Ross v. McNeal

618 S.W.2d 224, 1981 Mo. App. LEXIS 2801
CourtMissouri Court of Appeals
DecidedJune 2, 1981
DocketNo. WD 31567
StatusPublished
Cited by6 cases

This text of 618 S.W.2d 224 (Ross v. McNeal) 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
Ross v. McNeal, 618 S.W.2d 224, 1981 Mo. App. LEXIS 2801 (Mo. Ct. App. 1981).

Opinion

NUGENT, Judge.

This is an appeal on behalf of defendants James E. and Barbara J. McNeal from the judgment of the circuit court which held that title to a disputed strip of land had vested in the plaintiffs Jim David and Wanda Jean Ross by adverse possession. The circuit court also found that the plaintiffs had sustained damages in the sum of $275.00. We affirm.

The Rosses filed suit on May 25, 1979, in Pettis County against James E. McNeal, Barbara J. McNeal, Adam B. Fisher, Trustee, and Missouri State Bank alleging ownership of land roughly six to ten feet in width on the north side of their lot 14 in block 1 of Westview Addition, a residential section of Sedalia, Missouri, lying next to lot 15 owned by the McNeals. The Rosses also prayed for damages in the sum of $1,000.00 for the acts of the McNeals in removing the plaintiffs’ fence, trees and bushes from that land. The defendants filed a general denial. Trial was held on September 9, 1979. Applying the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. en banc 1976), we affirm the judgment of the trial court.

In 1962 James and Lillian Ross, parents of Jim Ross, by a contract for deed purchased lots 13 and 14 in Westview Addition from Helen Bond, the record owner. The elder Rosses lived in a house on lot 13 until 1964. Subsequently they rented the house [226]*226to various tenants. In 1967 Jim Ross took over the payments on the contract for deed. Upon fulfillment of that contract in May, 1974, Jim and Wanda Ross obtained a warranty deed from Mrs. Bond and constructed a house on lot 14.

Imbedded in the alley near the eastern boundary of lots 14 and 15 is a metal fence post, located approximately ten feet north of the actual survey line between the two lots. On the western boundary of lots 14 and 15 is an oak tree, located six feet north of the actual survey line. Both monuments were present in 1962. Neither Jim Ross nor his father had a survey made to determine the boundary line; nor did either Ross have an express agreement with anyone regarding the line. Both assumed, however, that the boundary line was the line between the tree and the fence post. From 1962 until this controversy, they treated the tree-post line as the boundary by mowing to the line, clearing the brush and gardening in that area, and cultivating rose bushes and trees. Jim Ross constructed a fence some three feet south of that line and a sidewalk six feet south of the line. The house the Ross-es built in 1974 was later determined by survey to be less than one inch from the actual platted line.

After 1962 only Jim Ross and his father maintained and improved this strip of land. Two witnesses, owners of lot 15 from 1954 to 1969 and from 1973 to 1978, testified that although they had no express agreement with either Jim or his father, each had assumed that the tree-post line was the boundary and conducted no activity on land south of it.

In May, 1978 the McNeals purchased lot 15. They had the property surveyed and discovered the actual boundary line to be six to ten feet south of the tree-post line. In order to be in compliance with local zoning setback requirements, the Rosses offered to buy a six-foot strip of the land. The McNeals refused to sell more than a three-foot strip. Laying claim to the disputed area, the McNeals, over a period of three months, removed the Ross’ rose bushes, trees, fence, and sidewalk and erected a woven wire fence within a few inches of the Ross home.

The McNeals now assert that the trial court erred in each of the following ways: first, in failing to make a determination as to all the elements of adverse possession; second, in holding that the Rosses were in hostile possession of the land; and third, in finding the possession to be adverse when the intentions of the plaintiffs to hold land beyond the true boundary line was not manifested in a fixed visible boundary line. Finally, the McNeals argue that the trial court erred in holding them liable for damages to the property when those damages occurred prior to the final determination of adverse possession.

Before final submission of the case, counsel for the McNeals made a general request for written findings of fact and conclusions of law. The trial judge did so prefacing his conclusions with a detailed summary of the facts and testimony of the witnesses. Noting that to acquire title by adverse possession the claim must have been actual, open and notorious, exclusive, continuous, and hostile, the trial judge found the only major issue to be the hostile nature of the Ross’ claim. Although the McNeals do not now dispute the open and notorious elements of the adverse claim, they complain that the court should have made a determination as to their existence. In addition, they argue that there was insufficient evidence to establish the actual and exclusive elements.

This court addressed the issue of the sufficiency of the findings of the trial court in First Florida Building, Inc. v. Safari Systems, Inc., 570 S.W.2d 728 (Mo.App. 1978), at 730:

First Florida takes exception to the court’s failure to make findings of fact although allegedly requested by counsel to do so. The record fails to support First Florida’s assertion that it made such a request. The transcript shows only that “Plaintiff files Request for Opinion.” Rule 73.01-l(b)1 provides that in a court tried case, the court shall file a brief [227]*227opinion containing the grounds of decision if so requested by any party and shall, if requested by counsel, include finding “on such controverted fact issues as have been specified by counsel ” (emphasis added). Counsel here requested an opinion and the court complied. Counsel did not specify any controverted fact issues upon which it requested findings, and the trial court cannot be charged with error for not making findings which were not requested.
Moreover, even if a request for specified findings had been made, a failure to comply would not constitute reversible error, and all fact issues would be considered as having been found in accordance with the result reached. (Citations omitted).

The elements of actual and exclusive possession were defined in City of South Greenfield v. Cagle, 591 S.W.2d 156 (Mo.App. 1979), at 159:

What acts will characterize possession as “actual” depend on the nature and location of the property, the uses to which it can be applied and all the facts and circumstances of a particular case. Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010, 1013 (1949); Frazier v. Shantz Real Estate & Investment Co., 343 Mo. 861, 123 S.W.2d 124, 131-132 (1938). Intervenor exercised the normal incidences of possession to a residential front yard. She arranged for having it mowed, planted decorative trees, and used it to travel across, including going to her garden. No one else, for at least 17 years, exercised any rights of possession over the premises. We believe that under the circumstances here, the use of the property showed that intervenor had actual possession from 1954 until 1971.

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Bluebook (online)
618 S.W.2d 224, 1981 Mo. App. LEXIS 2801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-mcneal-moctapp-1981.