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White v. Matthews

Court of Appeals of Missouri, Eastern District, Southern Division

December 27, 2016

KENNETH WHITE and ELEANOR WHITE Appellants,
v.
GEORGE MATTHEWS, Respondent.

         Appeal from the Circuit Court of Madison County 13MD-CC00141 Honorable Robin E. Fulton.

          Lisa P. Page, Judge.

         Kenneth and Eleanor White, husband and wife ("Plaintiffs"), appeal the trial court's grant of summary judgment in their quiet title and trespass causes of action against their neighbor, George Matthews ("Defendant"). We reverse and remand.

         BACKGROUND

         This appeal involves a dispute over ownership of a strip of rural land, consisting of 2.44 acres, running along the common boundary of the two abutting tracts of land owned by Plaintiffs and Defendant. The southern border of Defendant's property ("Tract B") abuts the northern border of Plaintiffs' property ("Tract A"), and the strip of land in dispute apparently runs eastwest between their respective properties ("Tract C").

         1. The Individual Tracts of Land

         Tract A is a parcel of land sitting in Madison County, consisting of approximately 42 acres. For purposes of this appeal, the chain of title of Tract A traces back almost 50 years, and ownership of Tract A was always vested in certain members of the Neighbors Family until acquisition by Plaintiffs.

         First, at some point in the distant past, Jessie and Rose Neighbors, husband and wife, acquired Tract A and began to possess the same. Second and thereafter, upon the death of Jessie and Rose Neighbors (circa mid to late 1990s), [1] ownership of Tract A was vested in Jessie and Rose Neighbors' son, James Neighbors. Third, in March 2009, upon the death of James Neighbors, ownership of Tract A was vested in the brother of James Neighbors, Richard Neighbors, via a beneficiary deed. Fourth, in September 2010, Plaintiffs-who appear to have owned property in close geographical vicinity to Tract A, Tract B, and Tract C for over 40 years[2]-acquired ownership of Tract A from Richard Neighbors.

         Tract B is a parcel of land located in Madison County and rests north of Tract A. In February 1993, Defendant acquired ownership of Tract B, via a quit claim deed.[3]

         Tract C-the disputed property at issue-is a rural strip of land, approximately 2.44 acres in size. Tract C runs east-west, along the common boundaries of Tract A and Tract B. For purposes of this appeal, Tract C has never been a separate piece of land included in its own deed; rather the land comprising Tract C is legally included in the quit claim deed, supra, for Tract B. Alternatively stated, it is undisputed Tract C is not included in the deed for Tract A that was acquired by Plaintiffs in September 2010.

         2. The Alleged Adverse Possession of Tract C

         At some point in time during the course of the Neighbors Family[4] ownership of Tract A, it is undisputed a fence existed between Tract A and Tract B ("Original Fence"). Without dispute, this Original Fence was erected so as to cause Tract A to encompass Tract C. As a result of the Original Fence, the Neighbors Family, up to and including Richard Neighbors, exercised possession of Tract C. However, the record on appeal is void of any evidence regarding any written contract or agreement between any member of the Neighbors Family and Defendant recognizing Defendant's consent for the Neighbors Family to use and possess Tract C.

         Upon a thorough review of the litigants' briefs and the record on appeal, this court is unable to find any evidence in the record to determine the year in which the Original Fence was erected or the individual who erected and/or maintained the Original Fence. The record is also silent as to the purpose for the placement of the Original Fence. Nevertheless, Defendant appears to argue the Original Fence was a fence of "convenience;" whereas Plaintiffs did not and do not plead any rationale for the location of the Original Fence.[5] As discussed, infra, the foregoing produces a firm impression with this court that genuine issues of disputed fact, indeed, require resolution.

         On June 16, 2010, in preparation of selling Tract A, -prior to Plaintiffs' acquisition of Tract A-Richard Neighbors (then, the current owner of Tract A) commissioned a land survey so as to verify the property lines. The land survey revealed the Original Fence incorrectly demarcated the property lines of Tract A and Tract B. At the request of Richard Neighbors, Defendant removed the Original Fence and constructed a new fence along the proper property lines, as set forth in the land survey ("New Fence").

         Defendant claims the construction of the New Fence was performed prior to Plaintiffs' acquisition of Tract A. On the contrary, Plaintiffs presented evidence that conflicted with Defendant's assertions and evidence. First, Plaintiffs pled Richard Neighbors, in 2009 and in the presence of Defendant, represented to Plaintiff Kenneth White the Original Fence demarcated the accurate property line for Tract A. Second, during his deposition, [6] Plaintiff Kenneth White revealed he had inspected Tract A prior to the sale, and at the time of that inspection the Original Fence was standing. These two separate facts resulted in Plaintiff Kenneth White purportedly believing Tract C was included in Tract A when he purchased the same, even though Tract C was not included in the deed of Tract A. Upon a thorough review of the litigants' briefs and the record on appeal, this court is unable to determine the date on which the New Fence was erected and whether the New Fence was constructed prior to Plaintiffs' acquisition of Tract A.

         3. Procedural Background

         Almost three years after the purchase of Tract A, in July 2013, Plaintiffs commenced a cause of action for quiet title and injunction against Defendant, claiming they were the rightful owners of Tract C-the 2.44 acres of land between the New Fence and where the Original Fence stood. Plaintiffs averred Tract C should be awarded to them because their ...


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