Lollar v. Maness

765 S.W.2d 695, 1989 Mo. App. LEXIS 229, 1989 WL 13424
CourtMissouri Court of Appeals
DecidedFebruary 21, 1989
DocketNo. 53532
StatusPublished
Cited by3 cases

This text of 765 S.W.2d 695 (Lollar v. Maness) 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
Lollar v. Maness, 765 S.W.2d 695, 1989 Mo. App. LEXIS 229, 1989 WL 13424 (Mo. Ct. App. 1989).

Opinion

GRIMM, Presiding Judge.

In this bench-tried action, defendants appeal from the trial court’s judgment awarding plaintiff damages for the destruction of a fence and quieting title in plaintiff to property west of that fence. We affirm and remand.

Defendants raise three allegations of error. First, the trial court erred in quieting title in plaintiff, because this was an action to determine a boundary line and quieting title was an inappropriate remedy. We disagree, because defendants’ denial of plaintiff's claim created a title controversy, and quiet title was an appropriate remedy. Second, the trial court erred in quieting title in plaintiff, because plaintiff failed to prove an unequivocal claim of right as an adverse possessor. We disagree, because we defer to the trial court’s resolution of conflicting evidence, and there was substantial evidence to support the court’s judgment. Third, the trial court’s judgment describing the affected property is so indefinite as to be void and unenforceable. We disagree, because the description is determinable.

Plaintiff purchased the Southwest quarter of the Southwest quarter of Section 25, Township 31 North, Range Six East on January 9, 1975.

Plaintiff’s land is immediately west of defendants’; defendants purchased their property in 1971. Their deed contains this description:

The Southeast quarter of the Southwest quarter of Section Twenty-Five (25) in Township Thirty-one (31) North of Range Six (6) East, containing Forty (40) acres, more or less. The land conveyed by this deed is bounded as follows, to-wit: On the West by land of William Stevens; on the South by land of William Stevens, on the East by land of Chas. Gipson and on the North by land of the parties of the First Part, containing 40 acres, more or less. Being the same real estate conveyed by Warranty Deed from Christopher Gipson and Nervy Gipson, husband [697]*697and wife to Walter Gipson (subject to the life estate of Christopher Gipson and Nervy Gipson, and the said Christopher Gipson and Nervy Gipson are now both deceased) which is recorded in Book 62 at Page 465 of the Madison County, Missouri Deed Records. (Emphasis added).

Defendants’ west line was bounded by the “land of William Stevens.” Stevens purchased his land from Letha Skaggs’ father a number of years after 1942.

Letha Skaggs was born on her father’s property in May, 1924, and lived there until December, 1942. She recalled that two fence lines ran north and south on the eastern side of that tract. Skaggs’ father told her many times that the fence furthest east marked the boundary between his tract and the tract of land now owned by defendants. The other fence was set on her father’s land, and Skaggs’ father made a roadway between the two fence lines. He also used the property immediately west of the “boundary fence” for farming and haying. This “boundary fence” was “pretty close” to where the pipeline is now located.

The Skaggs-Stevens land, now owned by plaintiff, was purchased in 1973 by Bud Adams. When Adams purchased the property, his immediate predecessor in title pointed out a rusty “old hog wire, old barb wire fence” as the boundary line between that property and the property to the east owned by defendants. This “boundary fence” was fifteen to twenty feet west of a pipeline running north to south on defendants’ tract. A second fence existed on Adams’ property, “seventy-five to a hundred feet” west of this “boundary fence.” Adams grew potatoes between these two fence lines as his predecessor had done. Defendants’ property east of the “boundary fence” was “[grown] up in brush.”

Adams sold this tract of land to plaintiff in 1975. At that time, he showed plaintiff the “boundary fence” and told him it was the property line between plaintiff and defendants. After selling it to plaintiff, Adams disked the land, including the area immediately west of the “boundary fence,” for plaintiff. Adams observed a new fence being put up in the same location as the old “boundary fence.”

Plaintiff had the property surveyed in 1975, while a crew of workers were constructing new fences on plaintiff’s property. The surveyor told plaintiff that the old fence, which Adams had identified as the boundary line, appeared to have been there for many years.

Plaintiff’s new fence, constructed in 1975, was approximately one-quarter mile long and “was put up in the same location” as the prior, old “boundary fence.” In 1981, defendant Jack Maness told plaintiff that he did not think the fence marked the boundary line; and he wanted it removed. Plaintiff replied that he believed the fence correctly marked the boundary. Plaintiff warned him not to remove it without a court order.

In April, 1981, surveyor Stanley Layton, at defendants’ request, surveyed defendants’ land to determine defendants’ boundary lines. Using government markers, Layton located the southeast quarter of the southwest quarter of section twenty-five in township thirty-one north of range six. He platted this as defendants’ property. Layton did not attempt to determine the west line as that “bounded ... by land of William Stevens.” In 1984, without notice to plaintiff, defendants tore down the fence.

Plaintiff sued for damages resulting from the destruction of the fence and for quiet title to the property west of that fence line. Following a bench trial, the trial court found that the fence “is the long established boundary line between the parties and that Plaintiff and his predecessors in title have had adverse possession of the property for over 60 years.” The trial court awarded plaintiff $750.00 for the destruction of the fence, and quieted title to the property west of the fence line in plaintiff.

In their first point, defendants maintain that the trial court erred in quieting title in plaintiff. They contend that “this action was not a title controversy but rather an action to determine a boundary [698]*698line because each party acknowledged the title source and legal description of the other’s ownership.” Defendants assert that quieting title in plaintiff was, thus, inappropriate.

Defendants rely on the following language in Roberts v. Harms, 627 S.W.2d 924 (Mo.App.W.D.1982):

A dispute in which each owner admits the title of the other but disagrees as to the physical location of the boundary is not a title controversy. The appropriate action for determination of a boundary line is a suit in ejectment.

Id. at 926-927. Defendants’ reliance on Roberts, however, is misplaced.

The Roberts court noted that “[djespite the caption of the case as a quiet title suit, the petition allegations framed no such case because each party acknowledged the title source and legal description of the other’s ownership.” Id. at 926. In the case before us there was no such mutual acknowledgement. Plaintiff alleged that he had title to his quarter/quarter section. Defendant specifically denied this allegation. Also, at trial, defendants contested plaintiff’s evidence that he had acquired the property through adverse possession. Thus, a title controversy existed; and the quiet title action was appropriate. See A. Charles Bussen Trust v. Kertz, 723 S.W.2d 922, 927 (Mo.App.E.D.1987).

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Cite This Page — Counsel Stack

Bluebook (online)
765 S.W.2d 695, 1989 Mo. App. LEXIS 229, 1989 WL 13424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lollar-v-maness-moctapp-1989.