Whiteside v. Rottger, 67451

• Citation: 913 S.W.2d 114
• Decision Date: 26 December 1995
• Docket Number: No. 67451,67451
• Parties: Richard WHITESIDE, Jr., Evelyn Whiteside, Helen Machir, Jackie Curtis Trail, James Richard Trail, Milroy Whiteside, Joanne Talbot, Sammy Whiteside, Diane Whiteside, Eddie Whiteside, Linda Whiteside, Bobby Whiteside, and Diane Whiteside, Plaintiffs/Respondents, v. Everett ROTTGER, Trustee Under the Josephine Brooksher Inter vivos Trust, and Joe Brooksher, Defendants/Appellants.
• Court: Missouri Court of Appeals

Page 114

913 S.W.2d 114

Richard WHITESIDE, Jr., Evelyn Whiteside, Helen Machir,

Jackie Curtis Trail, James Richard Trail, Milroy Whiteside,

Joanne Talbot, Sammy Whiteside, Diane Whiteside, Eddie

Whiteside, Linda Whiteside, Bobby Whiteside, and Diane

Whiteside, Plaintiffs/Respondents, v. Everett ROTTGER, Trustee Under the Josephine Brooksher Inter

vivos Trust, and Joe Brooksher, Defendants/Appellants.

No. 67451.

Missouri Court of Appeals,

Eastern District,

Northern Division.

Dec. 26, 1995.

Edward Joseph Grewach, Troy, for appellants.

David Wayne Suddarth, Troy, for respondents.

RHODES RUSSELL, Judge.

This is an appeal from a judgment in an action to quiet title in a parcel of undeveloped land located in Lincoln County. Plaintiffs are the heirs of Josiah Whiteside, the grandfather of plaintiff Richard Whiteside, Jr. The parcel in dispute is a small portion of property formerly known as Kings Lake. Plaintiffs sued to quiet title in the strip of land which is situated in between two parcels of land owned by the Josephine Brooksher Trust. Defendants are Everett Rottger, the acting Trustee of the Josephine Brooksher Trust, and Joe Brooksher, a beneficiary and remainderman of the Josephine Brooksher Trust. Defendants counterclaimed seeking title to the same parcel by adverse possession. The trial court entered judgment in favor of Plaintiffs and Defendants appealed. We affirm in part and reverse in part.

The controversy involves the ownership of a 18.993 acre tract of land located in Lot 10 of U.S. Survey 1732, Township 50 North, Range 2 East of the Fifth Principal Meridian in Lincoln County. To fully understand the nature of this dispute, we look to deeds executed over one hundred years ago, surveys conducted within this century and the actions of the parties and their predecessors in interest. We attach for illustration only a diagram of the subject property. ¹

To begin, in 1889, Josiah Whiteside executed a deed to William Fisse conveying the following:

All of Lot No. Ten in Survey 1732, that lays on the West side of Kings Lake; there being Twenty-One acres, more or less of same, it being land deeded to Josiah Whiteside by Jacob Winter, and so much of the North side of Lot No. Eleven, in Survey 1732 as will make forty acres including the above described part of Lot No. Ten; the said part of Lot No. Eleven to lay in a parallel shape with Lot Ten, all lying and being in Survey No. 1732, Township Fifty, Range Two East, Lincoln County, and State of Missouri.

Then, in 1893, Josiah Whiteside executed another deed to John Gebauer for the following tract:

All of Lot No. 10 in Survey No. 1732, Twp. Fifty, Range 2 East in Lincoln County and the State of Missouri, that lays on the EAST side of Kings Lake, there being thirty acres, more or less. The top of the Lake Bank on the East side of Kings Lake being the West line of said land, it being part of the land deeded to me by Jacob Winter.

It is the parcel of land situated in between what is referred to as the west and east banks of Kings Lake that is in dispute. It should be noted that while the property is referred to as "Kings Lake," there has not existed a body of water one would commonly call a lake (or any other substantial body of water for that matter). The presence of water on the parcel has varied depending on the land and weather conditions. The only constant water on the property is situated in the drainage canal, which can vary in width from fifty to eighty feet. ²

William J. Shea, Jr., a licensed surveyor, testified for the Plaintiffs. Shea surveyed the property at issue upon request by plaintiff Richard Whiteside, Jr. He testified that before conducting the survey he referred to several documents to familiarize himself with the property, as is typically done before going onto the property. Shea looked at a survey dating back to 1907 on which there was a monumentation noted marking the east bank of Kings Lake. The 1907 survey indicated that a railroad iron marked the east bank. When Shea conducted his survey he, too, encountered the railroad iron marking the east bank. As referenced in another survey, Shea was able to locate another railroad iron representing the west bank of Kings Lake. After surveying the subject property, Shea compiled a legal description of the property, assessing the disputed tract at 18.993 acres. This legal description was marked as an exhibit and entered into evidence and was eventually adopted by the court in its judgment.

Plaintiffs also offered the testimony of plaintiff Richard F. Whiteside, Jr. ("Richard, Jr."). Richard, Jr., age 74 at the time of trial, lived all his life in the area near that in dispute. He acquired title to the land situated just south of the disputed property. His grandfather, Josiah Whiteside, originally owned the whole region consisting of Lots 10, 11 and 12 and deeded select portions pursuant to the aforementioned deeds of 1889 and 1893. That left the remaining adjacent tracts which Richard's father, R.F. Whiteside, Sr., formerly farmed. When Richard, Jr. gained title to the tracts, he also used the property to farm. Richard, Jr. relayed that as a young boy his father showed him the railroad irons marking the boundary lines of the property. It was these railroad irons that formed the boundary lines for the disputed tract, in Richard's mind, and not any body of water.

Richard, Jr. continued by giving an historical account of the land surrounding that in dispute. He traced the ownership of the various tracts. The two separate parcels deeded in 1889 and 1893 eventually passed to Rex and Josephine Brooksher. It was Richard, Jr.'s testimony that neither Rex nor Josephine Brooksher ever did anything to lay claim to any portion of the disputed property. Indeed, the whole Whiteside family, through each generation, believed that they owned the disputed parcel. Richard, Jr. testified that when he was a teenager, his family pastured and raised cattle on the disputed parcel, which required them to build a fence and install a well. His family also hunted, fished and cut down trees on the disputed property. All the while these activities took place, he recalled no one ever laying claim to the property or evicting them from the property. Richard, Jr. recalled having to occasionally run persons off of the property, including one incident involving Defendant Joe Brooksher when he entered to cut down trees. He testified that the Elsberry Drainage District once requested permission to come onto the disputed property and clean the drainage ditch. He granted permission and eventually entered into an agreement with them, dated September 7, 1992, allowing the district access to the property to clear the drainage canal.

Plaintiffs also offered testimony of Richard F. Whiteside III, the great-grandson of Josiah Whiteside, who testified concerning growing up near the parcel and how he and his father, Richard, Jr., would go hunting and fishing on it. He, too, relayed how his father showed him the boundary lines of the property by pointing out the railroad irons at the northeast corner of the disputed parcel. He further testified that only his father and mother claimed ownership to the property and that no one else had ever laid claim to it or tried to run him off the property. This testimony was similar to that of other family members and family friends who relayed how they had entered the property with the Whitesides for various purposes, to hunt, fish and cut wood, and that no one had chased them off or claimed title to the disputed tract.

Sam Mayes, a former officer with the local drainage district, also testified for Plaintiffs. Mayes testified that the district contacted Richard, Jr. in order to arrange for the drainage ditch to be cleaned and that the district entered into an agreement with the Whitesides for the cleaning so as to avoid possible trespass charges. The district had contacted no one else for permission to clean the canal.

Joe Brooksher testified as a hostile witness for Plaintiffs. Brooksher explained that he was raised on the property adjoining that in dispute. His parents, Rex and Josephine Brooksher, had purchased the land in 1942. Brooksher stated that he had sometimes entered the disputed tract without permission to cut wood or do other activities and that on one occasion Richard, Jr. had ran him off of the property. Brooksher testified that neither he nor other family members laid claim to the disputed parcel before 1992. In fact, Brooksher admitted that they thought the land belonged to Whitesides. It was not until 1992 when the drainage district came to clean the ditch and questioned the ownership of the land that Brooksher decided to seek title to the parcel.

Defendants offered the testimony of two witnesses. Both testified to the nature of the disputed land. One witness, John Scott, who was a lifelong resident of the area, stated that Rex and Josephine Brooksher never claimed title to the land and that it was not until recently that Joe Brooksher himself sought title to the parcel. Up to that point, it was the Whitesides that had claimed ownership of the property, according to Scott.

On March 18, 1993, Richard, Jr. and his wife, Evelyn, filed a two count petition, which was subsequently amended to add additional party plaintiffs. Count one asserted that Plaintiffs and their predecessors in title had continually for a period in excess of ninety years asserted ownership in the disputed parcel by adverse possession, claiming their ownership had been hostile, open and notorious. Count two sought a permanent injunction enjoining Joe Brooksher from entering and logging the property. Defendants counterclaimed claiming title to the same parcel by adverse possession. The action was tried without a jury. The court entered its judgment in favor of Plaintiffs on both counts. In its order the court decreed the land to Plaintiffs as follows:

A parcel of land in U.S. Survey 1732, Lincoln County,...