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Soderholm v. Nauman

Court of Appeals of Missouri, Western District, Second Division

April 21, 2015

DOROTHY J. SODERHOLM AND BEVERLY A. SODERHOLM, Appellants,
v.
DUANE L. NAUMAN AND MARTHA ANN NAUMAN, Respondents

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[Copyrighted Material Omitted]

Page 612

Appeal from the Circuit Court of Holt County, Missouri. The Honorable Roger M. Prokes, Judge.

Robert E. Sundell, Maryville, MO, and Terry K. Barber, Pro Hac Vice, for appellants.

Keith J. Schieber, St. Joseph, MO, for respondents.

Before Division Two: Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge. All concur.

OPINION

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Cynthia L. Martin, Judge

Dorothy J. Soderholm and Beverly A. Soderholm (the " Soderholms" ) appeal a trial court judgment which concluded that Duane L. Nauman and Martha Ann Nauman (the " Naumans" ) acquired .6 acres of the Soderholms' property through adverse possession. The Soderholms assert that the trial court erred by (1) failing to consider their motion to reopen the evidence following remand from an earlier appeal; (2) refusing to permit admission of official aerial photos into evidence; (3) determining a boundary location for the adversely possessed tract without a further evidentiary hearing; (4) concluding that the Naumans established each element of adverse possession because the judgment was not supported by the evidence given a dispute about the boundary location; and (5) failing to conclude that the Naumans were estopped to assert adverse possession. Finding no error, we affirm.

Factual and Procedural History

This case is on appeal for a second time. In Soderholm v. Nauman, 409 S.W.3d 382 (Mo. App. W.D. 2013) (" Soderholm I " ), we reversed the portion of the trial court's judgment which found that the Naumans failed to establish certain essential elements of an adverse possession claim involving a .6 acre tract of land.[1] We remanded the case for further findings.

Proceedings Prior to Remand[2]

The parties dispute ownership of a strip of approximately .6 acres of farm land in Holt County, situated between the Soderholms' and Naumans' properties (the " Soderholm Tract" and the Nauman Tract," respectively). The Soderholm Tract is a twenty-eight acre parcel generally located immediately west of the north-south center line of Section 1, Township 62, Range 39. Squaw Creek is the tract's west property line. The northern portion of the Soderholm Tract's east property line abuts the Nauman Tract. The southern portion of the Soderholm Tract's east property line abuts a parcel owned by the Corbin Family (the " Corbin Tract" ).

The Nauman family originally owned the Soderholm Tract. In 1952, Glen and Thelma Nauman, Duane Nauman's parents, conveyed the Soderholm Tract by warranty deed to John and Julie Andes. John and Julie Andes deeded the tract to Lucy Andes in 1958. Lucy Andes owned the tract from 1958 to 1996 and leased it to Pete Nauman, a distant relative of Duane Nauman, from 1973 to 1996 to farm. In 1996, the tract was conveyed to the Soderholms, a transaction that was negotiated with the assistance of John Schoonover. No survey of the tract was prepared at the time of the Soderholms' purchase. The Soderholms leased the tract to Schoonover from 1996 to 2006 to farm. In 2006, the Soderholms began leasing the tract to Ryan Meyerkorth.

Duane Nauman's parents owned the Nauman Tract until 1981, when Thelma Nauman conveyed the tract by quitclaim

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deed to Duane Nauman and his brother Glen Nauman. Glen Nauman conveyed his interest in the Nauman Tract to Duane and Martha Nauman by quitclaim deed in 1993.

The property dispute between the Soderholms and the Naumans began in 2007 after the Soderholms ordered a survey of the Soderholm Tract. The survey revealed that the true boundary between the Soderholm Tract and the Nauman Tract was approximately forty-five feet east of the property line claimed by the Naumans. The strip of land between the true property line and the property line claimed by the Naumans contains about .6 acres.[3]

In August 2010, the Soderholms filed suit against the Naumans seeking to quiet title in the .6 acre tract. The Naumans responded with a counterclaim seeking adverse possession of the .6 acre tract. The Soderholms generally denied the Naumans counterclaim but did not assert any affirmative defenses to the claim of adverse possession. The matter proceeded to a trial to the court on December 7, 2011.

At trial, Duane Nauman testified that, sometime between 1954 and 1956, John Andes carved a ditch that began at the north side of the Soderholm Tract. The ditch ran north to south between the Soderholm Tract and the Nauman Tract and was intended to prevent dirt from washing down onto the Soderholm Tract. Duane Nauman said that he and John Andes treated the ditch as the property line between the tracts. The ditch was located about forty-five feet west of the true property line revealed by the 2007 survey. Duane Nauman said there was never a fence line between the tracts but that over time trees grew up on the Soderholm side of the ditch. About ten years before trial, Duane Nauman said he had the trees bulldozed because they had begun to encroach upon the Nauman Tract. Duane Nauman testified that he and Glen Nauman farmed the .6 acre tract since at least 1981. Duane Nauman said that he alone farmed the .6 acre tract after he acquired Glen Nauman's interest in the Nauman Tract in 1993 and that no one other than the Naumans claimed ownership of the .6 acre tract between 1981 to 2007. After the 2007 survey, Meyerkorth (the Soderholms' tenant) attempted to plant crops on the .6 acre tract up to the true boundary, but Duane Nauman testified that on each occasion, he would remove Meyerkorth's crops and plant his own crops on the tract.

Pete Nauman testified that either a hedgerow or tree line marked what he believed to be the property line between the Soderholm Tract and the Nauman Tract when he leased the Soderholm Tract from Lucy Andes between 1973 to 1996. Pete Nauman said he never had a dispute or even a conversation with Duane Nauman about where the property line between the tracts was located. He said there was no need to do so, as no one disagreed with the location of the property line. Pete Nauman's testimony about the location of the hedgerow or tree line was consistent with Duane Nauman's testimony about the location of trees that grew up on the Soderholm side of the ditch created by John Andes in the mid-1950's.

Schoonover testified that there was an old fence line between the Soderholm Tract and Nauman Tract when he helped the Soderholms purchase the tract in 1996. Schoonover said the old fence line was overgrown with trees and brush and that after the Soderholms bought the property,

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he farmed right up to the fence line. Schoonover said he never had a dispute or even a discussion with Duane Nauman about where the property line was located because there was no question about the boundary between the two tracts. Schoonover's testimony about the location of the fence line overgrown with trees and brush was consistent with Duane Nauman and ...


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