Stuart A. Devore and Vandee Devore, Husband and Wife v. Lillian Vaughn , 504 S.W.3d 176 ( 2016 )

In the
Missouri Court of Appeals
Western District
STUART A. DEVORE AND VANDEE )
DEVORE, HUSBAND AND WIFE, )
) WD79400
Respondents, )
) OPINION FILED:
v. ) November 22, 2016
)
LILLIAN VAUGHN, ET AL., )
)
Appellants. )
Appeal from the Circuit Court of Boone County, Missouri
The Honorable Jodie C. Asel, Judge
Before Division Four: Mark D. Pfeiffer, Chief Judge, Presiding, Karen King Mitchell,
Judge and Gary D. Witt, Judge
Lillian Vaughn, Beverly Gardner, Racine Vaughn, Meredith Udell Vaughn, Gary
Wayne Vaughn, Keith H. Vaughn, and Michael Lee Vaughn (collectively the
"Appellants") appeal from the judgment of the Circuit Court of Boone County, entered
after a bench trial, quieting title and vesting fee simple absolute title through adverse
possession of certain property located in Boone County, Missouri to Respondents Stuart
and Vandee DeVore (collectively "the DeVores"). Appellants raise two points on appeal
challenging the trial court's findings that the DeVores' possession of the property was
hostile and open and notorious for the required statutory periods. We affirm.
Factual Background
This appeal involves the vesting of fee simple absolute title through adverse
possession of a piece of property immediately adjacent to property owned by the DeVores.
The DeVores are the recorded owners of 8.5 acres, described in a deed dated June 20, 2001,
and recorded at Book 1743, Page 730, with the Boone County Recorder's Office as follows:
The Northeast quarter of the Northeast quarter of the Northeast quarter of
Section 28, Township 47 North, Range 12 West, Boone County, Missouri
except 1 and 1/2 acres in the Northeast corner thereof conveyed to Lee Pierre
Harris by deed dated May 11, 1962 and recorded in Book 317, Page 289,
Records of Boone County, Missouri.
(The "DeVore Property").
The Appellants' parents James and Marjorie Vaughn became the recorded owners
of the 1.5 acres adjacent to the DeVore Property on January 10, 1984.1 The property was
conveyed to them by deed dated January 3, 1984 and recorded with the Boone County
Recorder's Office. The deed described the property as follows:
One and one half acres in a square in the Northeast corner of the Northeast
1/4 of the Northeast 1/4 of Section 28, Township 47, Range 12 in Boone
County, Missouri.
(The "Disputed Property"). The Disputed Property is bordered on the west and south by
the DeVore Property and both properties are bordered to the north by East Woodson Harris
Road. James Vaughn died in 1984, shortly after the Disputed Property was purchased.
1
This 1.5 acres is the property described as excepted from the legal description of the DeVore Property
described above.
2
Appellants inherited the Disputed Property after the death of their mother Marjorie Vaughn
on July 18, 2010, and became the record owners of the Disputed Property in a Decree of
Determination of Heirship on August 11, 2014.
On March 27, 2013, the DeVores filed a Petition asking that the trial court divest
Appellants of any interest in the Disputed Property through adverse possession. The case
was tried to the court on September 3, 2015.
The following evidence, in brief, was adduced at trial. The DeVores have lived on
the DeVore Property from June 22, 2001 through the date of trial. The home in which the
DeVores live was built in 1994, and 450 square feet of the home was built on the Disputed
Property. In addition, a retaining wall connected to the house extended onto the Disputed
Property. A fence, which ran from East Woodson Harris Road to the south line of the
Disputed Property, was located 82 feet east of and parallel to the boundary line between
the DeVore Property and the Disputed Property. The fence was maintained by the DeVores
and all of the property west of the fence was used by the DeVores as a yard, which was
kept regularly mowed and cared for.
The DeVores were aware they had only purchased 8.5 acres and knew the remaining
1.5 acres of the original 10-acre tract was owned by Marjorie Vaughn, although they did
not personally know Marjorie Vaughn. The DeVores were not aware where the exact
property boundary between their property and the Disputed Property was until a survey
was conducted in 2014, which revealed that part of their home, retaining wall, and yard
were located on the Disputed Property. Stuart DeVore testified that he had never seen
Marjorie Vaughn or anyone else on the Disputed Property and immediately after he
3
acquired his property he began to treat the disputed property as his own and take care of
the property.
The DeVores made significant improvements to their home and yard throughout
their occupation of the premises and, naturally, resided thereon. The home, retaining wall,
and yard were visible from East Woodson Harris Road. The remainder of the Disputed
Property, not consisting of the DeVores' home and yard is located east of the above-
described fence and is undeveloped and heavily wooded ("the Wooded Tract").
The DeVores conducted a number of activities on the Wooded Tract, including the
creation and maintenance of a significant trail system, activities associated with hunting,
and general recreation thereon. In addition, the DeVores took responsibility for
maintaining the Wooded Tract, including installing a fence around an open well, and
cleaned up after a utility company cleared a significant pathway under a utility line. The
DeVores were regularly on the Wooded Tract for many activities. The DeVores testified
they would have excluded Marjorie Vaughn and the Appellants from the Disputed
Property, including the Wooded Tract, because they considered it their own. However,
neither Marjorie Vaughn nor the Appellants were seen on the Disputed Property between
2001 and 2013.
Marjorie Vaughn lived on East Woodson Harris Road, a dead-end road, past the
DeVore Property such that to reach her home one would have to drive by the Disputed
Property and the DeVore Property. Neither Marjorie Vaughn nor the Appellants ever gave
permission to the DeVores to use any portion of the Disputed Property.
4
The trial court entered judgment in favor of the DeVores, quieting title and vesting
fee simple absolute title through adverse possession of the entire Disputed Property,
including the Wooded Tract, to the DeVores. This appeal follows. Additional facts will
be presented as relevant in the analysis section below.
Standard of Review
In a court-tried case, this court will affirm the judgment of the trial
court unless there is no substantial evidence to support it, it is against the
weight of the evidence, it erroneously declares the law, or it erroneously
applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
"All evidence favorable to the judgment and all inferences to be drawn from
the evidence are accepted as true, and all contradictory evidence is
disregarded." Underwood v. Hash, 67 S.W.3d 770, 774 (Mo. App. S.D.
2002). This court defers to the trial court's determination of the credibility
of witnesses and the weight to be given to their testimony. Id.
Murphy v. Holman, 289 S.W.3d 234, 237 (Mo. App. W.D. 2009).
Analysis
Point One
In Point One, Appellants argue that the trial court erred in quieting title and
awarding fee simple absolute title by adverse possession to the entire Disputed Property to
the DeVores because the judgment's finding that the DeVores' "intent to possess all of the
Disputed [Property] was hostile" is not supported by substantial evidence, is against the
weight of the evidence, and erroneously declares and applies the law,2 in that the DeVores
had no claim of right to the Disputed Property, they knew that they did not own the property
2
In both Points One and Two on appeal, Appellants raise multiple claims of error in the same point relied
on which is not permissible under our rules. A substantial-evidence challenge, a misapplication-of-law challenge,
and an against-the-weight-of-the-evidence challenge are distinct claims and must be raised separately. See Ivie v.
Smith, 439 S.W.3d 189, 199 n.11 (Mo. banc 2013). This Court will gratuitously address the merits of Appellants'
claims. Counsel should take caution to follow Rule 84.04(d).
5
and that Marjorie Vaughn owned the property during her life and her children owned it
after her death, and the DeVores had no claim of ownership or title as is legally required
by the doctrine of adverse possession.
"To prevail on a claim of adverse possession, a claimant must prove by a
preponderance of the evidence that his possession of the tract of land was: (1) hostile, (2)
actual, (3) open and notorious, (4) exclusive, and (5) continuous for a period of ten years."
Daniels-Kerr v. Crosby, 484 S.W.3d 798, 802 (Mo. App. W.D. 2016). "To satisfy the
hostile element, the claimant must show that he intended to occupy the disputed parcels as
his own." Brasher v. Craig, 483 S.W.3d 446, 451 (Mo. App. W.D 2016) (quoting
Kitterman v. Simrall, 924 S.W.2d 872, 876 (Mo. App. W.D. 1996)). The intent to possess
the land "may be inferred from his or her acts of dominion over the land." Sommerlath v.
Voss, 449 S.W.3d 390, 394 (Mo. App. E.D. 2014).
Appellants argue that mere possession of property cannot ripen into adverse
possession without some claimed legal right or a mistaken belief as to a legal right to the
property. They interpret language in our cases saying the possession must be "hostile" and
"under a claim of right" as requiring some good faith belief in legal ownership, perhaps
manifested by colorable title to the property, before possession can ripen into adverse
possession.
Whether a claimant believes he does or does not have title to or other legal claim to
the disputed property is not the proper inquiry in Missouri as the intent that must be
demonstrated is solely the intent to occupy the disputed property as one's own. Missouri
cases have consistently held that to satisfy the "hostile," i.e. under a "claim of right"
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element only requires that the adverse possessor show the intent to occupy the disputed
property as his own, exclusive of the rights of all others. See Brasher, 483 S.W.3d at 451;
Kitterman, 924 S.W.2d at 876; Weaver v. Helm, 941 S.W.2d 801, 804 (Mo. App. S.D.
1997) ("Hostile means a possession antagonistic to claims of all others, with an intent to
occupy as one's own"). In analyzing the "hostile" element, Missouri courts do not consider
the good faith or motivation of the adverse possessor; we do not attempt to peer into the
mind and make contingent the claimant's proof of hostility on why he is claiming ownership
over the land. "To be hostile, it is not necessary to have actual malice, hostility,
indifference or intent to take the property which belongs to another. The intent to possess,
occupy, control, use and exercise dominion over the property is sufficient." Trokey v.
R.D.P. Dev. Grp., L.L.C., 401 S.W.3d 516, 525 (Mo. App. S.D. 2013). To gauge this
intent, we look at the acts of dominion the claimant performs on the land and not to his
intent with respect to the rights of others. See Rohner v. Beets, 396 S.W.3d 458, 461 (Mo.
App. W.D. 2013) ("The claimant must occupy the land with the intent to possess it as her
own. The claimant's occupancy must be in defiance of, rather than in subordination to, the
rights of others. Intent may be inferred from her acts of dominion over the land.")
The language in recent cases addressing the hostility of ownership for the purposes
of adverse possession has been perhaps frustratingly abstruse regarding whether a claimant
who knows from the outset that he/she has no legal claim to property may still possess
property in a hostile manner, that is under a claim of right. The answer to that question in
Missouri is unequivocally yes. In 1961, the Missouri Supreme Court squarely addressed
this issue in Gates v. Roberts, 350 S.W.2d 729 (Mo. 1961). In Gates, the claimant and his
7
family were about to lose their home because they could not meet their financial obligations
under the note and deed of trust. Id. at 731. Near to where the family lived was a lot with
a partially constructed home that was unfinished and was empty. Id. With no legal right
to enter and possess the property, under title or otherwise, the family took possession of
the property, began living in the home and treated it as their own. Id. Many years later,
the owner of record of the disputed property deeded the property to the plaintiff in the case
who filed suit. Id. In Gates, the plaintiff argued that the evidence failed to establish the
necessary element of "hostile" possession as there was "no evidence that [the claimant]
entered the property under any claim of right" and "that he did not enter under color of
title." Id. at 731-32.
The Supreme Court defined "hostility" as "possession opposed and antagonistic to
the claims of all others" and "imports the occupation of land by the possessor with the
intent to possess the land as his own." Id. at 732. The Supreme Court found
[Claimant] and his family descended upon the property, moved in right under
the nose of the record owner, cleaned up the place, completed the
construction of the building and made substantial additions thereto, planted
an orchard and lived in actual, open and notorious, continuous, and exclusive
possession of the property, under claim of right, as against the whole world
including the record owner, who lived only a stone's throw from Lot 18, for
a period of more than 20 years. While it is true that [Claimant] did not enter
under color of title it is the general rule, in the absence of statutory
requirement, that color of title is not a necessary element in order to
originate and perfect title by adverse possession.
Id. (emphasis added). Although the claimant in Gates later acquired tax deeds to the
property, the Missouri Supreme Court was clear that color of title is not necessary to either
originate or perfect title by adverse possession. Id. There was no basis in fact for the
8
claimant in Gates to believe he had any legal right to the property. The claimant in Gates
was not operating under a mistaken belief or good faith belief that he had a legal right to
the property, but rather exercised a naked assertion of ownership.
As made clear in Gates, the state of mind of the claimant with regard to his
motivation for possessing the land is immaterial. The only intent that is necessary is the
intent to occupy and possess the land exclusive of the rights of all others, and no colorable
title or other legal claim or good faith belief as to ownership of the property is necessary.
This principle has been repeatedly affirmed by our courts as we have explained that a
mistaken belief that one has title to the land has no bearing on the analysis of whether the
possession is hostile to the rights of the true owner. See Kitterman, 924 S.W.2d at 876;
Walker v. Walker, 509 S.W.2d 102, 106 (Mo.1974); Witt v. Miller, 845 S.W.2d 665, 668
(Mo. App. E.D. 1993). Left unstated in many of these decisions is the corollary, which is
equally true, that the knowledge that one does not have title or other legal right to possess
the property as one's own has no bearing on whether the claimant is occupying the property
in a hostile manner, i.e. under a claim of right.3
3
Appellants rely on Moore v. Dudley, 904 S.W.2d 496 (Mo. App. E.D. 1995), a case in which a claimant
knew she was trespassing and intended to take the land by adverse possession. There, the court held that, in addition
to the possession failing to meet the "open and notorious" standard, the claimant had no claim of ownership or title
and, thus, her occupancy could not ripen into adverse possession. Id. at 498. First, the result in that case did not rely
on the question of hostility as the court had first determined the open and notorious standard had not been met and
therefore this language is dicta. Second, the cases that the Moore court rely on for this proposition do not support
the principle as enunciated. The court relies upon John v. Turner, which states the proposition that "[p]ossession of
land in recognition of a lack of title is insufficient to ripen into title by adverse possession." 542 S.W.2d 293, 300
(Mo. App. 1976). In that, case, however, the court found that the claimant's use of the property was actually
permissive and the court cites to Gates, which, as explained in the body of the opinion, stands for the opposite
proposition. See Gates, 350 S.W.2d at 732. It does not appear that Moore has been relied upon by any subsequent
cases and, insofar as it states the proposition that a claimant's occupancy of land cannot ripen into adverse
possession absent title or other colorable good faith legal claim to the property, it should not be followed.
9
Part of the confusion regarding the "hostile" element may be due to our courts
referring to this element of adverse possession as "hostile and under [a] claim of right."
See e.g., Tetrault v. Yankowski, 460 S.W.3d 43, 51 (Mo. App. E.D. 2016); Whetstone
Baptist Church v. Schilling, 381 S.W.3d 366, 373 (Mo. App. S.D. 2012). The original
language used by Missouri courts did not use a conjunction to connect the two terms but
rather clarified that "hostile" means under a claim of right. See e.g., State ex rel. Edie v.
Shain, 348 Mo. 119, 122 (Mo. 1941) ("These elements are: (1) That the possession must
be hostile; that is, under a claim of right"); Walker v. Walker, 509 S.W.2d 102, 106 (Mo.
1974) ("The possession must be (1) hostile, that is, under a claim of right"); Watson v.
Mense, 298 S.W.3d 521, 526 (Mo. banc 2009) ("To acquire title by adverse possession or
prescription, possession must be: (1) hostile, that is, under a claim of right"); Ferguson v.
Hoffman, 462 S.W.3d 776, 780 (Mo. App. W.D. 2015) ("For title to be acquired by adverse
possession, possession must be: (1) hostile, meaning under a claim of right"). Sometimes
both formulations are used in the same case. See Whetstone Baptist Church, 381 S.W.3d
at 372-73. "Hostile" and "under a claim of right" are not two separate elements but are one
in the same. Hostility, that is, a claim of right, does not require color of title,4 mistaken
belief, or good faith but only that the claimant acts with the intent to occupy the disputed
property as his own, exclusive of the rights of all others. See Brasher, 483 S.W.3d at 451.
4
In Missouri, "color of title" is generally relevant where an adverse possessor under color of title enters
into actual possession of only part of a tract described in an instrument. Without color of title, the claimant would
only be entitled to adversely possess the part of the tract the he has taken into his actual possession. However, if the
claimant enters and actually possesses only part of a tract under color of title, a court may find that his possession
will extend to the full tract described in the title. See e.g., Moran v. Roaring River Dev Co., 461 S.W.2d 822, 829
(Mo. 1970); see also Section 516.040.
10
Appellants' Point One on appeal only argues that the trial court erred in finding that
the possession was hostile because the DeVores had no "claim of right" by title or otherwise
but instead knew that title to the Disputed Property was held by another. As explained
above, this is not the proper legal standard and does not preclude a finding that the DeVores'
occupancy of the Disputed Property was hostile. A "claim of right" does not depend on
color of title and does not require the claimant to have a good faith belief that he has a legal
right to the property. It only requires that the claimant acts with the intent to occupy the
disputed property as his own, exclusive of the rights of all others.
Appellants do not contest the facts as found by the trial court supporting its
conclusion that the DeVores' possession of the Disputed Property was hostile. The trial
court cited the following evidence as support for its conclusion: (1) the DeVores lived in
and made substantial improvements to the portion of their home located on the Disputed
Property and maintained their yard located on the Disputed Property; (2) the DeVores
mowed into the Wooded Tract of the Disputed Property, including mowing an extensive
trail system, with trails seven to ten feet wide, and maintained them up to the filing of the
petition; (3) the DeVores installed wire pens around brush to protect quail habitats and used
them to train bird dogs; (4) the DeVores hunted on the Disputed Property, placing salt and
mineral blocks and corn thereon and installing a deer stand; (5) the DeVores cut down dead
trees and stacked dead wood on the Disputed Property, and burned various areas; (6) the
DeVores gave permission to the utility company to cut a path through the trees underneath
power lines and the DeVores cleaned up brush and wood left behind after the clearing; (7)
the DeVores harvested walnuts and berries on the Disputed Property, had picnic lunches
11
thereon, and their son played airsoft on the property. There was also evidence that the
DeVores excluded others from the Disputed Property; for example, requiring that their
neighbors who had set up a deer blind on the Disputed Property remove it. Appellants do
not argue that these findings are not supported by the record. We find, as a matter of law,
this evidence is sufficient to support the trial court's finding that the DeVores intended to
occupy the Disputed Property as their own to the exclusion of all others. Further, this
finding was not against the weight of evidence at trial.
Point One is denied.
Point Two
In Point Two on appeal, Appellants argue the trial court erred in quieting title and
awarding a fee simple absolute title by adverse possession to the entire Disputed Property
because the trial court's conclusion that the DeVores' use of the Wooded Tract of the
Disputed Property was "open and notorious" is not supported by substantial evidence, is
against the weight of the evidence, and erroneously declares and applies the law, in that
there is no evidence that the DeVores' use of the Wooded Tract of the Disputed Property
was conspicuous, widely recognized, and commonly known as required by the doctrine of
adverse possession since none of the DeVores' improvements were visible from outside the
property and Appellants had no notice, actual or constructive, of the DeVores' claim of
possession.
The requirement that possession be "open and notorious"
"is satisfied by visible acts of ownership exercised over the premises, such
as maintaining and improving the property." Lancaster v. Neff, 75 S.W.3d
767, 772 (Mo. App. W.D. 2002)(quotation marks and citation omitted). It
12
"is demonstrated by showing that the occupancy on the disputed property
was conspicuous, widely recognized, and commonly known." Bowles v.
McKeon, 217 S.W.3d 400, 405 (Mo. App. S.D. 2007). "This requirement
exists to ensure that the legal owner had cause to know of the adverse claim
of ownership by another." Id. When the land in question "is wild,
undeveloped and covered in woods and hills" what is required to satisfy the
"open and notorious" element may very well be increased. Luttrell v. Stokes,
77 S.W.3d 745, 749 (Mo. App. S.D. 2002).
Schroeder v. Proctor, 280 S.W.3d 724, 727 (Mo. App. W.D. 2009).
On appeal, Appellants do not contest the trial court's finding that the portion of the
Disputed Property consisting of the DeVores' home and yard was open and notorious.
Instead, they contest the trial court's finding that the DeVores' possession of the Wooded
Tract was open and notorious. Accordingly, we will limit our discussion and address the
evidence with regard to the DeVores' possession and use of the Wooded Tract.
The trial court found that the DeVores' possession of the Wooded Tract was open
and notorious as anyone having any claim to the property would have had notice of the
DeVores' claim to the property. The trial court found that the power line path cut into the
Wooded Tract was cleaned up and maintained by the DeVores, which would have been
visible from East Woodson Harris Road. There was testimony, credited by the trial court,
that an entrance to the trail system created and maintained by the DeVores on the Wooded
Tract was also visible from East Woodson Harris Road.
The trial court also made the inference that many of the activities conducted on the
Wooded Tract would have been apparent to persons traveling on East Woodson Harris
Road, including the sounds of mowing, the cutting of wood along East Woodson Harris
Road, including along the Wooded Tract, and smoke from burning on the Wooded Tract.
13
A neighbor also testified that she saw the DeVores maintain the Wooded Tract, including
trimming trees along East Woodson Harris Road. She testified that to her it appeared the
DeVores owned the Disputed Property. Given that the owner of the Disputed Property,
Marjorie Vaughn, lived farther down East Woodson Harris Road and had to pass by the
Disputed Property each time she went to or from her house, the trial court concluded that
Vaughn and the Appellants had constructive notice of the DeVores' claim to the property.
Appellants argue that some of the facts found by the trial court are not supported by
the record. There was testimony from witnesses that the trail system could not be seen
from East Woodson Harris Road. Vandee DeVore, however, testified that the entrance to
the trail system could be seen from the road. The trial court could infer from her testimony
that while it may be difficult to see the trails, at least some portion is visible from the public
roadway and we defer to the trial court's acceptance of this testimony. See Murphy, 289
S.W.3d at 237.
Appellants also argue that the trial court's finding of constructive notice due to
activities on the Wooded Tract, including noises and smells from mowing, the use of a
chainsaw, and burning on the property are speculative. While there was testimony that
these actions occurred on the property, which Appellants do not contest, they argue there
was no evidence that the Appellants actually drove past the property and would have
known these activities were occurring on the Wooded Tract. Appellants' argument must
fail as it is well settled that "the condition of open and notorious conduct does not require
proof that the true owner have actual knowledge of the claim, only that the occupancy be
conspicuous, widely recognized and commonly known." Scott v. Rorebeck, 766 S.W.2d
14659, 664 (Mo. App. W.D. 1989) (citing Teson v. Vasquez, 561 S.W.2d 119, 127 (Mo. App.
1977)).
Knowledge or notice has been held to mean knowledge of all that would be
learned by reasonable inquiry. If actual knowledge is not proved then the
claimant must show an occupancy so obvious and well recognized as to be
inconsistent with and injurious to the real owner's rights that the law will
authorize a presumption from the facts that he had such knowledge.
Stratford v. Long, 430 S.W.3d 921, 927 (Mo. App. S.D. 2014) (internal citations and
quotations omitted). It was a reasonable inference that the DeVores' actions on the Wooded
Tract would have provided notice to Marjorie Vaughn, and subsequently to the Appellants,
of the DeVores' claim on the Wooded Tract had there been a reasonable inquiry.
The cases cited by Appellants in support of their argument that the facts here are
insufficient to show open and notorious possession are factually distinct from the case at
bar. In Teson, the court found the possession by the claimant was not open and notorious
because his presence on the disputed wooded property was only "sporadic" and "confined
to small areas which he could clear with hand equipment." 561 S.W.2d 119, 130 (Mo.
App. 1977). The property was densely covered with trees, and the progress he made
clearing the property was not visible. Id. Unlike Teson, here we have continuous
possession and use of the property and testimony that at least some of the improvements
made on the property were visible from a public road. The improvements certainly would
have been obvious had the Appellants visited the property.
Appellants also cite Moore v. Dudley, a case in which the claimant sought to
adversely possess seventeen acres of woods. 904 S.W.2d 496, 497 (Mo. App. S.D. 1995).
The property was remote with no buildings or houses nearby. Id. In that case, claimant
15
did many of the same things as in the present case, including clearing underbrush, blazing
and painting trees, grading rough roads, hunting, riding horses, and driving vehicles on the
property. Id. at 498.
It is vital to remember that
[a]dverse 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) (quoting Kitterman, 924
S.W.2d at 876). Contrary to Moore, the land in question in this case was not remote. Part
of the DeVores' property was actually built on the Disputed Property and the Wooded Tract
was adjacent to their home. The record owners of the Disputed Property did not live far
away but rather had to pass by the Disputed Property, including the Wooded Tract, nearly
every day. While in Moore the court held that the trial court could have found that actions
of the claimant were insufficient to show open and notorious possession due in large part
to the remoteness of the property, the character of the Disputed Property and Wooded Tract
in this case are sufficiently distinct as to warrant a different outcome.
Given the circumstances here, we agree that there was sufficient evidence from
which the trial court could find the DeVores' possession and use of the Disputed Property,
including the Wooded Tract, was open and notorious. For a period of twelve years the
DeVores treated the Disputed Property as their own. Their home was built on a portion of
the Disputed Property and another portion was used and maintained by them as a yard. The
remainder of the Disputed Property, the Wooded Tract, was used solely by the DeVores.
16
They used the Wooded Tract as one would expect for an undeveloped piece of land. They
cut a network of trails through the property, trimmed trees, cleaned up debris, made the
property safe by fencing off an open well, hunted, installed hunting apparatuses, and
excluded others from the property. Neighbors testified that they never saw anyone else on
the property and that the DeVores treated it as their own. Some of the DeVores' actions on
the property were visible, such as a constructed trail through the Wooded Tract and the
clean-up and maintenance of a large swath of cleared property under a power line created
by the utility company. Some things were not visible from the road but also would have
put the Appellants on notice, including burning, the use of a chainsaw to maintain the
property, and mowing. These actions could have been discovered by the Appellants
through reasonable inquiry, especially in light of the fact that Marjorie Vaughn, until her
death, would have had to travel past the Wooded Tract to get to her home, and the
Appellants would have had to do the same each time they visited Marjorie Vaughn's home.
The trial court's finding that the Appellants had constructive notice of the DeVores' claim
and possession of the Disputed Property, including the Wooded Tract, is supported by the
record and not against the weight of the evidence.
Point Two is denied.
Conclusion
The judgment of the circuit court is affirmed.
__________________________________
Gary D. Witt, Judge
All concur
17