Payne v. Payne

728 S.W.2d 635, 1987 Mo. App. LEXIS 3807
CourtMissouri Court of Appeals
DecidedMarch 19, 1987
DocketNos. 14582, 14589
StatusPublished
Cited by8 cases

This text of 728 S.W.2d 635 (Payne v. Payne) 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
Payne v. Payne, 728 S.W.2d 635, 1987 Mo. App. LEXIS 3807 (Mo. Ct. App. 1987).

Opinion

HOGAN, Presiding Judge.

These cross-appeals are before the court for a second time. See Payne v. Payne, 695 S.W.2d 494 (Mo.App.1985). When the appeals were first submitted we concluded the judgment was ineffective as a final judgment. The appeals were dismissed. The trial court’s findings have been amended and the appeals are again before us. Unfortunately, an extended and somewhat repetitious statement of the facts is necessary to an understanding of the controversy and our resolution of the questions presented. In an effort to make the controversy and the opinion coherent, we have appended a crude sketch of the realty involved.

The appeals arose out of an unfortunate feud between relatives over two small strips of land — described as the “east” strip and the “north” strip which, taken together, constitute less than 1 acre of land located in Wayne County. Plaintiffs John and Yirgie Payne were the record owners of a parcel of land — Tract “A” — which contained about 40 acres. The record descrip[637]*637tion of Tract “A” shows a pair of intersecting quarter-quarter section lines as the north and east boundaries of plaintiffs’ property. The original defendants in this action were two brothers, Gary and Walter Payne, nephews of plaintiff John Payne. Gary’s wife Gina was joined as a party after the suit was filed pursuant to Rule 52.04. Gary and Gina Payne (hereinafter defendants) own the land which adjoins Tract “A” on the north and east. The record boundaries of their property are the same quarter-quarter section lines which mark the east and north boundaries of the plaintiffs’ land. In one of several prior suits in which the parties were involved— referred to in the record as the “1981” suit — the plaintiffs made claim to a small strip of land — Tract “D” — which lies east of their property. The Wayne County Circuit Court ruled against the plaintiffs and found, inter alia, that Gary and Gina Payne were record fee simple owners of Tract “D.” The decree was offered and received as plaintiffs’ Exhibit 6. It is dated September 29, 1981.

The action at hand was commenced very shortly after the 1981 action was decided. Plaintiffs filed suit alleging that defendants Gary and Walter Payne had entered upon their land without consent and had removed or destroyed some fencing and some survey markers. Prayer of the petition was for actual and punitive damages and for injunctive relief.

The named defendants filed an answer, and later, defendants Gary and Gina Payne filed a counterclaim. Prior to trial the counterclaim was repeatedly amended and eventually stated five counts.1 Count I of the amended counterclaim was dismissed. In Count II, defendants Gary and Gina Payne claimed title to the “east” strip by adverse possession and on the ground of estoppel by judgment and collateral estop-pel, averring that the issue of title to the “east” strip had been adjudicated in the 1981 action. Count III was for damages for removal of a “historic” fence which marked the western boundary of the “east” strip.

In Count IV of their counterclaim, defendants sought damages for removal of a “historic” fence which marked the southern boundary of the “north” strip and damages for entry upon that land. In Count V, defendants claimed title to the “north” strip by adverse possession.

The case we now consider was commenced in 1981 and finally came on for trial in 1984. Oral and documentary evidence received established the existence of old fences (referred to as “historic” fences) located slightly inside the northern and eastern record boundaries of plaintiffs’ land. The distance between the record boundaries and the “historic” fences ranged from 6 to 15 feet. These spaces, distances or intervals, which we have shown as shaded areas on the sketch, constitute the “east” and “north” strip.

There was evidence that the “historic” fence on the east had been erected between 1945 and 1948. Plaintiffs’ son Doyle, testifying in 1984, testified “it was put there somewhere around ’45, ’47, ’48. Right after we moved there.” Cortez Hedge, one of the defendants’ predecessors in title, testified that the fence was “about twelve feet” inside the record boundary. Mr. Hedge purchased the property to the east of Tract “A” in 1945. The “historic” fence on the north was considerably older. Raleigh Payne, John’s brother, testified that “me and my oldest brother put it up ... in 1930.” The location of the “historic” fences is not in issue.

These fences were removed after the 1981 suit was tried. Plaintiffs’ son Doyle testified that he removed the old fences and erected new ones on the plaintiffs’ northern and eastern boundaries of record in October or November of 1982.

To state the trial court’s findings briefly, it denied plaintiffs injunctive relief and punitive damages, but awarded plaintiffs actual damages in the amount of $220. The court found against defendants on Counts [638]*638II and III of their counterclaim, concluding that they had failed to establish exclusive possession to the “east” strip, and consequently had no right to damages for removal of the “historic” fence on the east.

The court found for defendants Gary and Gina Payne on Counts IV and V of their counterclaim. It concluded that they had established title by adverse possession to the "north” strip and were therefore entitled to damages for loss of use of the “north” strip from the time the plaintiffs removed the old fence and erected a new fence on the record boundary.

Appeal No. 14582 is plaintiffs’ appeal. Plaintiffs contend that the trial court erred in finding that defendants Gary and Gina Payne acquired title to the "north” strip by adverse possession on the ground that the finding is “not supported by substantial and sufficient evidence.” Plaintiffs also maintain that the award of damages in connection with the north strip was erroneous.

Appeal No. 14589 is defendants’ appeal. They contend that the court erred in not finding them to be record title holders to the “east” strip and in failing to award damages for removal of the “historic” fence because the judgment was against the weight of the evidence. It is also asserted on this appeal that the trial court erred in granting judgment for the plaintiffs because that finding is against the weight of the evidence. It is convenient to consider the various contentions topically.

I

The “East” Strip

In connection with the “east” strip and the trial court’s finding that defendants Gary and Gina Payne failed to prove title by adverse possession, it is important to bear in mind that in a bench-tried case, a correct decision will not be disturbed because the trial court gave a wrong or insufficient reason therefor. Edgar v. Fitzpatrick, 377 S.W.2d 314, 318[12] (Mo.banc 1964); Reed v. Foulks, 675 S.W.2d 695, 697-98 (Mo.App.1984); Lancaster v. Simmons, 621 S.W.2d 935, 942[9] (Mo.App.1981). The defendants themselves advance the contention that the parties fully litigated defendants’ claim to the “east” strip in the 1981 action. We agree, but we do not reach the same conclusion as defendants concerning the effect of the prior adjudication.

The title to Tract “D” was put in issue in the 1981 action.

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Bluebook (online)
728 S.W.2d 635, 1987 Mo. App. LEXIS 3807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-v-payne-moctapp-1987.