Opinion
No. 106,468.
2012-06-8
Jesse D. KINDER and Holly Ann Kinder, Husband and Wife; and Larry D. Kinder and Marylou E. Kinder, Husband and Wife, Appellees/Cross–Appellants, v. SUGAR CREEK PARTNERS, LLC, Richard T. Hale and Shirley J. Hale, Husband and Wife, Appellants/Cross–Appellees.
Appeal from Linn District Court; Richard M. Smith, Judge. Timothy P. Orrick and Paul G. Schepers, of Orrick and Erskine L.L . P., of Kansas City, for appellants/cross-appellees. Jesse T. Randall, of Mound City, for appellees/cross-appellants.
Appeal from Linn District Court; Richard M. Smith, Judge.
Timothy P. Orrick and Paul G. Schepers, of Orrick and Erskine L.L . P., of Kansas City, for appellants/cross-appellees. Jesse T. Randall, of Mound City, for appellees/cross-appellants.
Before GREEN, P.J., MALONE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is an adverse possession case stemming from a dispute over land in Linn County, Kansas. The district court ruled that Jesse, Holly, Larry, and Marylou Kinder acquired title to the land by adverse possession. The Kinders also sought money damages from Richard and Shirley Hale, the adjoining property owners, because Richard Hale had removed a fence on the disputed land prior to the petition to quiet title, but the district court denied the claim for damages. The Hales and their farm partnership, Sugar Creek Partners, LLC (Sugar Creek), appeal the district court's decision granting title to the Kinders. The Kinders cross-appeal the denial of their claim for money damages. For the reasons set forth herein, we affirm the district court's judgment.
In 1944, Harriet S. Hamilton deeded to Clyde and Shirley Brownback real property including “[t]he South half of the Southwest Quarter in Section Eleven ... in Township Twenty one, Range Twenty one, in Linn County, Kansas.” In 2000, the Hales, obtained ownership of the north half of the southwest quarter in Section 11. Thus, the southern boundary of the Hales' land abuts the northern boundary of the Brownbacks' land. A meandering fence runs in part on the recorded boundary line and in part on the land deeded to the Hales. The fence has existed since at least the 1940s. The disputed land lies between the fence and the recorded boundary line between the two properties, consisting of 2.09 acres.
The Brownbacks and their family lived on and farmed their land until Shirley died in 1992; Clyde continued living on the farm until 2001, and he owned the land until his death in 2005. Marylou Kinder is Clyde and Shirley Brownback's daughter, and Larry Kinder is her husband; Jesse Kinder is Marylou and Larry Kinder's son, and Holly Kinder is Jesse's wife. Marylou was born and raised on the farm and has been involved in its operation throughout her life, except for a 3–year period when she lived in Kansas City. After Marylou married, she and Larry both worked on the farm.
Marylou testified that her family always maintained and worked on the fence and that she did not remember anyone else working on the fence. Mary Lou testified that Clyde referred to the fence as the Talbot fence because the land on the other side of the fence was called the Talbot place. On cross-examination, however, Mary Lou changed her testimony and said Clyde referred to it as “the fence between us and the Talbots.” Larry testified that he had been to the fence and repaired it many times. Jason Kinder, Jesse's brother, testified that Clyde had pastured cattle up to the fence line as long as he could remember. Beginning in 2001, when Clyde moved into a nursing home, Jesse, Jason, and Larry rented the family farm and continued to pasture cattle on the disputed land. Jesse testified that as part of working the farm, he walked the fence line and performed necessary maintenance and repairs on the fence.
In 2001, Larry attempted to contact Richard Hale to talk about the fence. Larry wanted to get permission to cross Hale's land from the north in order to have easier access to work on the fence. At that time, Larry saw that part of the fence in question had been torn down; 50 to 100 yards of the western end of the fence ran along a steep embankment and the wire in that portion of the fence had been removed. Larry, Jesse, and Jason decided not to repair the fence over the embankment because they did not believe that cattle would be able to get up the embankment and escape. Larry testified that he did not talk to Hale about the fence or object to its removal.
In October 2005, after Clyde died, Marylou, as executrix of his estate, sold the land to Larry and Jesse. Larry was later removed from the title to the land. Marylou testified that she believed Clyde owned all of the land to the fence line and that was what she thought she sold to Jesse. Jesse testified that he thought he was purchasing the land “[b]asically fence to fence,” although he admitted that the language of the deed did not include the disputed property.
On March 30, 2006, the County Commissioners of Linn County conducted a fence viewing at Jesse's request. The fence viewers made no finding whether the fence was a partition fence or whether the fence existed as an interior fence to one of the properties. The commissioner's report indicated that: “[i]t appears that some portions of the fence depart significantly from the property line, but the viewers make no finding as to the location of the fence in regard to the property line.” On or about June 15, 2006, Richard Hale hired the firm Allenbrand–Drews & Associates to survey his land and establish the property line; the survey was filed with the Register of Deeds on or about June 29, 2006. The survey showed that the Kinders' property did not include the disputed land.
From 2005 to 2008, Jesse rented the land to Stillwater Cattle Company. Richard Hale alleged that in June and July 2006, cattle came onto his property, destroying crops worth approximately $10,000. Hale claimed that he wrote a letter to Jesse and Larry dated October 11, 2006, telling them to stop all trespass on his land and to build a fence on the surveyed boundary to contain the livestock. Jesse testified that neither he nor his parents heard anything from Hale about livestock coming onto his property until 2009.
In 2009, Jesse rented his land to Rocking Arrow Cattle Company. On July 3, 2009, Marylou received a phone call from Richard Hale, who was trying to get Jesse's telephone number to complain about cattle being on his land. When Jesse drove out to the east end of the fence, he saw that the wire on the fence had been removed. When Hale reached him to complain about the cattle, Jesse asked Hale why the fence was down. Hale responded that he didn't “need no fence on my property.” Jesse testified that he asked Hale if he needed to hire an attorney, and Hale replied that if Jesse hired an attorney, Hale had “ways of making [him] pay.” The following week, Jesse built a temporary electric fence to replace the torn-down fencing. Later that month, Jesse obtained a survey of the land from James Schmitz. Schmitz located the fence line by marking locations of the fence posts. Schmitz later testified that there was barbed wire in place on parts of the fence, but most of the wire was on the ground.
On October 26, 2009, the Kinders filed a quiet title petition in Linn County District Court, naming Sugar Creek and the Hales as defendants. The Kinders claimed ownership of the disputed land through adverse possession and requested money damages in the amount of $9,577 for the removal of the fence and the cost of building the temporary fence. The Kinders later amended their petition to claim additional damages totaling $17,209. The Hales filed an answer to the quiet title petition, raising multiple affirmative defenses. The Hales also filed counterclaims and cross-claims for declaratory judgment, injunctive relief, trespass, and $58,000 in money damages. The Kinders filed an answer to the Hales' counterclaims, also claiming numerous affirmative defenses. The parties filed trial briefs and ultimately agreed to dismiss a majority of the Hales' counterclaims, leaving only a request for declaratory judgment that the Allenbrand–Drews survey established the boundary line.
The trial commenced on September 28, 2010. After hearing the evidence, the district court took the matter under advisement and filed its decision on March 1, 2011. The district court granted the Kinders' petition to quiet title in their favor based on adverse possession. As part of a very detailed decision, the district court stated:
“Clyde and Shirley Brownback purchased the south half of the quarter section in 1944. They purchased this tract along with others and operated a farm on this property.... Clyde and Shirley had several children including Mary Lou (Brownback) Kinder, mother of plaintiff Jess Kinder. Mary Lou was born and raised on this farm. She was involved in the operation of the farm since early childhood. She testified that her family always maintained the fence now in dispute. She testified that the disputed area was used by her family during the entire time period her father farmed and that they believed that they owned the property up to the fence line.”
The district court further stated:
“The clear and convincing evidence is that the plaintiffs and their predecessors in title ... have been in open, exclusive and continuous possession [of] all land south of the existing fence line from 1944 until 2002....
“... The evidence is that from taking possession of the real estate in 1944 [,] Brownbacks and Kinders pastured cattle on all of the disputed area, maintained the fence line as their own, leased the premises including the disputed area on two separate occasions (Clyde to Jess and Jess to Rock Creek [ sic ] ) and always considered the land as belonging to them. While there was no direct evidence of Clyde and Shirley's belief of ownership, as they have been deceased for some time, there is substantial circumstantial evidence from their daughter, Mary Lou, who was intimately involved in their operations from childhood. This evidence is uncontroverted and it is clear that Clyde and Shirley treated the land as their own .”
The district court denied the Kinders' claim for money damages related to the removal of the fence for three reasons: (1) the evidence was not sufficiently clear to establish the claimed damages; (2) the Kinders did not object to Richard Hale's actions on prior occasions although they knew he was removing fence; and (3) it would be inequitable to award damages to the Kinders for actions taken by Richard Hale who, at the time, was the record title owner of the property. The journal entry was filed on June 29, 2011. The Hales timely appealed the decision granting title to the Kinders, and the Kinders timely cross-appealed the denial of their claim for money damages.
Hales' Appeal on Adverse Possession
The Hales challenge the district court's decision granting the Kinders' petition to quiet title to the disputed land based on adverse possession. The Hales argue that under K.S.A. 58–2222, the filing of the deed imparts public notice of the correct property lines; thus, Clyde Brownback is presumed to have known he did not own the disputed land and therefore he could not have had a good-faith belief in ownership. The Hales further argue that the Kinders failed to introduce clear and convincing evidence of a good-faith belief of ownership for the statutorily required 15–year period. Specifically, the Hales assert that the Kinders failed to show that Clyde had a good-faith belief as to his ownership of the disputed land and, since the Kinders did not purchase the property until 2005, Clyde's belief must be proved in order to meet the 15–year time requirement. The Kinders, on the other hand, argue that the evidence showed that Clyde had a good-faith belief that he owned the disputed land.
K.S.A. 60–503 addresses adverse possession and states, in relevant part: “No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years.” Prior to a legislative amendment in 1964 which added the option of possession under a belief of ownership, possession had to be notorious and hostile. Stark v. Stanhope, 206 Kan. 428, 432, 480 P.2d 72 (1971.) Since the amendment, an adverse possession claim may be based on either (1) an adverse or hostile holding or (2) a belief of ownership. 206 Kan. at 432. The possession must still be open, exclusive, and continuous for the 15–year period of time. Further, the parties' belief of ownership must be in good faith and must be reasonable. See Wright v. Sourk, 45 Kan.App.2d 860, 865–66, 258 P.3d 981 (2011), rev. denied 293 Kan. –––– (Jan. 20, 2012).
Generally, whether title is acquired through adverse possession is a question of fact to be determined by the trier of fact. “[A] party seeking title by adverse possession must present clear and convincing evidence of the requisite elements found in K.S.A. 60–503. [Citation omitted.]” Wright, 45 Kan.App.2d at 866. Moreover, our Kansas Supreme Court has stated that when a party seeks title by adverse possession, every presumption is in favor of the holder of the legal title and against the claimant. Kansas law does not allow the property of a person to be taken by another upon slight presumptions or possibilities. Stith v. Williams, 227 Kan. 32, 36, 605 P.2d 86 (1980).
On appeal, an appellate court determines whether the district court's findings of fact are supported by substantial competent evidence. In doing so, an appellate court does not weigh conflicting evidence, evaluate witness credibility, or redetermine questions of fact. See Wright, 45 Kan.App.2d at 866. “Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. [Citation omitted.]” Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009).
The Hales first argue that under K.S.A. 58–2222, the filing of the deed imparts public notice of the correct property lines; thus, Clyde Brownback is presumed to have known he did not own the disputed land and therefore he could not have had a good-faith belief in ownership. K.S.A. 58–2222 states that every instrument conveying real estate “in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the register of deeds for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.” The Hales argue that because the 1944 deed by which Clyde acquired title to the property did not include the disputed land, Clyde could not have had a good-faith belief in ownership. Further, the Hales contend that the land described in the deed is obviously rectangular; accordingly, Clyde could not have had a good-faith belief that a meandering, curving fence constituted a boundary.
The Hales' argument about constructive knowledge of property lines under K.S.A. 58–2222 has been rejected by the Kansas Supreme Court. In Wallace v. Magie, 214 Kan. 481, 486, 522 P.2d 989 (1974), the Kansas Supreme Court acknowledged that K.S.A. 58–2222 charges the owner of land with constructive notice of facts disclosed by public records. Nevertheless, the court concluded that constructive notice does not prevent a possessor of land from claiming a good-faith belief of ownership. As the court indicated, “if the rule were otherwise the concept of ‘belief of ownership’ would be obliterated.” 214 Kan. at 486. See also Armstrong v. Cities Service Gas Co., 210 Kan. 298, 311, 502 P.2d 672 (1972) (argument that deed imparts notice of the correct property lines nullifies concept of adverse possession). Under the rationale of Wallace and Armstrong, barring the Kinders' adverse possession claim due to the notice Clyde received from the 1944 deed would nullify the legislature's authorization of a claim based on adverse possession. Likewise, the fact that the deed described a rectangular tract of land while the fence did not follow a straight line does not defeat the Kinders' claim of a good-faith belief of ownership. See also Wright, 45 Kan.App.2d at 874 (following Wallace ).
Next, the Hales argue that the Kinders failed to introduce clear and convincing evidence of a good-faith belief of ownership for the statutorily required 15–year period. The Hales note that the Kinders did not purchase the property until October 2005 and they obtained a survey in July 2009 that showed the property did not include the disputed land; thus, the Kinders' good-faith belief of ownership could only have existed for less than 4 years. Under this analysis, the Hales argue that the Kinders needed to show that Clyde believed he owned the disputed property for the previous 11 years and 3 months in order to meet the 15–year time requirement of K.S.A. 60–503. While the Hales concede that the evidence showed that Clyde grazed cattle on the disputed land and that Clyde and his family maintained and repaired the fence, they argue that evidence does not support the finding that Clyde believed he owned the disputed land. In essence, the Hales take issue with the district court's finding that Clyde's good-faith belief of ownership was supported by “substantial circumstantial evidence.”
As we previously noted, when a party seeks title by adverse possession, every presumption is in favor of the holder of the legal title and against the claimant. Wright, 45 Kan.App.2d at 866. The Kansas Supreme Court has stated that a claim under adverse possession cannot be made by inference. Finn v. Alexander, 102 Kan. 607, 610, 171 P. 602 (1918). Nevertheless, our Supreme Court has long allowed district courts to base factual findings relevant to adverse possession largely on circumstantial evidence. See Wagner v. Thompson, 163 Kan. 662, 667–70, 186 P.2d 278 (1947) (finding there was substantial evidence to support adverse possession where findings were based largely on circumstantial evidence). Further, as the district court noted in its decision, even the highest standard of proof, “beyond a reasonable doubt,” can be proven by circumstantial evidence. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011) (conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deductible therefrom).
Here, Marylou Kinder testified that throughout her life, barring the 3 years she lived elsewhere, she was involved with the family farm. She testified that Clyde always pastured cattle on the property up to the fence line. Jason also testified that he remembered Clyde running cattle all the way up to the fence. Marylou also testified that, as a child, she helped Clyde fix the fence. She testified that Clyde referred to the fence as separating their land from the neighbor's land. The testimony of Marylou and Jason provided strong circumstantial evidence that Clyde had a good-faith belief that he owned the land up to the fence line. Marylou also testified that, as an adult, while Clyde was still alive, she and her husband fixed the fence. She testified that she believed they owned the land up to the fence and that, when she sold the land to Jesse, she thought she was selling him the land up to the fence. Jesse testified that from 2001 to 2009, he walked the boundary and helped repair the fence every spring. He further testified that when he purchased the property, he thought he was purchasing “[b]asically everything that [Clyde] owned [from] fence to fence.”
As the district court stated, all of Clyde's actions as far back as Marylou could remember were consistent with a belief of ownership of the disputed land. While it is true that Clyde could not testify himself, his family's description of his actions established evidence of his good-faith belief of ownership. In deciding whether the district court's findings of fact are supported by substantial competent evidence, this court does not redetermine credibility or reweigh evidence. Wright, 45 Kan.App.2d at 866. We conclude there was substantial competent evidence to support the district court's finding that Clyde had a reasonable, good-faith belief that he owned the disputed land, as did the Kinders, thereby establishing the 15–year time-span required under K.S.A. 60–503.
Cross–Appeal on Damages
In their cross-appeal, the Kinders argue that the district court erred by not awarding damages stemming from Richard Hales' removal of a portion of the fence. The Kinders focus on the district court's finding that it would be inequitable to award damages for actions taken by Hale, who held record title to the disputed land at the time he removed the fence. The Kinders assert that Clyde gained title to the land up to the fence line in 1959, as soon as he had met the requirements of adverse possession for 15 years; therefore, they were title owners prior to the current lawsuit and could maintain a claim for damages. The Hales assert that the district court correctly denied the damages, pointing out that the Kinders took no action to mitigate the damages, even though they were aware of prior removal of parts of the fence.
The district court denied the Kinders' claim for monetary damages because the district court found, in part, that the evidence was not sufficiently clear to establish the claimed damages. A finding that a party did not meet its burden of proof is a negative factual finding. “Our standard of review for a negative finding of fact is that the party challenging the finding must prove arbitrary disregard of undisputed evidence or must prove some extrinsic consideration such as bias, passion, or prejudice.” Hall v. Dillon Companies, Inc., 286 Kan. 777, 781, 189 P.3d 508 (2008).
The district court denied the Kinders' claim for money damages related to the removal of the fence for three reasons: (1) the evidence was not sufficiently clear to establish the claimed damages; (2) the Kinders did not object to Richard Hales' actions on prior occasions although they knew he was removing fence; and (3) it would be inequitable to award damages to the Kinders for actions taken by Richard Hale who, at the time, was the record title owner of the property. In their cross-appeal, the Kinders do not challenge the first two reasons for the district court's denial of their petition for damages. Generally, when the district court offers multiple independent bases for its judgment, the appellant's failure to address an alternative basis for the district court's decision is a sufficient reason to deny an appeal. Greenwood v. Blackjack Cattle Co., 204 Kan. 625, 627, 464 P.2d 281 (1970).
Furthermore, the one case cited by the Kinders to support their cross-appeal, Barrett v. Ninnescah Bow Hunters Ass'n, 15 Kan.App.2d 241, 246–47, 806 P.2d 485,rev. denied 248 Kan. 994 (1991), does not support the Kinders' claim that obtaining title to property by adverse possession entitles a party to recover money damages from the point that all the elements of adverse possession have been met. Barrett concerned an appeal from an order quieting title to disputed property and from a finding that a roadway easement existed in favor of the county. 15 Kan.App.2d at 242. The Barrett court examined whether title gained by adverse possession could pass through an estate; but the court was not concerned with damages or the subsequent use of property by the record titleholder after a party fulfilled the statutory requirements for adverse possession.
Finally, we note that one of the district court's alternative reasons for denying damages, i.e., that the Kinders were aware that Richard Hale removed the fence and did not object, was supported by the evidence. Larry Kinder observed Richard Hale removing part of the fence as early as 2001. Larry testified that he and his sons did not object to Hale's removal of the fence, discussing it among themselves and deciding not to repair the fence. Because there was no objection from the Kinders when Hale removed the fence in 2001, there was substantial competent evidence to support the district court's finding that the Kinders failed to mitigate damages caused by Hale removing the fence.
Affirmed.