NOT DESIGNATED FOR PUBLICATION
No. 129,293
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DONALD S. QUEAL, et al.,
Appellees,
v.
RONALD J. LOFTUS and PATRICIA LYNN LOFTUS LIVING TRUST, Appellants.
MEMORANDUM OPINION
Appeal from Barber District Court; FRANCIS E. MEISENHEIMER, judge. Oral argument held May 12, 2026. Opinion filed August 28, 2026. Affirmed.
Hannah L. Molz, of Medicine Lodge, for appellants.
Alan C. Goering, of Goering & Slinkard, of Medicine Lodge, for appellee.
Before HILL, P.J., ARNOLD-BURGER, J., and ANDREA PURVIS, District Judge, assigned.
ARNOLD-BURGER, J: Sometimes the most difficult disputes are not born of malice, but of history. More than six decades ago, neighbors erected a fence with little reason to suspect it would one day become the subject of litigation. The fence followed the practical realities of the landscape, with a recognition of the construction methods available at the time rather than the invisible precision of a legal boundary. Sixty-five years later, what was once a practical solution became a legal controversy.
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We are asked to decide whether the district court was correct when it ruled in favor of Don Queal, Donna Hoener-Queal, and Dan Hittle (collectively Queal) that the boundary between their properties and the property of Ron Loftus and Patricia Lynn Loftus (collectively Loftus) was the section line and not the existing meandering and irregular fence line. After a thorough review, we find that the district court's decision granting quiet title to the disputed land to Queal was supported by substantial competent evidence. In addition, we find that the district court's decision that Loftus failed to establish by clear and convincing evidence that they acquired the disputed property by adverse possession was also supported by substantial competent evidence, free of bias, passion, or prejudice. Accordingly, we affirm the district court's decision.
FACTUAL AND PROCEDURAL HISTORY
The essential facts of this case are not in dispute. Dan Hittle owns certain real property in Barber County. The property is located in Section 23, Township 30 South, Range 13 West. It is part of a larger tract of land that was previously owned by Hittle's great grandfather and has been passed down or sold within the family.
The property has a fence on the east side of the tract that does not exactly follow the property or section line. In the 1950s, when Hittle was approximately 14 years old, he had a conversation with his grandfather and his father about the fence. His grandfather told him that at the time the fence was constructed, there was an agreement between the previous property owners to build the fence off the property line. Because of the inferiority of the tools available at the time, it would have been too labor intensive to put a fence on the property line due to the terrain. At that time, all the post holes had to be hand dug. All the posts had to be cut. And two men with a row of barbed wire had to walk the entire line, several times, rolling the wire out. The section line goes through a bog, terraces that keep water from going into a hay field, a creek, a steep 20-to-30-foot cliff, and very large trees. So, the simplest, most convenient, and cheapest thing to do was
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run the fence off of the property line on a path that could best accommodate both the boundary and the terrain.
From time to time, Hittle's father and grandfather would repair and replace sections of the fence as needed. Hittle's father stated that if they ever built "a new fence," they would put the fence on the property line. Hittle believed that with modern equipment a new fence could be built on the property line today. Hittle described the fence as a "fence of convenience."
In 2002, Loftus purchased the land immediately to the east of Hittle's property located in Section 24, Township 30 South, Range 13 West. They bought the property while living in Colorado. They drove by the property but did not drive on the property or obtain a survey before buying it. Loftus runs a cattle operation. The fence discussed above was still located on the west side of the property, adjacent to the Hittle property, when they bought it. At one point along its misshaped path, there is an area approximately 5.13 acres between the fence and the section line. It is in a triangle shape and is at the center of this controversy because Loftus uses those acres for agricultural purposes. Loftus has repaired the fence as needed since 2002.
Around 2014, Ron Loftus rebuilt a section of the fence by the creek. Hittle observed this and spoke to Ron. Hittle did not alert Ron at that time that he wanted to eventually move the fence line to the property line because he believed just rebuilding a section of the fence would not involve moving the entire fence line. So neither moving the fence nor the boundary line were discussed in that conversation.
Approximately 20 years after Loftus bought their section, Don Queal and Donna Hoener-Queal purchased part of the Hittle family section from Dan Hittle. The property is immediately to the north of property that was retained by Hittle and immediately to the
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west of the Loftus' property. Don and Donna also obtained a lease to the Hittle's property, which continued to border the Loftus' property on the west.
Prior to Don and Donna's purchase of the property, Hittle and Ron Loftus had no conversations about the location of the fence or Hittle's belief that the fence was not the boundary line between the Hittle and Loftus properties.
Now that the parties are established, we have included a visual depiction of the fence line. The green line represents the fence. The red line represents the section line.
After Don purchased the land, he surveyed the fence to see if it was in shape for cattle. Don asked Hittle why there was a jog in the fence. Hittle told Don that the fence was not the property line. Don then began discussions with Ron about moving the fence to the boundary line. Don told Ron that if putting in a new fence, it made no sense not to put it on the property line.
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Don and Ron discussed rebuilding the fence, but they did not come to an agreement on fence location. In one conversation, Ron offered to buy the land from Don rather than move the fence. Don rejected the offer. Ron wanted to keep at least the northern portion of the fence where it was. After that conversation, Don believed there was an agreement to begin clearing the trees on the section line. Don tore out the fence and cleared the trees along the boundary line for about 400 yards heading from south to north. He hired someone to start building the new fence. Ron observed the tree clearing and was happy to see the trees removed. Ron went on vacation while the work was being done. When he returned, he said the fence needed to be put back where it was. He claimed adverse possession. The work then stopped.
In 2023, Queal and Hittle (again, collectively Queal) sued Loftus for quiet title to their properties as described in their deeds. Loftus responded with a counterclaim of adverse possession.
A bench trial was held. The court heard the evidence and visited the property.
Originally, Ron Loftus testified that he learned of the jog in the fence shortly after purchasing the property. Later when confronted with his deposition testimony, he changed his testimony and claimed that it was not until five to seven years before this suit was filed that he became aware of a jog in the fence.
Lynn Loftus testified she was not aware the fence was not on their property line until sometime after the Don and Donna Queal purchased their property in the fall of 2021. She did not know about the jog in the fence until "[j]ust recently."
Loftus argued that the parties' predecessors in interest determined the boundary line between themselves when they established the fence at that location and possessed separate tracts in accordance with that agreed boundary line. Alternatively, Loftus argued that they owned the disputed land by adverse possession because they possessed the land
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openly, exclusively, and continuously under a reasonable belief of ownership for a period of more than 15 years.
The district court ruled that the evidence was insufficient to establish a prior agreement fixing the boundary line at the location of the original fence line. Hittle's undisputed testimony indicated the fence was simply a barrier fence erected for the convenience of the parties to lower construction costs because of a lack of equipment at the time that the fence was built. That testimony was supported by a review of the terrain. North of the 90-degree jog there are hills, a spring/bog, and a creek. The court ruled it was logical and obvious that the fence was moved from the section line to avoid these problems and the increased construction costs.
The district court further ruled the evidence was insufficient to establish that Loftus obtained ownership of the disputed land by adverse possession. The court found that although Loftus asserted a good-faith belief of ownership, that belief was not objectively reasonable. The 90-degree jog in the fence line and the angles further north to the northwest and the northeast around Elm Creek placed them on notice that the fence was not on the section line. The court granted Queal's petition for quiet title and denied Loftus' counterclaim of adverse possession.
ANALYSIS
Substantial competent evidence supports the district court's ruling that no mutual agreement existed between the parties to permanently fix the boundary between the properties at the fence line rather than section line designated in the deed.
The law, the burden of proof, and the standard of review lay the foundation for our decision.
The long-standing rule in property law is that the boundary line between adjacent properties is determined by reference to the description in the deed. Fritzler v. Dumler,
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209 Kan. 16, 21, 495 P.2d 1027 (1972). However, when parties "by mutual agreement fix a boundary line between their properties, acquiesce in the line so fixed and thereafter occupy their properties according to the line agreed upon," the line becomes the true dividing line between the properties, even though a subsequent survey may find a different boundary line. Moore v. Bayless, 215 Kan. 297, 300, 524 P.2d 721 (1974). Acquiescence means consent to the conditions and knowledge of them. Fritzler, 209 Kan. at 22. In other words, there must be a dispute about the boundary line and an agreement to resolve it. Martin v. Hinnen, 3 Kan. App. 2d 106, 110-11, 590 P.2d 589 (1979). The agreement may be express or implied. Fritzler, 209 Kan. at 22-23. The agreement may be established by circumstantial evidence. Fyler v. Hartness, 171 Kan. 49, 54, 229 P.2d 751 (1951).
Stated another way, whether a fence constitutes a boundary depends on whether the parties intended the fence to establish the boundary and not serve as a mere barrier. A fence may be maintained between adjoining lands for convenience only, and without the intention of thereby fixing a boundary. In such case mere acquiescence to the fence by adjoining landowners does not constitute proof that the fence is the accepted boundary line. Whether a fence is a boundary fence or merely one of convenience is a question of fact. 82 Am. Jur. 3d Proof of Facts 227 § 16.
Here, as in all quiet title actions, Queal, as the plaintiffs, have the burden of proof to show superior title. Beams v. Werth, 200 Kan. 532, 544, 438 P.2d 957 (1968).
This court reviews the district court's factual findings for substantial competent evidence. See Mahlandt v. Jabes, 232 Kan. 435, 443-44, 658 P.2d 356 (1983). Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. Granados v. Wilson, 317 Kan. 34, 41, 523 P.3d 501 (2023). We do not weigh conflicting evidence, pass on the
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credibility of witnesses, or redetermine questions of fact. Landrum v. Taylor, 217 Kan. 113, 117, 535 P.2d 406 (1975).
Loftus failed to preserve their new argument on appeal that there was an implied agreement between Loftus and Hittle establishing the fence line as the boundary line.
Generally, issues not raised before the district court cannot be raised on appeal.
See In re N.E., 316 Kan. 391, 407, 516 P.3d 586 (2022). There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, but Supreme Court Rule 6.02(a)(5) (2026 Kan. S. Ct. R. at 36) requires an appellant to explain why an issue that was not raised before the district court should be considered for the first time on appeal. This rule is strictly enforced. State v. Holley, 315 Kan. 512, 524, 509 P.3d 542 (2022).
To the district court, Loftus argued that there was an agreement that fixed the boundary line at the fence line.
"The parties to this action, or their predecessors in interest, determined the boundary line between themselves sometime prior to 1960, established a fence on that location, and possessed separate tracts in accordance with that agreed boundary line. Ownership was determined by the agreement and establishment of a physical line." (Emphasis added.)
On appeal, Loftus abandons this argument. In fact, they concede that the original parties established or maintained the fence for the sake of convenience, without the intention of thereby fixing boundaries. Instead, they make a new claim that Dan Hittle and Ron Loftus had an implied agreement by silence made in 2014 when Hittle observed Ron repairing part of the fence. This argument was not raised in Loftus' pretrial questionnaire which was later adopted in full in the court's pretrial order. It was not addressed by the district court in its memorandum decision—because it was never raised.
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Loftus fails to set out in their brief why we should consider this newly minted claim for the first time on appeal. Because this rule is to be strictly enforced, we will not consider this new claim.
Substantial competent evidence supports the district court's ruling granting quiet title to Queal.
Substantial competent evidence supports the district court's ruling that no mutual agreement existed between the parties. As noted above, Loftus concedes on appeal that the original parties established or maintained the fence for the sake of convenience, without the intention of thereby fixing boundaries. This is consistent with the district court's finding that Hittle's testimony regarding the conversations with his grandfather were undisputed. The objective evidence presented also supported a finding by the district court that the terrain and odd shape of the fence gave credence to the claim that the fence was placed as it was due to convenience at that time in history, not a mutual agreement to change the legal boundary.
The district court did not err by finding Loftus did not adversely possess the disputed land.
The law, the burden of proof, and the standard of review lay the foundation for our decision.
The requirements to establish ownership of land through adverse possession is defined by law.
"No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years." K.SA. 60-503.
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A party claiming title by adverse possession must prove the statutory requirements by clear and convincing evidence, which means evidence that is sufficient to establish the truth of the facts is highly probable. Ruhland v. Elliott, 302 Kan. 405, 410, 353 P.3d 1124 (2015). Adverse possession may not be established through inference. Every presumption goes to the holder of legal title to the property. Ruhland, 302 Kan. at 411.
A "belief of ownership" under K.S.A. 60-503 must be in good faith and reasonable under all the facts and circumstances. Chesbro v. Board of Douglas County Comm'rs, 39 Kan. App. 2d 954, 961, 186 P.3d 829 (2008); Akers v. Allaire, 17 Kan. App. 2d 556, 558, 840 P.2d 547 (1992).
Constructive notice of a defect in the title does not impeach the good faith of the claimant because there is no duty to examine the title. Armstrong v. Cities Service Gas Co., 210 Kan. 298, 311, 502 P.2d 672 (1972).
Whether a party's belief of ownership is in good faith is a question of fact. 210 Kan. at 311-12. Likewise, whether a party has acquired title to real property by adverse possession is a question of fact. This court reviews the district court's factual findings for substantial competent evidence.
When the district court finds that a party did not meet its burden of proof, it is a negative factual finding. In reviewing negative findings, this court determines whether the district court arbitrarily disregarded undisputed evidence or relied upon an extrinsic consideration—such as bias, passion, or prejudice—in reaching its decision. MFA Enterprises, Inc. v. Delange, 50 Kan. App. 2d 1049, 1055-56, 336 P.3d 891 (2014).
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Loftus failed to preserve their new argument on appeal that they satisfied the 15- year statutory requirement for adverse possession through a combination of a belief in ownership and a claim knowingly adverse to the holder of the deed.
Again, issues not raised before the district court cannot be raised on appeal. See In re N.E., 316 Kan. at 407. Loftus is required to explain why an issue that was not raised in the district court should be considered for the first time on appeal and this rule is to be strictly enforced. State v. Holley, 315 Kan. at 524.
To the district court, Loftus argued that they possessed the disputed property openly, exclusively, and continuously for more than 15 years "under the belief" of ownership. The district court noted that was their claim and addressed it directly.
But again, their argument has shifted on appeal. They now accept the district court's ruling that they had notice that the fence was not on the property line when they saw the 90-degree jog and angles in the fence. Instead, they argue that they satisfy the 15- year statutory requirement through a combination of a belief in ownership and a claim knowingly adverse. Loftus contends they had a good-faith belief in ownership of the disputed land from the time they purchased it in 2002 until such time that they became aware of the jog and angles in the fence, in 2016. Thus, they assert that they owned the disputed land by adverse possession at the time Don and Donna Queal purchased their property in 2021. Since that would be less than the 15 years required by law, Loftus argues that their good-faith belief of ownership ripened into a claim knowingly adverse to Hittle from 2016 until the filing of this lawsuit in 2023. They argue the statutory period of 15 years may be met, through their interpretation of the statute, by a combination of a belief in ownership and a claim knowingly adverse.
Loftus admits that "[t]his distinction was not contemplated by the district court in its Memorandum Opinion." But they go on to request that this court consider this new
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statutory interpretation argument "under its authority of de novo review of a district court's interpretation of the adverse possession statute."
But yet again, Loftus offers no explanation for their failure to raise this argument in the district court so the judge could fully consider it. Nor do they list a specific statutory exception that would allow our consideration. See Holley, 315 Kan. at 524. We elect not to consider this newly minted statutory interpretation claim.
The objective facts relied on by the district court in reaching its conclusion that Loftus failed to meet their burden of proof for their claim of adverse possession are supported by substantial competent evidence.
After hearing all the evidence and physically viewing the property, the district court found that Loftus failed to prove an objectively reasonable belief that the boundary of their property followed the fence line. The 90-degree jog in the fence line and the angles in the fence near Elm Creek placed them on notice when they purchased the property that the fence was not entirely on a normal section boundary line. They received a deed for their property which contained a United States Government survey legal description which placed the boundary on the section line. The district court also noted the conflicting testimony Ron Loftus gave concerning when he knew about the irregularities in the fence line. At first, he testified he became aware of the irregular fence line "'pretty soon after we bought it'" which was 2002 but later adjusted that date by as much as 16 years (5-7 years before his deposition). The court clearly questioned the reasonableness of someone who was out on the land as much as he was not realizing that the fence did not follow the section line legal description for the Loftus' land. And their sole claim was that they reasonably believed they owned that land for at least 15 years.
"Given the presumption in favor of the legal title holder, the requirement that the Defendants prove all elements by clear and convincing evidence, and the obvious jog/angles in the existing fence line, the court finds that the Defendants have failed to
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prove an objectively reasonable belief that the boundary of their property followed the original fence line."
The objective facts relied on by the district court are supported by substantial competent evidence. Moreover, because the district court found that Loftus did not meet their burden of proof, it is considered a negative factual finding. As noted, when reviewing negative findings, this court determines whether the district court arbitrarily disregarded undisputed evidence or relied upon an extrinsic consideration—such as bias, passion, or prejudice—in reaching its decision. MFA Enterprise, Inc., 50 Kan. App. 2d at 1055-56. We find no such disregard of evidence or untoward extrinsic considerations here, nor does Loftus make any such claim on appeal.
Affirmed.