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Tiemann v. Nunn

Court of Appeals of Missouri, Eastern District, Northern Division

August 2, 2016

ROGER and NANCY TIEMANN, Plaintiffs/Respondents
v.
MARION E. NUNN, et al, Defendants, and RANDALL and MARSHA LITTLE, Defendants/Appellants.

         Appeal from the Circuit Court of Marion County Hon. Rachel Bringer Shepherd

          OPINION

          LISA VAN AMBURG, JUDGE

         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.

         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 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 ...


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