Wilton Boat Club v. Hazell, 57378

• Court: Missouri Supreme Court
• Writing for the Court: HOLMAN
• Citation: Wilton Boat Club v. Hazell, 502 S.W.2d 273 (Mo. 1973)
• Decision Date: 10 December 1973
• Docket Number: No. 1,No. 57378,57378,1
• Parties: WILTON BOAT CLUB, an unincorporated association by its members, Chester Reeder et al., (Plaintiffs) Respondents, v. Gladys Leona HAZELL, Substitute Defendant for Laurence E. Hazell, Deceased,(Defendant) Appellant, Missouri, Kansas & Eastern Railway Company et al. Defendants

Page 273

502 S.W.2d 273

WILTON BOAT CLUB, an unincorporated association by its members, Chester Reeder et al., (Plaintiffs) Respondents, v. Gladys Leona HAZELL, Substitute Defendant for Laurence E Hazell, Deceased,(Defendant) Appellant Missouri, Kansas & Eastern Railway Company et al. Defendants.

No. 57378.

Supreme Court of Missouri, Division No. 1.

Dec. 10, 1973.

Scott Orr, Sapp, Woods, Dannov & Orr, Columbia, for respondents-plaintiffs.

Harry T. Limerick, Jr., Columbia, for appellant.

HOLMAN, Judge.

This suit to quiet title was filed by eighteen individuals who are said to be members of the Wilton Boat Club, an unincorporated association. A number of defendants were named but the only one filing a pleading was Laurence E. Hazell. In addition to an answer, he filed a counterclaim wherein he sought in Count I to quiet title in himself to the same land described in plaintiffs' petition and, in Count II, damages for the trespasses of plaintiffs. It was stipulated that the right-of-way of the Missouri, Kansas and Texas Railway Company is not affected by this suit. A trial resulted in a judgment in favor of plaintiffs on their petition and also on the counterclaim. As hereinafter explained, an appeal has been taken to this court. We have jurisdiction since title to real estate is involved and the notice of appeal was filed prior to January 1, 1972. Mo.Const. Art. V, § 3, V.A.M.S.

Plaintiffs claimed title by adverse possession. Defendant Laurence Hazell claimed to be the record owner of a part of the land in question, and the owner of the remainder because it had accreted to his land. The deeds admitted in evidence showed, however, that the land was conveyed to Laurence and his wife Gladys as tenants by the entirety. After the judgment was entered it developed that Laurence had died while the case was under submission. Had no further action been taken, the judgment would likely have been of limited and questionable validity since Gladys, a necessary party, was not a party to the suit. However, Gladys promptly filed a motion to be made a party, alleging that by reason of the death of her husband she was show the sole owner of the property and entitled to be made a party in order to protect her interests. The court entered an order making Gladys a party defendant and, within the appropriate time, she filed a motion for new trial. The motion was directed to the merits and not upon the fact that she had not been made a party prior to judgment. The motion was overruled and Gladys filed a notice of appeal in which she designated herself as 'substitute party for Laurence E. Hazell.' She has briefed the case here on the merits.

The foregoing situation is indeed unusual. We have the view that Gladys could not have been brought in involuntarily and bound by the trial and judgment herein since she was not a party in the case. However, since she voluntarily sought to be made a party (without objection from plaintiffs) and elected to be substituted for her deceased husband, and, as the alleged sole record owner of the property filed a motion for new trial on the merits and has so briefed the case here, we hold that she has adotped all proceedings occurring before she was made a party and will be bound by the final decision in this case.

The land in controversy is located in Boone County and described as the North Half of Section 35, Township 46, Range 13, lying south and west of the railroad right-of-way. One witness said the tract contained two or three acres. It has not been assessed for taxes, and one witness said 'it wouldn't be worth paying taxes on.' It fronts on the Missouri River and for many years has been used by some of the plaintiffs and by other members of the public as a place to tie up their fishing boats. Several of the plaintiffs are commercial fishermen and fish all the way from Brunswick to Jefferson City. This land floods when the river rises and, since 1962, the lower part has been built up considerably by deposit of sediment. Laurence testified that eight or ten acres had accreted to his original shoreline.

The boat club was organized in 1968. At about that time the members requested that the railroad company construct a crossing to this land and the company refused on the ground that no one owned the land. It was this development which apparently caused plaintiffs to file this suit seeking title to the tract. Plaintiffs alleged 'that title to said real estate has vested in them and those under whom they claim by limitations under the provisions of § 516.070, RSMo 1959 (V.A.M.S.), and other sections thereof; that plaintiffs and those under whom they claim title have been in hostile, actual, open, notorious, exclusive and continuous and adverse possession of this land for over 31 years next to this date and that no taxes have (been) nor are now assessed thereon.' Although plaintiffs pleaded the 31-year statute, they now contend that they were entitled to judgment upon proof of 10 years' adverse possession under § 516.010. ¹ For the purposes of this case we will assume (but do not decide) that such is the case.

We have concluded that the evidence does not support a finding that plaintiffs acquired title by adverse possession. It is true that, in answer to leading questions, several of the plaintiffs testified that they claimed the land by virtue of open, hostile, exclusive, and adverse possession. However, the facts developed do not support that assertion. The facts were that several of the plaintiffs had used this area for a number of years (perhaps 20 years or longer) as a place to tie up and launch their fishing boats. Through the years three sheds have been built on the land to store fishing equipment but they washed away during high water. The only shed presently in the area was moved to the railroad right-of-way in order to avoid the high water. From 1946 to 1948 one of the plaintiffs had a sawmill in this area but its exact location does not appear.

The evidence indicates that plaintiffs did not claim to have exclusive possession of the land. Durwood Hazell testified as follows: 'Q. You were the only ones that used the property? A. No. Q. Who else used the property? A. Anyone in the country around there if they wanted to put a boat in or out or drag out some piling, he did that.' Another plaintiff stated that 'people come down there and fish from all over the country.' Emmitt Crump gave the following testimony: 'Q. What other use did you make of this land? A. Well, just for picnic and fishing. Q. Who used these grounds? A. Anybody that wanted to.' At this point it seems appropriate to consider the law relating to the power of more than one adverse claimant to have exclusive possession of land. It has been said that '(a)s a general rule, exclusive possession of an adverse claimant cannot be based on use or occupation in common with neighbors, third persons, or the public generally; but two or more persons claiming as cotenants may as such have such a joint possession as will ripen into title.' 2 C.J.S. Adverse Possession § 56, p. 729. It is our view that it would be possible to have a group which is so cohesive and strongly organized that the joint possession of its members could ripen into a cotenancy title. In this case, however, the evidence does not indicate that plaintiffs had any such organization prior to 1968. If they considered themselves to be a group it was very informal.

Our interest has been aroused by the fact the several of the plaintiffs testified that they claimed 'squatters rights' to this land. For example, James Crump testified, 'Q. Did you claim title to all this property? A. Well, just squatters rights.' Jesse Calvin testified as follows: 'Q. Did you claim that you owned this property? A. No, I didn't claim we owned it. We had squatters rights on it. ...