Whetstone Baptist Church v. Schilling

• Decision Date: 22 August 2012
• Docket Number: No. SD 31412.,SD 31412.
• Citation: Whetstone Baptist Church v. Schilling, 381 S.W.3d 366 (Mo. App. 2012)
• Parties: WHETSTONE BAPTIST CHURCH, Plaintiff–Respondent, v. Donald SCHILLING and Jennifer Schilling, Defendants–Appellants, and Mountain Grove Rentals, Inc., a Missouri Corporation, Defendants.
• Court: Missouri Court of Appeals

381 S.W.3d 366

WHETSTONE BAPTIST CHURCH, Plaintiff–Respondent,

v. Donald SCHILLING and Jennifer Schilling, Defendants–Appellants,andMountain Grove Rentals, Inc., a Missouri Corporation, Defendants.

No. SD 31412.

Missouri Court of Appeals,

Southern District,

Division One.

July 31, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 22, 2012.

Application for Transfer Denied Oct. 30, 2012.

Paul F. Sherman, Springfield, MO, for Appellant.

Raymond M. Gross, Gainesville, MO, for Respondent.

DON E. BURRELL, Presiding Judge.

Donald Schilling and Jennifer Schilling (“Defendants”), husband and wife, appeal a judgment quieting title in favor of Whetstone Baptist Church (“Plaintiff”) to a strip of land (“the disputed land” or “the old roadway”) that Plaintiff's predecessor in title had allegedly acquired by adverse possession. In a single point relied on, Defendants claim that: 1) a necessary elementof adverse possession—that the possession at issue was “hostile, under claim of right, and adverse to the true owner”—was not supported by substantial evidence; and 2) Plaintiff's predecessor implicitly admitted that “paramount title” to the disputed land belonged to “someone else” when he and his estate executed certain deeds that did not include the disputed property. Finding no merit in either claim, we affirm.

Applicable Principles of Review & Governing Law

When reviewing a court-tried case, we must sustain the decree or judgment of the trial court “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. banc 1976). The trial court may decide whether to believe all, some, or none of any witness's testimony. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). If the trial court does not make findings on specific factual issues, then all facts are “considered as having been found in accordance with the result reached.” Rule 73.01(c) ¹; see also Ratteree v. Will, 258 S.W.3d 864, 872 (Mo.App. E.D.2008). “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.” T.B.G., 772 S.W.2d at 654. Our following summary of the relevant evidence is presented in accordance with these governing principles.

Facts and Procedural Background

The parties are the present owners of parcels of land in Mountain Grove that abut the old roadway. Plaintiff's land is east of Defendants' land, and both parcels are bounded on the north by “new” U.S. Highway 60 and on the south by “old” U.S. Highway 60. Defendant's Exhibit A, a survey Plaintiff stipulated was accurate, indicates that at the time of trial a “graveled lane” ran generally north/south along the eastern side of Defendants' land and that a fence (“the old fence”) was located between the edge of Defendants' land and the graveled lane and ran parallel to the graveled lane.

In 1981, Jefferson Brook Franklin and Carol Franklin were married. At the time of his marriage to Mrs. Franklin, Mr. Franklin had sole ownership of both parcels now separately owned by Plaintiff and Defendants. The house in which the Franklins resided is on the land now owned by Defendants (“the western parcel”). The land now owned by Plaintiff (“the eastern parcel”) was unimproved when Plaintiff purchased it. The old roadway, which sits between the eastern and western parcels, is 20 feet wide. At the time of the Franklins' marriage, the record owner of the old roadway was William S. Candler.

In 1989, Mr. Franklin transferred by quit-claim deed his sole ownership interest in the western parcel to himself and Mrs. Franklin as husband and wife. He made no such transfer of the eastern parcel, which remained in his sole name.

In 1995, the Franklins sold the western parcel to John and Linda McGann. ² The McGanns then conveyed the western parcel to Defendants in 2004. The general warranty deed from the Franklins to the McGanns described the western parcel as follows:

That part of the East Half of the Northeast Quarter of the Northwest Quarter of Section 12, Township 28, Range 13, lying South of the right-of-way of the new relocated Highway 60, EXCEPT a strip 20 feet wide off the East side thereof.

Mrs. Franklin believed the western parcel was bounded by and divided from the eastern parcel by the old fence, which was in existence when Mrs. Franklin first moved onto the property in 1981 and was still there when she moved away in 1995. To access the eastern parcel from the western, Mr. Franklin would go out the southern end of the western parcel onto old highway 60, travel east a short distance, then turn north into the eastern parcel through a gate located to the east of the old fence. That gate blocked access to the old roadway and opened onto it.

The old roadway was “grown up” and covered with grass when Mrs. Franklin moved onto the western parcel in 1981, but Mr. Franklin “cleaned it out” “and kept it mowed” at least monthly (except during the winter) and he “pulled a lot of the wild roses off [the old fence] so it looked better.” The old roadway was never used as a road during the entire fifteen years that Mrs. Franklin lived on the property. Mr. Franklin mowed the old roadway with the rest of the eastern parcel. While she and Mr. Franklin lived on the western parcel, they were the only people who ever went onto the eastern parcel; it was fenced off from and was not open to the public.

To access the eastern parcel, Mrs. Franklin sometimes crawled through the old fence because the gate Mr. Franklin used to access it was too heavy for her. Mrs. Franklin picked “the most delicious pears” from trees along the eastern side of the old roadway. Instead of allowing others to harvest the pears, Mrs. Franklin would “pick them and take them to them.” Mr. Franklin also did not let anyone harvest hay from the eastern parcel. “He just let it dry” after he cut it with something Mrs. Franklin called a “Hay field mower.”

Even after the Franklins sold the western parcel and moved out of the house, Mrs. Franklin continued to pick pears from the eastern parcel. Although she did not recall her husband having gone back out to the eastern parcel after the move, “they” kept it, intending to someday build a new home there.

Mr. Franklin died in 2003. That same year, as personal representative of his estate, Mrs. Franklin sold the eastern parcel to Plaintiff, then known as “University Baptist.” Mrs. Franklin testified that Mr. Franklin “had a will” and “willed everything to [her].” When she sold the eastern parcel to “the church,” Mrs. Franklin intended to convey everything east of the old fence, including the old roadway, as she regarded the land east of the old fence as being “all one.” The deed to “University Baptist,” admitted into evidence as “Defendant's Exhibit P,” described the parcel as:

All that part of the West one-fourth of the Northwest Quarter of the Northeast Quarter of Section 12, Township 28, Range 13 lying South of New US. Highway # 60 (except right-of-way for public roads), Wright County, Missouri.Although Mrs. Franklin believed that it did, this deed did not include the 20 feet on the eastern edge of the Northeast Quarter of the Northwest Quarter of Section 12 that was specifically excepted out of the deed the Franklins had earlier provided to the McGanns.

On July 30, 2008, after the dispute between the parties arose but before Plaintiff's original petition was filed on February 23, 2009, Mrs. Franklin, as “a single person,” executed a quit-claim deed in favor of Plaintiff to:

That part of the E 1/2 of the NE 1/4 of the NW 1/4 of Section 12, Township 28, Range 13 lying south of the right-of-way of the new relocated Highway 60. [ ³]

She did this because she wanted to make clear that all of the land east of the old fence was a part of Plaintiff's property. She had rejected an earlier request from Defendants to “sign a paper” in their favor.

Jason Davis was the pastor employed by Plaintiff at all pertinent times. He initially understood that the old fence marked the boundary line of Plaintiff's property. After the instant dispute arose, Mr. Davis thought that Mrs. Franklin's quit-claim deed “completed” what had been left out of the legal descriptions and gave Plaintiff what Mrs. Franklin had intended to convey to Plaintiff. When Plaintiff purchased the eastern parcel, the old roadway still appeared as a “slight depression, but it was just over grown in grass.”

After Defendants purchased the western parcel in 2004, they did not mow or maintain the land on the east side of the old fence; all of the land on that side was maintained by Plaintiff. Mr. Schilling understood that the eastern “20 feet was excepted out of [the] deed” Defendants had received from the McGanns. Mr. Schilling admitted that Defendants did not maintain in any way the land on the east side of the fence until 2007, except to cut brush from around their electric meter, which was located on a pole near the fence line. Mr. Schilling believed that the old roadway “was potentially a public road; therefore, [sic] being abandoned.”

Plaintiff first modified the eastern parcel by removing the southern fence and its gate across the old roadway. Plaintiff then constructed a church and other buildings on the eastern parcel. Plaintiff constructed a driveway on the west side of its property that circled around the church building and traveled toward the east side of the property. Each end of the driveway connected to old highway 60.

A member of the church board during the time of this construction, Douglas Waggoner, testified that the driveway started where the gate across the old roadway had been. Plaintiff improved the old roadway by “brushhogging,” removing a “great deal” of growth, and by hauling in gravel. Defendant's...