Watson v. Mense
| Decision Date | 17 November 2009 |
| Docket Number | No. SC 89936.,SC 89936. |
| Citation | 298 S.W.3d 521 |
| Parties | Charles Robert WATSON and Carolyn Watson, Respondents, v. Robert K. MENSE and Carolyn K. Mense, Appellants, |
| Court | Missouri Supreme Court |
R. Timothy Bickhaus, Macon, MO, for appellants.
John W. Briscoe, Andrew W. Briscoe, New London, MO, for respondents
The Watsons brought actions for ejectment, trespass, quiet title and the establishment of an easement by prescription against the Menses regarding parcels of farmland. The trial court found in favor of the Watsons. The trial court's judgement as to ejectment damages is reversed. The trial court is required to enter a more definite legal description of the new borderline between the party's parcels and the easement by prescription and to determine the fair rental value of the disputed parcel. In all other respects, the judgment is affirmed. The case is remanded.
This is a dispute over farmland in Macon County. Charles and Carolyn Watson own two 40-acre, square parcels that are connected at a single diagonal point: one to the northwest and the other to the southeast. A path and a gate some 16 to 24 feet wide connect the two Watson parcels at the corner intersection. Robert and Carolyn Mense own a single 80-acre rectangular parcel that abuts both of the Watsons' parcels: it is south of the northwest parcel and west of the southeast parcel.
Starting in 1958, Charles Watson's mother, Jane Boulton, owned the two parcels and farmed various crops and grazed cattle. Boulton often moved cattle, trucks, and farming combines between the two parcels using the path through the corner intersection. Boulton's neighbor at the time, Frank Bush, owned the Mense parcel. A hedgerow and a fence created the border between the northern Watson tract and Bush's tract. Neither Bush nor Boulton farmed beyond their respective sides of the fence. There was never a dispute about the borderline location. Both parties recognized the fence and hedgerow as the border.
During the 1980s, Bush bulldozed the eastern half of the hedgerow and fence leaving an elevated "hump" of ground behind. However, Bush still never crossed the borderline. The western half of the fence still remained. Eventually, Bush sold his tract to Jim Nelson, who in turn sold it to the Menses in 2006.
The current dispute arose in 2006 when the Menses took title to their parcel. Using the termination point of the eastern property as a reference, Mr. Mense believed the borderline was eight feet to the north of hedgerow hump. In the spring of 2006, Mense planted corn up to that assumed border. In response, Charles Watson erected a post on the eastern side of the "hump," lining up the post with the remaining western fence line.
In further response, Mense used his tractor to tear out the post and parked the tractor in front of the diagonal gate between the two Watson parcels. Mense also placed a sign, threatening to arrest anyone who moved the tractor and offering to pay half the cost of a survey. Mr. Watson tried to replace the post some time later, but Mense removed it again.
In the summer of 2006, Mense hired Macon County surveyor Edward Cleaver, who adduced that the true borderline was about eight feet north of the fence erected by Mr. Watson.1 On the survey, Cleaver noted the location of the Watson's post and the hump of the hedgerow. During the spring of 2007, Mense planted soybeans up to the Cleaver survey line.
The Watsons then filed suit for ejectment, trespass and quiet title and asked the court to recognize an easement by prescription over the diagonal path between their two parcels and issue an order prohibiting the Menses from interfering with their easement. The Menses counterclaimed, asking for ejectment and trespass damages of their own. Before trial, the Menses consented to judgment quieting title to the record land descriptions, but maintained their contest over the disputed area north of the hedgerow.
The trial court found that the Watsons had established their adverse possession claim through the testimony of Jane Boulton, Charles Watson's mother and predecessor in title, and the testimony of Frank Bush and Jim Nelson who all testified that the hedgerow and fence were respected as the boundary line, and aerial survey photographs that showed cultivation up to the fence line by Boulton and the Watsons. Subsequently, the trial court awarded $75.00 in trespass damages for removal of the two posts and $90.00 as the value of the soybeans wrongfully planted on the Watson parcel. The trial court further found that the movement of equipment and livestock between the two parcels established an easement 24 feet in width and ordered that the Menses no longer interfere with the use of the easement. This appeal followed.
The Menses argue several points on appeal, which may be summarized as follows: First, that the trial court erred in finding that the Watsons adversely possessed the disputed parcel (point I) and awarding to the Watsons both trespass damages (point II) and ejectment damages (point III), and denying the Menses' quiet title action (point VI) and trespass damages (point IX).
Second, the Menses argue error in declaring the width of the easement to be 24 feet (point IV) and ordering the Menses to stop interfering with the easement (point V).
Third, they argue that the trial court erred in drafting a legally insufficient legal description in its final judgment (point VII).2
The appellate court will affirm the trial court's determination "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976). The trial court is free to believe or disbelieve all, part or none of the testimony of any witness. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). When determining the sufficiency of the evidence, an appellate court will accept as true the evidence and inferences from the evidence that are favorable to the trial court's decree and disregard all contrary evidence. Morgan v. Morgan, 701 S.W.2d 177, 179 (Mo.App.1985).
To acquire title by adverse possession or prescription, possession must be: (1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the necessary period of years prior to the commencement of action. Walker v. Walker, 509 S.W.2d 102, 106 (Mo.1974). The party claiming ownership by adverse possession has the burden of proving his claim by a preponderance of the evidence. Shuffit v. Wade, 13 S.W.3d 329, 335 (Mo.App.2000). The ten year period to confer title by adverse possession need not occur immediately prior the suit. Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339, 344 (1931). A claimant may tack her period of adverse possession with that of her predecessors in order to meet the ten year requirement. Kitterman v. Simrall, 924 S.W.2d 872, 876 (Mo.App.1996). The Menses argue that the Watsons' possession was not adverse because it was not hostile or actual.
The adverse possession doctrine encourages land owners to bring border disputes in timely fashion, thereby weeding out stale claims. When a border, even though erroneous, is observed by all parties as the boundary for the statutory period, it becomes the true boundary through adverse possession. This Court dealt with almost identical facts more than 50 years ago in Finck Realty Co. v. Lefler, 208 S.W.2d 213 (Mo.1948). In Finck, a dispute arose between owners of two parcels of farmland over the borderline. Id. at 213-14. For nearly 50 years, defendants' predecessors in title and plaintiff erroneously regarded a fence as the borderline between their two parcels Id. A survey revealed that the fence was encroaching over the true borderline onto the defendant's land. Id. at 215. This Court held that there need not be a dispute to make the plaintiff's possession adverse to the defendant and that there was sufficient evidence to find actual possession because the plaintiff predecessor in title had cultivated the enclosed land for over 50 years. Id.
There need not be a dispute between two adjoining landowners over the location of borderline to satisfy the hostile requirement. Boeckmann v. Fitzpatrick, 491 S.W.2d 524, 527 (Mo.1973). The element will be satisfied even if the possessor only mistakenly believes she owns the land and occupies the land in question. Underwood v. Hash, 67 S.W.3d 770, 775 (Mo.App.2002); State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, 176 (1941). The lack of a dispute between the Watsons and the Menses' predecessors in title is irrelevant to the hostility requirement. The trial court found that the Watsons believed that they owned the land north of the fence line which is sufficient to meet this element. Under Murphy, this finding is not disturbed.
The Menses also challenge the "actual" prong of the adverse possession test arguing that the Watsons took no action to possess the contested hedgerow area of land north of the fence line.
Whether an act constitutes actual possession "depend[s] on the nature and location of the property, the uses to which it can be applied and all the facts and circumstances of a particular case." Murphy v. Holman, 289 S.W.3d 234, 237 (Mo.App. W.D.2009). The element is less strict for wild, undeveloped land. Martens v. White, 195 S.W.3d 548, 554 (Mo.App. S.D.2006).
Evidence before the trial court showed that the Watson family had been farming, pasturing and cultivating the land continually as their own since 1958. During this period the land was enclosed by a fence and hedgerow that the Menses' and Watsons' predecessors in title treated as the boundary line. A...
To continue reading
Request your trial
-
Pearson v. Koster
...none of the testimony of any witness.’ ” Sch. Dist. of Kansas City v. State, 317 S.W.3d 599, 612 (Mo. banc 2010) ( quoting Watson v. Mense, 298 S.W.3d 521, 525–26 (Mo. banc 2009)). As previously discussed, fact issues on which no findings were made are considered as having been found in acc......
-
Pearson v. Koster
...or none of the testimony of any witness.'" Sch. Dist. of Kansas City v. State, 317 S.W.3d 599, 612 (Mo. banc 2010) (quoting Watson v. Mense, 298 S.W.3d 521, 525-26 (Mo. banc 2009)). As previously discussed, fact issues on which no findings were made are considered as having been found in ac......
-
Empire Dist. Elec. Co. v. Coverdell
...open and notorious, (4) exclusive, and (5) continuous for the necessary period of years prior to the commencement of action." Watson v. Mense, 298 S.W.3d 521, 526 (Mo. banc 2009).Although Coverdell argues that "the proper course" for Respondents "would have been a motion to make more defini......
-
Land Clearance for Redevelopment Auth. of St. Louis v. Osher
...testimony of any witness" testifying at trial. Tolliver v. 5 G Homes, LLC , 563 S.W.3d 827, 834 (Mo. App. E.D. 2018) (citing Watson v. Mense , 298 S.W.3d 521, 525-26 (Mo. banc 2009) ). We defer to the trial court's assessment of credibility of witnesses who testified at trial. State ex rel.......