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Kinder v. Calcote

Court of Appeals of Missouri, Western District, First Division

January 9, 2018

MICHAEL AND LINDA KINDER, Respondents,
v.
RALPH AND TAMMY L. CALCOTE, Appellants.

         Appeal from the Circuit Court of Boone County, Missouri The Honorable Jeff Harris, Judge

          Before Cynthia L. Martin, P.J., James Edward Welsh, and Karen King Mitchell, JJ.

          James Edward Welsh, Judge.

         Ralph and Tammy Calcote appeal the circuit court's judgment quieting title to a 1.22 acre tract of land based upon a finding of adverse possession in favor of Michael and Linda Kinder. We affirm.

         Background

         In April 2015, the Kinders filed a petition seeking to quiet title to a tract of land (the "Disputed Tract") situated between their property and property owned by Ralph and Tammy Calcote. The Kinders claimed to have acquired ownership of the Disputed Tract via adverse possession.[1] The Calcotes filed a counterclaim seeking a declaration that they own the Disputed Tract and an injunction preventing the Kinders from entering upon it.

         At a bench trial in December 2016, both Michael and Linda Kinder testified, and they presented the testimony of Michael's father (Julius Kinder) and of Jerry Johnson, whose family previously owned the Calcotes' property. Ralph and Tammy Calcote also testified. The evidence presented showed that the "Kinder Property" consists of a residence and 43 acres of mostly wooded property. Julius Kinder purchased the property in 1965 and built a home on it a few years later. He owned the property until 1985, when he transferred it to his son, Michael.[2]In a series of conveyances, between 1985 and 1988, Michael acquired title to the residence and the entire 43 acres. In December 1995, Ralph and Tammy Calcote acquired the "Calcote Property, " which consists of 16.22 acres of undeveloped real estate that is contiguous to the entire eastern edge of the Kinder Property.

         The "Disputed Tract" is a long, thin triangular strip of land, 1.22 acres in size, which sits between the Kinders' 43 acres to the west and the Calcotes' 16.22 acres to the east. The property is primarily wooded, and there are remnants of an old fence running north and south along its eastern edge. The Kinders' driveway and a portion of their yard are located on the southern part of the Disputed Tract. A dirt road bed just west of the old fence runs from the Kinders' driveway up to the northern reaches of the Kinder Property where it then turns to the west. According to surveys commissioned by both the Kinders and the Calcotes, the Disputed Tract is included in the Calcotes' 16.22-acre tract.

         The Calcotes also own 50 acres of property, which they acquired in 1993, that borders the Disputed Tract on the north. In 1998, the Calcotes built a home there, which sits approximately 80 to 100 yards from the Disputed Tract's northern border. The Calcotes testified that they have since maintained the northern part of the Disputed Tract by planting trees, mowing, and putting in a garden and have used it to store firewood, mulch, compost bins, and a utility shed.

         At trial, both sides claimed never to have seen the other using the Disputed Tract between 1993 and 2003. In 2003, Ralph Calcote observed Linda Kinder attempting to place a fence in the northern part of the Disputed Tract to contain her horses. Ralph approached Linda and told her that the property she was attempting to fence was his property. Until then, no one had asked the Kinders to stay off the Disputed Tract or suggested that it was not their property. The Calcotes contacted the Sheriff's department to keep the Kinders off the Disputed Tract.

         In 2007, the Calcotes obtained a survey showing that the Disputed Tract is included in the legal description of their 16.22 acres. The Kinders obtained a survey in 2010 which showed the same. In 2014, the Calcotes hired a contractor to move a cabin built by Julius Kinder out of the northern part of the Disputed Tract. Michael Kinder testified that the cabin was badly damaged in the process of moving it.

         On March 7, 2017, the circuit court entered judgment in favor of the Kinders. The court found that the Kinders had "established each and every element" of their adverse possession claim (Count I) and awarded them title to the Disputed Tract, "except to the extent that the disputed area includes [the Calcotes'] garden and shed at the north end." The court also found in favor of the Kinders on their action for ejectment (Count II) and ordered the Calcotes

to immediately remove any obstacles located or placed in the Disputed Strip by [them], except to the extent that the Disputed Strip includes [their] garden and shed. The Court further orders that [the Calcotes] shall have appropriate and reasonable ingress and egress to their garden and shed if ingress and egress paths or routes are located in the Disputed Strip.

         The court found that Michael's testimony regarding damages to the cabin was not credible and denied the Kinders' other two counts. The court denied the Calcotes' counterclaims.

         Discussion

         The Calcotes raise two points on appeal, in which they argue that the trial court erred in awarding the Kinders fee simple title to the Disputed Tract north of the Kinders' yard based on a finding of adverse possession.[3] They contend that "there was no substantial and competent evidence to support the court's findings and conclusions" as to two elements of adverse possession: ...


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