Kline v. Bourbon Woods, Inc.

684 S.W.2d 938, 1985 Mo. App. LEXIS 3054
CourtMissouri Court of Appeals
DecidedJanuary 22, 1985
Docket48147
StatusPublished
Cited by6 cases

This text of 684 S.W.2d 938 (Kline v. Bourbon Woods, 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
Kline v. Bourbon Woods, Inc., 684 S.W.2d 938, 1985 Mo. App. LEXIS 3054 (Mo. Ct. App. 1985).

Opinion

CRANDALL, Judge.

Plaintiffs appeal from a judgment, entered on a jury verdict, in favor of defendant on plaintiffs’ claim for treble money damages for timber removal, and in favor of defendant on its counterclaim for ejectment.

Plaintiffs allege seven points of error: (1) Instruction No. 10, defendant’s verdict-directing instruction on its counterclaim, should not have been submitted as there was insufficient evidence of adverse possession to support the giving of the instruction; (2) the term “adverse possession” should have been defined for the jury; (3) the term “title” should have been defined for the jury; (4) there was no legal description of the property in Instruction No. 10; (5) the court could not enter a judgment which included a legal description because the jury had not made a finding on such a description; (6) defendant failed to make a submissible case on its counterclaim; and (7) there were indispensable parties not joined in the action. We affirm.

Plaintiffs Raymond Kline, Jr., and his wife Marian Kline acquired Lot 2 of the Northwest Quarter of Section 4 and the South 80 acres of the Northwest Quarter of Section 4, Township 38 North, Range 1 West of the 5th Principal Meridian in Washington County, Missouri, along with other land, in February, 1979. The land is wooded. Mr. Kline noticed some time after the firearms deer season of November, 1980, that timber had been cut from what he believed to be his property.

The trees had been cut at the direction of Bourbon Woods, Inc., a corporation made up of members of the Kreikemeier family. The corporation owned land in Section 5 adjacent to and immediately west of the Klines’ property.

The Klines filed suit claiming damages for the trees which had been cut. Bourbon Woods filed a counterclaim and alleged at trial it was the owner of the land where the trees had been cut, either by title or adverse possession.

The dispute, then, centers around the boundary line between the property owned by the Klines and the Bourbon Woods property. If the boundary is where Bourbon Woods claims, then plaintiffs have no cause of action for damages.

The jury found for the defendant on plaintiffs’ claim for damages and for defendant on its counterclaim, finding it had a superior right to possession of the property where the trees were cut.

The bulk of the evidence at trial consisted of expert testimony by surveyors. Plaintiffs’ expert testified that the boundary line of the property was at a point approximately 335 feet west of the boundary claimed by defendant’s expert. This 335 foot-wide strip is the land in dispute.

Plaintiffs first claim error in the giving of Instruction No. 10, because of insufficient evidence of adverse possession. The instruction is as follows:

Your verdict must be for Defendant or [sic] Defendant’s Counterclaim if your [sic] believe:
First, Plaintiff was in or claimed possession of the premises claimed by Defendant when the action was commenced, and
Second, Defendant had the right to possession of the premises on that date by reason of Defendant’s title or by rea *940 son of open and adverse possession under claim of title for more than 10 years prior to Plaintiffs’ suit.

The second paragraph of this instruction hypothesizes recovery by the defendant in the disjunctive, i.e., title or adverse possession. “It is well settled that each element of an instruction phrased in the disjunctive must be supported by substantial evidence.” McCoy v. Hershey Chocolate Co., 655 S.W.2d 128, 180 (Mo.App.1983).

To support an adverse possession claim, “(1) the possession must be hostile and under claim of right; (2) possession must be actual; (3) possession must be open and notorious; (4) possession must be exclusive; and (5) possession must be continuous for the requisite period.” Lacy v. Schmitz, 639 S.W.2d 96, 99 (Mo.App.1982).

Defendant’s evidence was that Mr. Kreikemeier purchased the land in Section 5 to fulfill a dream of having a place in the woods where the family could get together. Mr. Kreikemeier’s son testified: “All of us in the family through that period spent all of our excess time down there.” Then this exchange took place:

Q. In 1965 until 1979, can you tell me what use the family made of the property?
A. The use has been pretty intense in terms of what it was bought for, and that was a gathering place for the family, an awful lot of hiking, hunting. We have a jeep down there that we use to run around. The kids, particularly my children spend hours running around, hiking, shooting, whatever.
Q. Did you use the property up to this blazed line that you spoke of?
A. Yes.

This was enough to make a submis-sible case of adverse possession, supporting the giving of Instruction 10. Plaintiffs claim there was no evidence of the third element of adverse possession, that it be open and notorious. We disagree. The nature of this land, which was rough and wooded, must be taken into account. Teson v. Vasquez, 561 S.W.2d 119, 125 (Mo. App.1977). “The possession must be as notorious as the nature of the land will permit.” 2 C.J.S. Adverse Possession § 49, at 714 (1972). The open and notorious requirement can be met by showing actual knowledge of the owner, which was not shown here except for the single act of cutting the trees. “If actual knowledge is not proved then the claimant must show an occupancy so obvious and well recognized as to be inconsistent with and injurious to the real owner’s rights that the law will authorize a presumption from the facts that he had such knowledge.” Teson, 561 S.W.2d at 127. Knowledge or notice in such cases has been held to mean knowledge of all that would be learned by reasonable inquiry. Johnson v. Moore, 346 Mo. 854, 143 S.W.2d 254, 256 (1940). This requirement was met by the evidence of the use made by the Kreikemeier family. Plaintiffs’ first point is denied.

Plaintiffs’ next two points allege error in Instruction 10 in that the terms “adverse possession” and “title” were not defined. It has been stated that “a trial court must define for the jury legal or technical terms occurring in the instructions.” Brock v. Firemens Fund of America Ins. Co., 637 S.W.2d 824, 827 (Mo.App.1982). “Probably the better solution of the problem would be to hypothesize facts which constitute the elements [of the cause of action] and thus avoid use of the term.” Wright v. Edison, 619 S.W.2d 797, 802 (Mo.App.1981).

In Wright the court, in dictum, stated that the term “trespass” has a technical legal meaning and if used in an instruction should be defined.

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Bluebook (online)
684 S.W.2d 938, 1985 Mo. App. LEXIS 3054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kline-v-bourbon-woods-inc-moctapp-1985.