favor of Ray Gilton and Barbara Gilton ("Respondents"), husband and wife. Appellants sought title to real property by adverse possession.

Appellate review in this non-jury case requires that the judgment be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or unless it erroneously declares or applies the law. Schaefer v. Rivers, 965 S.W.2d 954, 956 (Mo.App.1998). The trial court's judgment is presumed valid, the burden is on the appellant to demonstrate its incorrectness, and due regard is given to the trial court to judge the credibility of witnesses. Id.

Appellants and Respondents own adjacent real property. Respondents have lived at the property known as 2147 County Road 425 since 1975. Appellants have lived at 2001 County Road 425 since acquiring the property from John and Pat Morgan in 1985. The Morgans purchased this property from Norma and Oscar Morgan in 1978.

In 1975, Respondent Ray Gilton and Oscar Morgan built a fence along what they considered the property line. No survey was done at the time. In 1992, Respondents had a survey conducted which determined that the record property line was south of that fence.

When Respondents built a new fence in April of 2003, it followed the surveyed line with the exception of an area reserved for Appellants' driveway. Appellants filed their petition on October 15, 2003. Trial was held on August 27, 2004, and Findings of Fact, Conclusions of Law, and Judgment were entered on January 13, 2005. The trial court found Appellants were aware of the 1992 survey and "that the actual property line was not the old fence, but rather where the new fence is located." The trial court also found Appellants used the portion of the disputed area with "the knowledge and acquiescence of [Respondents]." The court ordered that title of the disputed property be vested in Respondents. Appellants filed their notice of appeal on February 14, 2005.

"To prevail on a claim of adverse possession, Respondent must prove by a preponderance of the evidence . . . that the possession was (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for a period of ten years." Luttrell v. Stokes, 77 S.W.3d 745, 750 (Mo.App.2002). "[L]ong and continued use creates a presumption that it was adverse and casts on the landowner the burden of showing that it was permissive." Harmon v. Hamilton, 903 S.W.2d 610, 613 (Mo.App.1995).

"[L]ong acquiescence in a fence as a boundary line will warrant a presumption that it is the true line." Kelley v. Prock, 825 S.W.2d 896, 900 (Mo.App.1992).

`Acquiescence for a length of time is evidence of a parol agreement that the line so delineated is to be considered the boundary line[,][a]nd, where the line has been acquiesced in for a great number of years by all the parties interested, it is conclusive evidence of an agreement to that line.'

Id. (quoting Mothershead v. Milfeld, 361 Mo. 704, 236 S.W.2d 343, 347 (1951)).

[A]lthough a fence built by one with record title to the property where the fence is located does not necessarily establish a belief that the fence is the property line, as there are many reasons for not placing a fence on the property line,. . . fencing property to which one does not have record title is a strong indication of a claim to the land.

Crowley v. Whitesell, 702 S.W.2d 127, 128 (Mo.App.1985).

From 1975 to 1992, the initial fence appeared to have been treated as the property line. Even if we assume that Appellants acquired title to the disputed property, under the evidence they could have lost that title after the survey in 1992. There was sufficient evidence for the trial court to find that since the survey Respondents re-acquired title through adverse possession. The trial court found that Appellants were aware of the 1992 survey, (LF, 17) and "their actions and/or failure to act for a period of more than ten years bars them from making a claim to said property."¹

Appellant was building a shed on the post-1992 property line. Respondent Ray Gilton testified Appellants stopped construction and relocated the shed based on the survey; Appellant Larry Walton testified he stopped because he could not afford to finish the shed and later chose to build the structure closer to his house.

Respondent Ray Gilton testified he placed five steel posts "on every one of the survey markers." He described these posts as "six-foot metal fence [posts]." Gilton testified that the posts remained until the new fence was built in April of 2003. He confirmed spraying purple spray paint on the trees along the property line in 1996 or 1997. Gilton also testified that Appellant Larry Walton approached him about buying this particular tract because the survey line came so close to his driveway. Gilton said he would not sell the property, but he agreed to let Appellants use the driveway.

Ray Gilton testified that between 1992 and 2003, he and his wife, Barbara, believed the property to the survey line belonged to them. He testified to cutting wood, hunting, and riding a four-wheel vehicle on the area. Appellant Larry Walton testified that during this...