defining abandonment of property as a school site under a fee simple determinable as “ ‘a mixed question of intention and act — the intention to abandon permanently and the physical act of nonuser....’”
How later courts described this case
- defining abandonment of property as a school site under a fee simple determinable as “ ‘a mixed question of intention and act — the intention to abandon permanently and the physical act of nonuser....’”
- "The word 'site' normally means 'the place where anything is[.]'"
- “An advisory decree upon hypothetical facts is improper.”
Written by the judges who cited it.
The opinion
STORCKMAN, Presiding Judge
(concurring in part, dissenting in part).
*655 I cannot agree that evidence was sufficient to establish that the school district acquired a fee simple title to the north acre by adverse possession. In my opinion, the school district at most acquired an interest in this tract equivalent to its estate and interest in the south acre.
The south acre was conveyed in 1898 on condition that title would revert to the grantor or his assigns when and .if the school district failed and ceased to use the land for a school site. The majority opinion recognizes this reversionary interest and with that holding I fully concur.
In 1922 a new school building was erected on the south acre and the schoolyard fence was moved so as to include the north acre. At that time toilets were erected on the north acre and playground and other equipment have been added. The use made of the north acre has been incidental to and in conjunction with the south acre as a school site.
In my opinion, the use made of the north acre characterizes and limits the estate and interest acquired by the school district in that tract. As I understand the record, there is no showing that the school district’s possession in the north acre was such as to evidence a claim of title superior to that granted in the south acre. If the title acquired in the north acre is one of fee simple, then the school district can presently use the land for any purpose or sell it free of restriction. This, in my opinion, would be out of harmony with the facts and circumstances in evidence.
In many respects the use made of the north acre is similar to an easement appurtenant, the south acre being the dominant tenement and the north the servient one. 28 C.J.S. Easements § 4, subd. a, pp. 633-634. In such a case, the school district’s estate in the south acre could not be made the subject of a separate grant. 28 C.J.S. Easements § 45, p. 708. Such an casement could be acquired by prescription, 28 C.J.S. Easements § 6, p. 641, which is substantially the same in quality and character as adverse possession, 28 C.J.S. Easements § 10, p. 645. The easement would cease on the termination of the other estate or title. 28 C.J.S. Easements §§ 51 and 54, subd. a, pages 716 and 718; St. Louis-San Francisco Ry. Co. v. Silver King Oil & Gas Co., 234 Mo.App. 589 , 127 S.W.2d 31, 33 .
In no event would I interpret the school district’s possession to be an assertion of title superior to that which it had in the south acre. Whether we look upon the school district’s interest in the north acre as an easement appurtenant or a defeasible, fee, the result would be the same.
The two acres .have been occupied' and used as a unit since 1922 when the new school was built. The defendant introduced in evidence a deed executed in 1925 by the original owner of the north and south acres. This deed excluded from the land conveyed the “two acres in the southeast corner formerly conveyed for school purposes.” Apparently the purpose of this was to show that the use of the north acre was not permissive as contended by the plaintiff. However, this exhibit, also tended to prove that the grantor placed the north acre in the same category with the south acre and the deed to the south acre admittedly had the condition for re-verter if the school district failed or ceased: to use the south acre as a school site.
In discussing the necessity of a claim of title by the adverse occupant, it is stated in 2 G.J.S. Adverse Possession § 55, p. 573, that: “ * * * possession, per se,- evidences no more than the mere fact of present occupation by right and a rightful possession is just as consistent with a lesser interest as with a fee interest in the occupant, * * Collateral circumstances must be taken into consideration in determining the nature and extent of the interest claimed by the party in possession; the presumption of law will be in favor of the adverse claimant only to- the extent shown. Ricard v. Williams, 7 Wheat. 59, 105 , 5 L.Ed. 398 .
*656 The burden of proving' adverse possession was on the school district. Fiorella v. Jones, Mo., 259 S.W. 782 , 785 [5], “The doctrine of adverse possession is to be taken strictly; there are no equities in favor of a person who seeks to acquire the property of another by an adverse holding, and his acts are to be strictly construed.” 2 C.J.S. Adverse Possession § 1, pp. 512-513.
“Adverse possession depends on the intent of the occupant, ordinarily manifested by his acts, to claim title and to hold adversely and exclusively.” 2 C.J.S. Adverse Possession § 7, p. 519. “There must be an unequivocal claim of ownership to make the possession adverse.” Bell v. Barrett, Mo., 76 S.W.2d 394 , 396 [2],
In Crismond v. Kendrick, 325 Mo. 619 , 29 S.W.2d 1100, 1106 [9], a grantee was in possession for the requisite period of time, but she had gone into possession as a life tenant and the evidence was held insufficient to show that her possession was adverse to the remainderman.
In the present case the circumstances are such that I do not think we can indulge in the presumption that the grantor conveyed or that the school district intended to claim a title in the north acre superior to that by which it held the south acre. There was no express claim by the school district of a fee simple title in the north acre and I would not imply one in these circumstances. The conduct of the school district was consistent with a claim of title of the same kind and character that it had in the south acre.
If the school district’s possession of the north acre was of such character as to be adverse to the remainderman, then its possession of the south acre was likewise adverse to the remainderman; but the school district made no such contention.
Having in mind that the burden of proof was upon the school district, and the strict construction' that should be given to its acts on which its title by adverse possession depends, I would hold that a reversionary interest exists in both acres. Otherwise, we will have this incongruous result when and if the south acre is abandoned as a school site. The plaintiff will own the south acre which will be separated from the other 78 acres of his farm by the north acre owned by the school district in fee simple. I do not believe the evidence justifies our saying the parties, or either of them, intended any such result. Rather it seems the parties intended the north acre to be the tail that went with the hide.