Dumproff v. Driskill

376 S.W.3d 680, 2012 WL 1065849, 2012 Mo. App. LEXIS 444
CourtMissouri Court of Appeals
DecidedMarch 29, 2012
DocketNo. SD 31101
StatusPublished
Cited by6 cases

This text of 376 S.W.3d 680 (Dumproff v. Driskill) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dumproff v. Driskill, 376 S.W.3d 680, 2012 WL 1065849, 2012 Mo. App. LEXIS 444 (Mo. Ct. App. 2012).

Opinion

GARY W. LYNCH, Judge.

George R. Dumproff and Donna M. Dumproff, as co-trustees under the provisions of a private trust agreement dated March 10, 1992 (collectively “the Dum-proffs” and individually “George” and “Donna”), appeal the trial court’s judgment finding Carol Joy Driskill, as trustee of the Carol Joy Driskill Trust dated July 21, 1994 (“Carol”), the owner of three tracts of land by adverse possession.1 The [684]*684Dumproffs claim the trial court’s judgment was erroneous because the actual possession, ten-year period, and open-and-notorious possession elements of adverse possession were not supported by substantial evidence.2 Finding that the actual possession element of adverse possession for two of the three tracts for the requisite time period is not supported by substantial evidence, we reverse and remand the judgment as to those two tracts and affirm the judgment as to the third.

Factual and Procedural Background

Viewed in the light most favorable to the judgment, City of Gainesville v. Morrison Fertilizer, Inc., 158 S.W.3d 872, 874 (Mo.App.2005), the following evidence was adduced at trial.

In February 1999, the Dumproffs purchased a tract of mostly wooded land in Hickory County, Missouri (“the Dumproff Tract”), from Dave Dotson. The Dum-proffs later deeded that tract to their trust. The Dumproffs’ home is located on the southern bootheel of the property along a road, in one of the few cleared areas. The Dumproff Tract is surrounded on the north, west, and south (except for the bootheel hereinafter described) by property owned by Carol (“the Driskill Tract”).

In 2006, the Dumproffs had their tract surveyed. The survey disclosed that the Dumproffs’ deed legally described an 83.522-acre tract that consists of the East half of the Northeast Quarter of Section 21, Township 38, Range 20 (the “eighty”), and a bootheel below the southeast corner of the tract. The bootheel is a rectangular-shaped tract measuring 450 feet east to west by approximately 250 feet north to south, the south boundary of which is a public road. In addition to showing the legal boundaries of the property according to its legal description, the survey also showed a fence that served to enclose most of the property. It disclosed, however, that the fence did not actually follow the boundary lines of the Dumproff Tract according to its legal description.

The variances between the fence and the legally described boundary lines created five disputed tracts — three within the Dumproff legal description but on the Driskill side of the fence, and two within the Driskill legal description but on the Drumproff side of the fence. The three disputed tracts within the Dumproff legal description include: a 0.441-acre rectangular tract running north and south on the west end of the bootheel (“Tract A”);3 a 10.531-acre tract that begins at the southwest corner of the eighty and bows to the east along the southern approximately three-fourths of the west side of the eighty to a point that is 249 feet east of the west boundary before gradually curving back to the west to intersect with the north boundary of the eighty some 204 feet east of its northwest corner (“Tract C”); and a 2.271-acre triangular tract in the northeast corner of the eighty, the hypotenuse of which runs from the northern boundary line to the eastern boundary line along the top of a seventy-foot bluff overlooking a creek below that flows through the trian-[685]*685guiar tract (“Tract E”). The two disputed tracts within the Driskill legal description include: a 0.738-acre tract adjacent to and along the southern boundary of the eighty and west of the bootheel (“Tract B”); and a 0.615-acre triangular tract, one leg of which sits on the northern boundary of the eighty beginning 204 feet east of its northwest corner (“Tract D”). Until the survey, the Dumproffs did not make any claim of ownership to the land outside the fence.

Carol and her husband, Marvin Driskill, purchased the first portion of the Driskill Tract from Richard and Violet Gunter in March 1973. This portion of the property abuts the Dumproff Tract to the west and south up to the bootheel, and for some time this portion has been referred to as “Rabbit Ranch.” The Driskills acquired the remaining portion — the land bordering the north side of the Dumproff Tract— from Richard and Dorothy Cox (“the Cox property”) in March 1980.

Marvin Driskill was born in 1939 and was raised within a mile of the disputed land. Upon marrying Carol and leaving home in 1959, Marvin moved to another nearby tract of land, once owned by his father and eventually conveyed to Marvin, located approximately a mile and a half from the Dumproff Tract. This tract abuts the Driskill Tract to the west. The land contained within the Driskill Tract was deeded to Carol’s trust on July 28, 1994, as a result of the couple’s estate planning; the remaining land owned by the Driskills was deeded to Marvin’s trust.

Marvin Driskill first became familiar with Rabbit Ranch around 1953, when he was fourteen years old. His father took him deer hunting on the property, from early morning until late in the afternoon. At that time, the Dumproff Tract was owned by Lark Case, and Rabbit Ranch was owned by Ed Holmes. Also at that time, Marvin witnessed the building of the fence around the Dumproff Tract by contract fence builders, Bill and Millie Lyons. Marvin talked with the Lyonses as they worked, and he testified that “[t]hey even cut the posts out of post oak trees you know, and split it. And they sharpened them with an axe.” This is the same fence as shown on the Dumproffs’ 2006 survey and is hereafter referred to as the “1953 fence.”

Following his marriage to Carol, Marvin worked primarily as a cattleman. He observed various individuals running cattle on Rabbit Ranch, usually for about a year at a time; the land was more conducive to hunting than pasturing. The owner of the land to the north of the Dumproff Tract— Cox — ran cattle on his land every year.

Along the north-south fence on the west side of the Dumproff Tract, Marvin replaced an approximately 150-foot section of the 1953 fence after a tree fell on it; otherwise, the original 1953 fence remained in place. Marvin worked on the fence every year to keep it in good repair. Marvin always believed that the 1953 fence was the boundary line around the Dum-proff Tract. Until the 2006 survey was conducted, Marvin intended to claim all of the property on his side of the fence as his own under his deed.

Shortly after purchasing Rabbit Ranch in 1973, Marvin built a barbed-wire cross-fence. The easternmost part of this fence crossed 249 feet of disputed Tract C, the widest part of that tract, and intersected with the 1953 fence on the western portion of the Dumproff eighty. This was done to stop Marvin’s cattle from running onto the Cox property. The other end of the cross-fence connects with the fence from Marvin’s property to the west. Marvin ran his cattle on Rabbit Ranch — on the south side of the cross-fence — from 1974 until approximately 2008. Although he did not pasture his cattle there before his purchase of the Cox property in 1980, Marvin [686]*686“was just sure” that the land north of the cross-fence — and to the west of the 1953 fence — was his property. The segment of land on the northern side of the cross-fence was used for hunting.

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376 S.W.3d 680, 2012 WL 1065849, 2012 Mo. App. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dumproff-v-driskill-moctapp-2012.