Henderson v. Town & Country Grocers of Fredericktown, Missouri, Inc.

978 S.W.2d 850, 1998 Mo. App. LEXIS 2078, 1998 WL 796414
CourtMissouri Court of Appeals
DecidedNovember 18, 1998
DocketNo. 22145
StatusPublished
Cited by5 cases

This text of 978 S.W.2d 850 (Henderson v. Town & Country Grocers of Fredericktown, Missouri, Inc.) 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
Henderson v. Town & Country Grocers of Fredericktown, Missouri, Inc., 978 S.W.2d 850, 1998 Mo. App. LEXIS 2078, 1998 WL 796414 (Mo. Ct. App. 1998).

Opinion

CROW, Judge.

Plaintiff, Rosemary Henderson, claimed ownership of a parcel of land, record title to which was held by one of the four defendants. One of Plaintiffs theories was that she acquired ownership of the parcel by adverse possession. The trial court, hearing the case without a jury, awarded Plaintiff ownership on that theory.

The defendants appeal. Their sole point relied on avers there was no substantial evidence to support three of the five elements of Plaintiffs adverse possession claim.

In reviewing a judge-tried case, an appellate court considers the evidence in the light most favorable to the prevailing party, giving that party the benefit of all reasonable inferences and disregarding the other party’s evidence except as it supports the judgment. Marro v. Daniels, 914 S.W.2d 16, 17[2] (Mo.App. E.D.1995); Morrison v. Jack Simpson Contractor, Inc., 748 S.W.2d 716, 718[3] (Mo.App. E.D.1988).

Plaintiff testified that in 1974 or 1975, she bought a parcel of land in Ironton on which Grant’s Inn — a restaurant — was situated. This opinion henceforth refers to that parcel as “the Grant’s Inn parcel.”

[852]*852Asked whether the sellers showed her the boundaries of the Grant’s Inn parcel, Plaintiff answered: “Yes. We walked what they told me was the property line and checking property along the highway in front of Grant’s known as Main Street to the bridge where Stout Creek is, and basically all around the creek area. Then there was some portion at the very back of the land that they told me went across the creek.”

Upon acquiring the Grant’s Inn parcel, Plaintiff began operating the restaurant. She was still operating it at time of trial, August 13,1997.

In the autumn of 1991, Sid Nickelson, a surveyor, was asked to survey a tract of land abutting the Grant’s Inn parcel. The tract Nickelson was asked to survey was owned by one MeLane and others. This opinion henceforth refers to that tract as “the MeLane tract.”

Nickelson explained that his survey was done because “there was a sale [of the MeLane tract] about to take place.” Nickel-son prepared a plat of his survey, showing the boundaries of the MeLane tract. According to Nickelson: “[I]t is my best ability identifying the property lines based on the record title as best I could be certain of the [MeLane] property at that time.”

Nickelson’s plat was received in evidence at trial as Defendants’ Exhibit C. This opinion henceforth refers to it as “Exhibit C.”

In addition to showing the boundaries of the MeLane tract, Exhibit C shows a building situated north of the MeLane tract. The building is designated on Exhibit C as “Grant’s Inn.” A short distance south of the building, Exhibit C shows a triangular plot of land, the three sides of which measure: 376.20 feet; 361.33 feet; 135.00 feet. The shortest side is the west side. It appears to lie immediately east of, .and abut, Main Street. The longest side begins at the north end of the shortest side and runs southeast. The third side runs back west, from the east end of the longest side to the south end of the shortest side.

On Exhibit C, Nickelson designated the triangular plot as “Tract-2.” It contains .56 acre. Traef>-2 lies entirely within the MeLane tract. The longest side of Tract-2 abuts the southwest boundary of the Grant’s Inn parcel.

Asked why he drew Tract-2 on Exhibit C, Nickelson replied:

“Tract 2 was created as we — since we found the — When we identified the property line, it was in a possible adverse area position. I was instructed to create or write the description for Tract 2 in anticipation of possibly some kind of sale or, you know, try to get it worked out.... Tract 2 was created as a tool to have something in place to try to get that part straightened out.”

By warranty deed dated October 28, 1991, MeLane and the other owners of the MeLane tract conveyed it to “Town & Country Grocer of Fredericktown, Mo., Inc.” 1 The deed described the MeLane tract as two parcels, the second of which was TracL-2.

Plaintiff filed this suit June 7,1994.

Plaintiff went to trial three years later on a two-count first amended petition. Each count averred Plaintiff owned Tract-2 “in fee simple absolute.” Plaintiffs theory in Count II was that she had acquired ownership by adverse possession.

As reported in the first paragraph of this opinion, the trial court found for Plaintiff on the adverse possession theory.2 The judgment declares Plaintiff “is vested with the fee simple title” to Tract-2.3

[853]*853In support of Count II, Plaintiff testified she had a husband when she bought the Grant’s Inn parcel in 1974 or 1975, and the two of them bought it together. The Grant’s Inn parcel was “foreclosed on” in 1981. Plaintiff avowed that her father, Robert Pe-troff, bought the Grant’s Inn parcel at the foreclosure sale.4

During Plaintiffs testimony, her lawyer showed her Exhibit C. This dialogue ensued:

“Q. Now, with regard to this area that’s ... marked on that [exhibit] as being Tract 2. When you purchased the property, was any of Tract 2 being used by Grant’s Inn or by the restaurant in 1974 and ’75?
A. Yes, it was.
Q. And what was it being used as?
A As a parking lot.
Q. Now, you have operated continuously then since 1974 and ’75 the property and restaurant known as Grant’s Inn; is that correct?
A Right.
Q. Even though there was a period of time when the title to the property was in your father’s name and not in your name; is that correct?
A. That is correct.
Q. You still operated the restaurant and were in actual possession of the property?
A. Yes.”

On cross-examination, Plaintiff identified an area she had marked in blue on Exhibit C when her deposition was taken thirteen months before trial. The blue-marked area is partly on the Grant’s Inn parcel and partly on Tract-2. The portion on Traet-2 appears to cover less than one-fifth of Tract-2. Cross-examination continued:

“Q. And the blue marking, as I understand it, is where you indicated the parking lot was at the time that you first purchased this property back in 1974?
A. That’s correct.
Q. So at the time that you and your husband purchased the real estate, the area of the parking lot was just simply the area outlined in blue ink, true?
A. Basically, yes.”

Continuing her chronology, Plaintiff recounted that in 1982 — the year after her father and his wife bought the Grant’s Inn parcel at foreclosure5 — Plaintiff had “chat” hauled onto Tract-2 “to fill in the area that was low and starting to wash away some.” Plaintiff produced an invoice dated April 20, 1982, to her father for 434 tons of “Trap Rock” and 4,740 tons of sand.

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Cite This Page — Counsel Stack

Bluebook (online)
978 S.W.2d 850, 1998 Mo. App. LEXIS 2078, 1998 WL 796414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-town-country-grocers-of-fredericktown-missouri-inc-moctapp-1998.