John v. Turner

542 S.W.2d 293
CourtMissouri Court of Appeals
DecidedAugust 30, 1976
DocketNos. KCD 27229, KCD 27373
StatusPublished
Cited by8 cases

This text of 542 S.W.2d 293 (John v. Turner) 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
John v. Turner, 542 S.W.2d 293 (Mo. Ct. App. 1976).

Opinion

ANDREW JACKSON HIGGINS, Special Judge.

Action by Hurst John to quiet title to 80 acres of real estate, encompassing tracts designated in evidence as “Tract A” and “Tract B.” Title was quieted in favor of plaintiff against all defendants except to Tract A which was quieted in the County Court of Boone County. Appeal (27,229) by Hurst John from that part of the judgment quieting title to Tract A in the county court, combined with appeal (27,323) by Carl and Nancy Almond from that part of the judgment denying their claim of title to Tract B. Title to the 80 acres is not otherwise in dispute. In 27,229 the questions are whether the court erred in denying Hurst John’s claim of title to Tract A by adverse possession; whether the county court acquired any interest in Tract A; if so, whether such interest was abandoned; whether the decree affecting Tract A is void for vagueness and beyond the pleadings; and whether the county court was estopped to claim any interest in Tract A. In 27,323 the question is whether the court erred in granting Hurst John’s claim of title to Tract B by adverse possession. Affirmed.

Plaintiff Hurst John alleged he was the owner of and sought to quiet the title in himself to certain land in Boone County:

[295]*295Eighty (80) acres, the East half of the Northwest Quarter of Section 29, Township 47 North, Range 12 West.

Defendant County Court of Boone County alleged it was the owner of and sought to quiet title in itself to a portion of the 80 acres claimed by Hurst John, designated in evidence as “Tract A”:

One half (½) acre of ground lying North of the County road and on which Tumbling Spring is located which land is situated in the Southeast corner of the Northwest Quarter of Section 29, Township 47 North, Range 12 West.

Defendants Almond alleged they were the owners of and sought to quiet title in themselves to a portion of the 80 acres claimed by Hurst John, designated in evidence as “Tract B”:

All that portion of the Northeast Quarter of the Northwest Quarter of Section Twenty-nine (29); Township Forty-seven (47) and Range Twelve (12) lying North and West of a certain creek in a Southwesterly direction through said Northeast Quarter of said Northwest Quarter of said Section 29.

Prior to February 15,1893, Howard Turner was the owner of certain land in Boone County:

Forty acres, the Northeast Quarter of the Northwest Quarter of Section Twenty-nine all in Township Forty-seven (47) Range Twelve (12).

Mr. Turner’s 40 acres comprises the north half of the 80 acres claimed by Hurst John and encompasses Tract A. On February 15, 1893, Howard Turner and Mary Louise Turner, his wife, conveyed by warranty deed to Henry Turner, “party of the second part”:

Forty acres more or less the Northeast Quarter of the Northwest Quarter of Section Twenty-nine, Township Forty-seven (47) and Range Twelve (12) except what is hereinafter reserved viz: One half of one acre more or less of said above described premises situated in the Southeast corner thereof and includes and takes in a certain large spring situated at said point and will at all times keep and maintain a good and substantial fence one half way around said spring and the said party of the second part hereby binds himself and assigns forever to keep and maintain a good and substantial fence around the other half of said spring.

On January 5, 1937, title to the entire 80 acres was quieted in O. R. Johnson against Martha Turner and others; Howard Turner was not a party to the action.

On March 11, 1940, O. R. Johnson and Ruth P. Johnson, his wife, by warranty deed to Hurst John conveyed the 80 acres, “Reserving the right of ingress and egress to a spring located in the north part of said tract as originally reserved in a deed from Howard Turner and Mary Louise Turner, his wife, to Henry Turner, dated February 10, 1893.” The quoted reservation was also made by Mr. John in his deed of trust of the same date.

On March 11, 1941, Howard Turner executed a will which provided for a life estate in his wife, Mary Louise Turner, and certain remainders, one of which provided:

I give and bequeath One Half (½) acre of Ground lying North of the County Road and on which Tumbling Spring is located to the County Court of Boone County, in trust and never to be sold and to be used by the Public under the County Court’s supervision.

On September 28, 1945, Howard Turner died. His will was admitted to probate. An “Inventory, Appraisements and Affidavits” was filed by the administrator with will annexed, which included certain real estate, none of which is in question in this suit. Mary Louise Turner died January 11, 1946.

Murry E. Glascock, County Clerk of Boone County, searched records of the county court from 1944 to 1951 and found no acceptance or rejection of a devise of land from Howard Turner, no resolution pertaining to the spring, and no records indicating supervision or dominion over Tumbling Spring.

[296]*296With respect to Tract A, plaintiff testified: After he purchased the 80 acres in 1940, the old county road which ran across the 80 acres in a southeasterly-northwesterly direction was not traveled by the public, and he secured permission from the county court to place signs at each end advising the road was not passable. There was also a private road from the county road to the spring area. In 1949 he corresponded with James A. Turner, son of Howard and Mary Louise Turner, to suggest that a bronze plaque be placed near the spring as a memorial to Mr. and Mrs. Turner. The letter described the suggested memorial, stated the need of pictures, and concluded, “Then I would give this to the County Court for consideration.” In taking title to the 80 acres, he knew of the reservation of the spring and, in 1949, he was aware of Howard Turner’s devise to the county court of the spring and surrounding one-half acre. Between 1949 and 1953, he asked the county court about its intentions with respect to the spring property, after which he commenced certain improvements. In 1953 he took care of the spring property; the county court had done nothing about it. He cleared the spring area of underbrush and trash. He fenced the “toasters,” a pair of deep vertical slots in the ground, each 30 to 40 feet long, 4 to 5 feet wide, about 6 feet apart, between which the spring could be observed, and did other fencing in 1953. He leased the 80 acres to Jim Cunningham for farming in the early years, Mr. Tusler for pasture in 1953, and to the Peace Corps as a training site in the early 1960’s. He grazed the land in other years prior to 1953 and since 1953, except for the lease to the Peace Corps. .In 1954, he had the valley area surveyed in preparation for plans to utilize the spring water for diversion into commercial fish ponds. In that year he built a pond or “lake” some seventy-fiye feet below the outlet of the spring. A gate was put across the county road at his property line on the east with a “no trespassing” sign on it. About a hundred similar signs were placed elsewhere on the farm. He did not allow anyone to use the property without his permission. In the late 1950’s he cut timber off the spring area two or three times. During the 1950’s the public did not come to the area, and he and his family used it for picnics and recreation, which included horseback riding. In 1968 he built a cabin near the spring which his son used during summer months.

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Bluebook (online)
542 S.W.2d 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-v-turner-moctapp-1976.