Zweemer v. Cantrell

823 S.W.2d 531, 1992 Mo. App. LEXIS 191, 1992 WL 13787
CourtMissouri Court of Appeals
DecidedJanuary 30, 1992
Docket17212, 17224
StatusPublished
Cited by10 cases

This text of 823 S.W.2d 531 (Zweemer v. Cantrell) 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
Zweemer v. Cantrell, 823 S.W.2d 531, 1992 Mo. App. LEXIS 191, 1992 WL 13787 (Mo. Ct. App. 1992).

Opinions

CROW, Judge.

The subject of these appeals1 is land in the northeast quarter of the northeast quarter of section 25 (for brevity, we omit the township and range) in Webster County. The trial court held Plaintiffs John Zweemer and Beverly Arlene Blauvelt own:

All that part of the NE ¼ of the NE ¼ of Section 25 ... lying East of the location of an old North-South fence and being the East 725 feet, more or less, of the NE ¼ of the NE ¼ of Section 25....

The amended decree awarded Plaintiffs possession “of the approximate 57 feet on the West side of the above described property being the property located between the old fence and the new fence constructed by part of Defendants on or about November 1, 1980.” The decree also awarded Plaintiffs money damages in various amounts from various defendants for “wrongful taking.”

[533]*533Defendants — eight in number — appeal,2 claiming the evidence was insufficient to support the decree.

Plaintiffs’ record title emanates from a warranty deed executed October 27, 1972, wherein William Fred Letterman and Mildred Wilma Letterman conveyed to Plaintiff John Zweemer and his wife, Cornelia, this tract:

All that part of the EV2 of the NEVt NEVi of Sec. 25 ... lying North of the Diggins and Gentry Public Road, 18V2 acres, more or less.

Cornelia Zweemer died in 1987. A few weeks later, John conveyed the above-described tract to himself and his daughter, Plaintiff Beverly Arlene Blauvelt, as joint tenants with right of survivorship. They acquired no additional land by deed prior to this suit.

We judicially know a section of land must contain, as nearly as may be, 640 acres, and is a square enclosed by parallel lines running from east to west and from south to north at a distance of one mile from each other. 43 U.S.C.A. § 751 (West1986); Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591, 599(19] (1931); Cf. Hartvedt v. Harpst, 173 S.W.2d 65, 69-70(14] (Mo. 1943); John S. Grimes, Law of Surveying and Boundaries §§ 92-95 (Bobbs-Merrill, 4th ed. 1976); Wilkie Cunnyngham, Making Land Surveys and Preparing Descriptions to Meet Legal Requirements, 19 Mo.L.Rev. 234, 236 (1954).

We likewise judicially know a quarter of a quarter of a section of standard size contains 40 acres, and is a square enclosed by parallel lines running from east to west and from south to north at a distance of one-fourth mile (1,320 feet) from each other. 19 Mo.L.Rev. at 236. It is thus apparent the east half of a quarter of a quarter of a section of standard size contains 20 acres and is a rectangle with an east-west dimension of 660 feet and a north-south dimension of 1,320 feet.

Inasmuch as (a) the trial court decreed Plaintiffs own the east 725 feet of the northeast quarter of the northeast quarter of section 25, and (b) Plaintiffs hold record title to only the east half of the northeast quarter of the northeast quarter of section 25 (being the east 660 feet of that “quarter-quarter section”), it is obvious Plaintiffs’ ownership of the west 65 feet of the decreed 725 feet must rest on adverse possession.

The defendants’ respective interests originate in a warranty deed executed September 10, 1974, wherein Benn Logan conveyed to Defendants Theodore E. Hill and Evelyn A. Hill certain land including:

... the WV2 of the NEVt of the NEVi of Section 25 ... except a 60-foot strip along the West side for road purposes.

It is evident the east boundary of the above-described tract is the same line as the west boundary of the tract to which Plaintiffs hold record title, i.e., the line between the east and west halves of the northeast quarter of the northeast quarter of section 25.

The Hills held record title to the tract they acquired from Logan for 13 years. Beginning in 1987, the other defendants acquired their interests from the Hills. By then, the events on which Plaintiffs base their claim of adverse possession had occurred. To keep the facts in chronological order, we synopsize the evidence regarding adverse possession before recounting how the remaining defendants acquired their interests.

Our narrative of the evidence honors the rule that in determining the sufficiency of the evidence to support the decree in a judge-tried case, an appellate court accepts as true the evidence and inferences from it favorable to the decree and disregards contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654[2] (Mo. banc 1989). Where, as here, no party requested findings of fact and conclusions of law, and the trial court made none, all fact issues shall be considered as having been found in [534]*534accordance with the result reached. Rule 73.01(a)(2), Missouri Rules of Civil Procedure (1991); T.B.G., 772 S.W.2d at 654[3]. Credibility of the witnesses and the weight to be given their testimony were matters for the trial court, which was free to believe none, part, or all of their testimony. Herbert v. Harl, 757 S.W.2d 585, 587[1] (Mo. banc 1988). We do not substitute our judgment for that of the trial court on credibility issues. State ex rel. Webster v. Cornelius, 729 S.W.2d 60, 65[5] (Mo.App.1987); Stratton v. Stratton, 694 S.W.2d 510, 512[2] (Mo.App.1985).

Viewed in harmony with the above principles, the evidence established that in 1968, Jacob G. Schwartz became owner of land immediately west of the tract to which Plaintiffs hold record title. At that time, a wire fence separated the two tracts. The fence was “fairly straight” and extended all the way “from the north end of the property to the road.” Schwartz accepted the fence as the boundary. It remained in place during Schwartz’s ownership. We henceforth refer to the fence as “the old fence.”

When John and Cornelia Zweemer received their deed in 1972, the old fence ran the length of their west side, “[a] quarter of a mile.” John believed the west boundary of his land was “[rjight where the fence was.” He pastured livestock “up to that fence,” and “fixed it up” by replacing some posts and wire. He left its location unchanged.

In October or November, 1980, Defendant Theodore E. Hill and his son-in-law, Francis McCallum, tore down the old fence and had a new one erected east of it. The new fence extended “the full length” of the west side of Plaintiffs’ property, “[f]rom the road clear to the back.”

Evidence regarding the distance between the location of the old fence and the new one was in conflict. The testimony most favorable to Plaintiffs came from Plaintiff Beverly Arlene Blauvelt. Asked whether she had an opinion about the distance, she answered, “I’ll say 57 feet.”

By warranty deed executed September 14, 1987, the Defendants Hill conveyed to Defendants Bruce L. Bewley and Geneva Bewley an irregularly shaped parcel from the tract the Hills had acquired in 1974.

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Zweemer v. Cantrell
823 S.W.2d 531 (Missouri Court of Appeals, 1992)

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Bluebook (online)
823 S.W.2d 531, 1992 Mo. App. LEXIS 191, 1992 WL 13787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zweemer-v-cantrell-moctapp-1992.