Roger and Nancy Tiemann, Plaintiffs/Respondents v. Marion E. Nunn, and Randall and Marsha Little , 495 S.W.3d 804 ( 2016 )

In the Missouri Court of Appeals
Eastern District
NORTHERN DIVISION
ROGER and NANCY TIEMANN, ) No. ED102920
)
Plaintiffs/Respondents ) Appeal from the Circuit Court of
vs. ) Marion County
)
MARION E. NUNN, et al, ) Hon. Rachel Bringer Shepherd
)
Defendants, ) FILED: August 2, 2016
)
and )
)
RANDALL and MARSHA LITTLE, )
Defendants/Appellants.
OPINION
Randall and Marsha Little appeal the trial court’s judgment quieting title to a 17-acre parcel
of land in favor of Roger and Nancy Nunn Tiemann by adverse possession. We affirm.
Background
Given the highly fact-specific nature of adverse possession cases, a thorough recitation of
the evidence before the trial court is warranted. The parcel of land in question (the Property) is
located on the northern edge of Marion County adjacent to Lewis County. The county line draws
the northern border. The Fabius River forms a U shape tracing the borders to the west, south, and
east. Most of the Property is wooded, except for 4.59 acres of farm land forming a semi-circle at
the top center of the U. That semi-circle is the southern tip of a much larger field expanding north
across the county line into Lewis County and consisting of 133 acres owned and farmed by the
Nunn family. The only vehicular access to the Property is a narrow private gravel road on the
Nunn farm.
Many of the parties here are related by blood or marriage. The family tree begins with
Nancy’s great-grandfather, Marion L. “Tude” Nunn, who divided and conveyed three parcels of
land to three of his six children. The 133 acres of farmland in Lewis County went to Nancy’s
grandfather, James Wilbur Nunn, and eventually to Nancy and her first cousins (Wilbur’s
grandchildren). Another parcel including the Property went to Mary Ann Nunn Lindstrom.
Lindstrom died in 1985, leaving that parcel to her closest living heirs, namely her daughter Rosella
Kolthoff and her other daughter’s grandson, William Jones.1 Kolthoff sold other parts of her parcel
to different buyers who were not interested in acquiring the Property. Jones deeded his interest in
the Property to Kolthoff in 1989, making her the sole owner of the Property. Kolthoff paid taxes
on the Property but never used or visited it. Kolthoff sold the Property to the appellant Littles in
2009.
Meanwhile, however, Nancy’s husband, Roger, had been farming the Property as part of
the larger Nunn field for decades, until he learned of the Littles’ claim of ownership. In 2012, the
Tiemanns filed a petition to quiet title of the Property by adverse possession. 2 The Littles defended
the action and filed a counterclaim seeking an easement of necessity on the Nunn farm to access
the Property. The parties appeared before the trial court in 2014.
1
Judge Bringer Shepherd was careful to disclose on the record that William Jones was her mother’s half-
brother. The judge assured the parties that she was unfamiliar with the property in dispute here, and
neither party requested recusal.
2
Prior to the filing, Nancy’s cousins quitclaimed their respective interests in the Nunn farm to Nancy and
Roger as tenants by the entirety, making the Tiemanns the sole owners of the 133 acres in Lewis County.
2
Roger testified that he started farming the Nunn land (the entire field comprised of 133
acres in Lewis County plus the 4.59 acres in Marion County) with Nancy’s father, James Nunn
(Wilbur’s son), in 1965 after he and Nancy married. Roger explained that the 4.59-acre section in
Marion county “was never separated out” from the larger Nunn field in Lewis County. “It was
planted as one field.” Counsel adduced records of the Farm Service Administration (FSA) dated
1989 and 2009 naming Roger as operator of the Nunn farm, including the 4.59 acres in Marion
County. The Tiemanns shared crop revenue with the Nunn family. No one else ever farmed the
land throughout that time, and Roger assumed that his annual tax bill for Marion County included
the Property. Roger and the Nunns built and regularly maintained a levy on the Property to protect
the field. Roger occasionally granted permission for third parties to hunt on the Property.
Neighbors Harold Wiseman and Merlin Eisenberg testified that Roger was the only person
to work on the Property and to grant others permission to use it for hunting and passage via the
levy.
Nancy testified to clarify the family tree, in part referring to a genealogical article written
by a family member from the Wiseman branch in 1975 listing the names, lands, and other
particulars of various descendants of Tude Nunn. Rosella Kolthoff was Nancy’s great-aunt, so
Kolthoff’s daughter, Sandy Lillard, one of the defendant-appellants here, is Nancy’s second
cousin. Though reluctant to answer, Nancy confirmed that the Tiemanns and Lillards attended the
same family Christmas gatherings “until about 20 years ago.”
Sandy testified on behalf of the Littles, 3 revealing another connection in the family tree,
namely that Sandy’s sister-in-law (her husband’s sister) is married to Roger’s brother. Sandy also
testified that her mother obtained a survey of the Property in 1986 (after Lindstrom’s death). And
3
Kolthoff was 93 and living in a nursing home at the time of trial.
3
tax records were adduced showing that Kolthoff paid taxes on the Property annually from 1987
($18.95) to 2008 ($29.58). On cross-examination, Sandy conceded that Kolthoff never visited or
farmed the Property while she owned it and never mentioned anything about the Tiemanns farming
it.
Ruth Redman, a title agent, testified that she conducted a title search for the Littles before
they purchased the Property from Kolthoff. She stated that Mark Twain Title Company “found a
good chain of title down to Rosella Kolthoff” and she was unaware of any adverse claim.
Finally, appellant Randy Little testified that he was a real estate broker and appraiser with
22 years’ experience, he owned other farms and commercial properties, and he purchased the
Property “site unseen.” He further testified that he was familiar with FSA procedures and, before
the purchase, both Kolthoff and an FSA representative told Little that Roger had permission to
farm the Property. Little “knew that there was no access … that it was landlocked,” which
precluded him from obtaining title insurance. He explained, “I’m not there but twice a year and
… I would like to get an easement to it because it’s landlocked. I’d like to be able to use it.”
After the close of the evidence, the trial court accepted additional briefing on the specific
standards for adverse possession as applied to unoccupied wooded lands and as between family
members. Ultimately, the court found that the Tiemanns acquired the Property by adverse
possession. Accordingly, the court quieted title in the Tiemanns’ favor, rendering moot the Littles’
counterclaim. The Littles appeal and assert that the evidence was insufficient to establish that the
Tiemanns’ possession was (1) actual as to the entire Property, (2) open and notorious, and (3)
hostile.
4
Standard of Review
This court’s review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).
We will affirm the trial court's determination unless there is no substantial evidence to support it,
it is against the weight of the evidence, or it erroneously declares or applies the law. Dumproff v.
Driskill, 376 S.W.3d 680, 687 (Mo. App. S.D. 2012) (quoting Murphy, 536 S.W.2d at 32). We
take as true all evidence and reasonable inferences therefrom in the light most favorable to the
judgment, disregarding all contrary evidence and inferences. Id.
Analysis
In order to prevail on a claim of ownership by adverse possession, a party must establish
by a preponderance of evidence that possession was: 1) hostile and under a claim of right; 2) actual;
3) open and notorious; 4) exclusive; and 5) continuous for a term of ten years. Dumproff, 376
S.W.3d at 688. “Adverse possession presents mixed questions of law and facts, and the principles
or elements to prove such a case are viewed with the view that every property is unique. Each case
must be decided in light of its own unique circumstances. Much depends on the location, the
character, and the use to which the land in question may reasonably be put.” Kohler v. Bolinger,
70 S.W.3d 616, 619 (Mo. App. W.D. 2002).
Actual Possession
For their first point, the Littles contend that the record lacks substantial evidence of the
Tiemanns’ actual possession of the Property. Actual possession is “the present ability to control
the land and the intent to exclude others from such control.” Dumproff, 376 S.W.3d 688. 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 facts and circumstances of a particular case. Id.
5
“Where the claimant occupies land without color of title, he must show physical possession
of the entire area claimed.” Murphy v. Holman, 289 S.W.3d 234, 237 (Mo. App. W.D. 2009). “A
mere mental enclosure of land does not constitute the requisite actual possession.” Id. at 238.
Rather, “there must be continued acts of occupying, clearing, cultivating, pasturing, building
fences or other improvements, and paying taxes.” Id. “The performance of all or any combination
of these acts of occupancy serves as evidence of actual possession but is not conclusive.” Id.
“Each case must be decided on its own peculiar facts.” Id.
Relying on the foregoing principles, the Littles assert that the Tiemanns’ activity on the
12.41 acres of unfarmed wooded land was insufficient to establish ownership of the entire
Property. However, the “actual possession” element of adverse possession “is less strict for wild,
undeveloped land than it is for developed property, because the nature, location, and potential uses
for the property may restrict the type of affirmative acts of ownership.” Dumproff at 689. A
survey of relevant precedent underscores the fact-specific nature of the inquiry.
Courts have found the evidence insufficient in cases where a claimant’s activity is minimal
or passive. In Edmonds v. Thurman, 808 S.W.2d 408 (Mo. App. S.D. 1991), the claimants’ only
act of ownership was maintenance of an old fence built by the defendants’ predecessors in title,
and “conspicuously absent” from the record was any evidence of the claimants’ intent to exclude
others from control of the disputed tract.” Id. at 410. In Eime v. Bradford, 185 S.W.3d 233 (Mo.
App. E.D. 2006), the claimant never asserted ownership by patrolling or posting a No Trespassing
sign and never cut timber, ran cattle, or planted on the disputed property, though she farmed a field
adjacent to it. Id. at 235. In Murphy, the claimant picked mushrooms, allowed cattle to graze, and
allowed others to hunt on the disputed property but never mowed, removed hay, cleared brush,
6
cleared timber, or paid taxes on it. 289 S.W.3d at 240. On these facts, the court described the
claimant’s limited activities as “nothing more than occasional trespasses.” Id.
By contrast, courts have found the evidence sufficient where such activities combine with
additional facts demonstrating an intent to possess. For example, in Dumproff, the evidence was
insufficient as to two tracts where the claimants repaired a pre-existing fence and allowed grazing
and hunting on the property, but the evidence was sufficient as to a third tract where the claimants
farmed a portion of the disputed property and built a cross-fence to separate it from pasture.
Dumproff, 376 S.W.3d at 689. In Whiteside v. Rottger, 913 S.W.2d 114 (Mo. App. E.D. 1995),
the evidence was sufficient where the claimants built a fence and a well on the property, hunted
and allowed others to hunt, cleared timber, and “exercised some control over who had access to
the parcel.” Id. at 120. The court reasoned, “Those were the only activities that could be done on
the property. The land was not fit for cultivation or building and was subject to flooding. Indeed,
no one would have allowed the property to be used or disturbed in any other fashion.” Id.
Under the foregoing authorities and this court’s standard of review – deferring to the trial
court on matters of fact and viewing the evidence in the light most favorable to the judgment –the
trial court’s finding of actual possession is supported by substantial evidence here. The Tiemanns
had exerted control over the entire Property at least since 1985. They cultivated the 4.59 acres of
farmland on the Property during that time. Roger and the Nunns built and consistently maintained
a levy on the Property. Roger alone cleared debris when the levy failed. Roger was the only
person to work the property and to control access to it. Neighboring landowners confirmed the
Tiemanns’ dominion and control of the Property. Similar to Whiteside, the wooded portion offered
limited uses beyond hunting. 4
4
Although not directly adduced through witness testimony, in closing arguments, counsel for the Tiemanns
argued as a point of common knowledge (without objection) that woodlands serve to protect farm fields
7
According to the Littles’ logic, however, the Tiemanns still failed to exercise sufficient
dominion over the wooded portion because they chose not to clear or log the timber or develop the
land for other purposes. We decline to impose such a mandate in direct contravention of the lower
standard for wild lands. As the Littles concede in point II of their brief, landowners “might go for
lengthy time periods without having any reason to be on the ‘wild’ property.”
The only fact weighing against the Tiemanns is that they did not pay taxes on the Property.
But “payment of taxes is not conclusive on the issue of whether a person has acquired ownership
of property by adverse possession.” Hearod v. Baggs, 169 S.W.3d 198, 205 (Mo. App. S.D. 2005).
In all other respects, the entirety of the record illustrates the Tiemanns’ exercise of ownership of
the Property.
“The actuality of possession and the intent with which dominion over land is exercised
may be shown by an almost endless combination of circumstances,” and “each case must be ruled
on its own facts.” Miller v. Warner, 433 S.W.2d 259, 263 (Mo. 1968). Under applicable precedent
and on the particular combination of circumstances in the present record viewed through the lens
of our standard of review, the evidence is sufficient to support the trial court’s finding of actual
possession of the entire Property. Point I is denied.
Open and Notorious
For their second point, the Littles contend that the record lacks substantial evidence of the
Tiemanns’ open and notorious possession of the Property. “The open and notorious element of
adverse possession is satisfied by exercising visible acts of ownership on the disputed property.”
Martens v. White, 195 S.W.3d 548, 555 (Mo. App. S.D. 2006). “The reason for this requirement
is to give the owner cause to know of the adverse claim of ownership by another.” Id.
from flooding. Counsel for both parties disputed whether the timber itself was valuable, the Tiemanns’
counsel suggesting that logging the area would have been more trouble than profit.
8
The Littles argue that the Tiemanns failed to demonstrate open and notorious possession
in that Kolthoff was unaware of the Tiemanns’ activity on the Property. Specifically, the Tiemanns
never notified Kolthoff of, or requested permission for, their operations on the Property, and
Kolthoff was “an elderly female” with “very little reason or likelihood of spending much time on
property of this nature.” The Littles urge this court to adopt a higher standard of proof on these
facts seeing as “much of the farmland and rural property in Missouri is owned by older women
these days.” We reject the implication. Kolthoff was 64 when she inherited the Property and had
the wherewithal to commission a survey and sell adjacent land to other buyers.
Moreover, actual knowledge or notice is not required. Although the open and notorious
requirement can be met by showing a respondent’s actual knowledge of the adverse claim, absent
proof of actual knowledge, this requirement can also be satisfied by demonstrating that the
claimant’s possession is “conspicuous, widely recognized, and commonly known.” Green v.
Lange, 797 S.W.2d 765, 768 (Mo. App. E.D. 1990). “Knowledge or notice in such cases has been
held to mean knowledge of all that would be learned by reasonable inquiry.” Id. In Williams v.
Frymire, 186 S.W.3d 912 (Mo. App. S.D. 2006), the evidence of open and notorious possession
was sufficient where the claimants mowed grass on the disputed property for 40 years without
anyone else claiming an interest, and the claimants’ neighbors testified that the disputed property
had always been considered as part of the claimants’ yard. Id. at 921. In Whiteside, the evidence
was deemed sufficient where “persons in the area considered the parcel as [the claimants’]
property” and the claimants “used the property as they saw fit.” 913 S.W.2d at 121.
Based on these standards, the record contains ample evidence that the Tiemanns’
possession of the Property was open and notorious. As detailed above, the Tiemanns worked the
9
land as their own, and their neighbors believed them to own the Property. The Tiemanns’
possession was conspicuous, widely recognized, and commonly known. Point II is denied.
Hostile
For their third point, the Littles assert that the record lacked substantial evidence that the
Tiemanns’ possession of the Property was hostile. “For possession to be hostile, neither knowledge
of the actual title holder nor intent to deprive him of title is required. It is only necessary the
claimant intended to occupy and did occupy the land as his own.” Kohler, 70 S.W.3d at 621. “The
intent with which the occupant has held possession is to be determined from all the surrounding
circumstances and especially from his acts.” Williams, 186 S.W.3d at 919. Accord, Martens, 195
S.W.3d at 555 (a claimant’s intent may be inferred from his acts of dominion over the land).
The Littles argue that the Tiemanns farmed the land with Kolthoff’s permission, and
permissive use is not hostile. The record contains conflicting evidence as to whether the Tiemanns
had permission to occupy and farm the Property. Randy Little testified that both Kolthoff and the
FSA indicated that the Property was farmed with permission. But Sandy Lillard testified that her
mother never mentioned anything about the Tiemanns farming the Property or her permitting them
to do so. Roger did not confirm such permission and speculated (without objection) that FSA
records were inaccurate in that respect perhaps because Roger and the Nunns had farmed the
Property for decades as part of their larger field in Lewis County. Roger further testified that
Kolthoff never contacted him demanding rent or for any other reason, and he believed that his
Marion County tax bill included the Property.
Despite the Littles’ attempt to re-litigate the facts, this court defers to the trial court’s
determination of the witnesses’ credibility and the weight to be given to their testimony. Murphy
v. Holman, 289 S.W.3d at 237. “The trial court is free to believe or disbelieve all, part, or none of
10
the testimony of any witness.” Dumproff, 376 S.W.3d at 678. Thus, trial court here was free to
disbelieve Randy’s testimony, to believe Sandy’s testimony, and to infer from Roger’s testimony
and the entirety of the record that the Tiemanns never obtained Kolthoff’s permission to occupy
the property because they considered themselves the owners. The remaining evidence in the record
demonstrates the Tiemanns’ intent to occupy the land as their own.
Finally, the Littles submit that the evidence is still insufficient given the particular facts of
this case because “there is a greater standard of proof required when the parties involved in an
adverse possession claim are family members.” Sleepy Hollow Ranch LLC v. Robinson, 373
S.W.3d 485, 496 (Mo. App. S.D. 2012). But the family connection here is distant. Nancy and
Sandy are second cousins in a large extended family. Both testified that they no longer attended
the same Christmas gatherings at the Lillards’ residence. In fact, Nancy initially refused to answer
the question and ultimately replied that the Tiemanns stopped attending 20 years ago. Given this
record, the trial court was free to give little or no weight to the tenuous family connection. See
Soderholm v. Nauman, 409 S.W.3d 382, 392 (Mo. App. W.D. 2013) (distant relation did not
establish “family closeness” suggesting permissive use). Moreover, even this higher standard
between family members does not prevent a finding of adverse possession under circumstances
where the evidence of adverse possession is strong. Lancaster v. Neff, 75 S.W.3d 767, 775 (Mo.
App. 2002). The present record satisfies that standard. Point III is denied.
11
Conclusion
The record contains substantial evidence supporting the trial court’s finding that the
Tiemanns’ possession of the Property was actual, open and notorious, and hostile. The trial court’s
judgment is affirmed.
______________________________________
Lisa Van Amburg, Judge
Roy L. Richter, J., and
James M. Dowd. J., concur.
12