Opinion
No. 41773.
December 11, 1950.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, JOHN A. WITTHAUS, J.
Michael J. Ebeling, St. Louis, for appellants.
Edgar G. Boedeker, and Boedeker Weil, all of Clayton, for respondents.
This is an action to determine the ownership of a strip of land which is a part of Lot 27, Block 1 of Acmar Place, St. Louis County, Missouri. The disputed strip is 160 feet long, fronting 5.25 feet on Woodson Road and widening to 14.7 feet at the west line. Lot 27 where it abuts on Woodson Road is 79.48 feet wide. It is 160 feet long on the south where the line runs due east and west. On the west side the lot is 161.77 feet and the line runs due north and south. The north boundary line runs in a northwesterly and southeasterly direction and is 181.01 feet long. Plaintiffs claim the strip in dispute by adverse possession. The defendants who own the northern portion of the lot claim the disputed parcel of land by deed. The trial court entered a decree for plaintiffs and the defendants appealed.
The evidence disclosed the following: In 1944 plaintiffs purchased from Edgar Gilbert and his wife the south forty feet of Lot 27 of Block 1 of Acmar Place and have since that time lived in the house located thereon. A fence, which was about 86 feet in length, ran from the rear line of the lot to about the center thereof. This fence began at a point 54.7 feet north of the southwest corner of Lot 27. A driveway extended west from Woodson Road; the south line of this driveway at Woodson Road was 45.25 feet north of the southeast corner of Lot 27. Plaintiffs' home extends over the north line of the forty foot lot and onto the disputed strip; at one point it extends about 2 feet 10 inches, at another 1 foot 10 inches, and at another place 1 foot 4 inches. There is a sidewalk on this strip which was built and used by plaintiffs.
Plaintiff Lester M. Morrow testified that when he purchased the property the fence and the driveway were represented to him as being the north boundary line; that after he moved to the place he used the disputed strip of ground, not occupied by the house and sidewalk, as garden and lawn; that the defendants made no claim to any portion of the strip until the defendants had the land surveyed in May, 1947; that thereafter the defendant Bower P. Elmore informed plaintiffs to stay off the disputed strip. Plaintiff Lester M. Morrow testified that after he moved to the place he and the defendant Bower P. Elmore agreed to remove the old fence and to build a new one in partnership but that the latter was not done.
Mrs. Gilbert testified that she and her husband lived on the place which they sold to plaintiffs from 1924 until plaintiffs took possession in 1945; that during all that time the fence and driveway were considered to be the north line; that the owners of the north part of Lot 27 constructed a garage on the line with the fence; that at one time there was an iron stake where the fence had been.
The defendant Bower P. Elmore testified that he purchased the north part of Lot 27 in January, 1944, and had lived there since that time; that he claimed what his deed called for, that is, 39.48 feet on Woodson Road (on the east) and 121.77 feet on the west. He testified that the old fence became an eyesore so he and plaintiff Lester M. Morrow agreed to take it down, but that they did not know where to put a new fence until a survey was made; that he had the land surveyed and put up his own fence along the line thereby established; that plaintiffs stated they did not know where the line was.
The trial court found for the plaintiffs and the evidence fully justified the court's decree. The evidence justifies a finding that plaintiffs and their grantors have been in the actual, open, exclusive, hostile, and notorious possession of the strip of land in question since 1924. The disputed strip of ground was used as garden and lawn. 2 C.J.S., Adverse Possession, § 28, p. 543. But more important, a portion of the home was located on this strip and a sidewalk was constructed thereon. Such possession was hostile and inconsistent with any other theory than a claim of ownership. 2 C.J.S., Adverse Possession, §§ 25, 26, p. 539; Vogt v. Bergmann, Mo.Sup., 189 S.W. 1166; State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, loc. cit. 176(4) (5-8).
The defendants in their brief cited Courtner v. Putnam, 325 Mo. 924, 30 S.W.2d 126; Horton v. Gentry, 357 Mo. 694, 210 S.W.2d 72; and Freed v. Greathouse, 238 Mo.App. 470, 181 S.W.2d 41. In Freed v. Greathouse, supra, the court held that where the use of land is permissive in its inception, the possession will not become adverse until a distinct, positive assertion of hostility is made. We find no evidence in this record that plaintiffs', or their grantors', possession was permissive. In Horton v. Gentry, supra, this court reversed and remanded a judgment based upon adverse possession because the evidence did not justify a finding of adverse possession for the statutory period. The law as written in that case is in harmony with our conclusion in this case. The same is true of the case of Courtner v. Putnam, supra. This court held that the evidence failed to support the defendant's claim that his possession was hostile.
A review of the evidence convinces us that the trial court correctly decided the case. The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.