Section 2 Actual

• Library: Real Estate Fundamentals 2011

The first element is actual possession or possession under color of title. For a claimant to establish actual possession, two concepts are relevant. The claimant must establish the claimant’s present ability to control the land and intent to exclude all others from control. Miller v. Warner, 433 S.W.2d 259 (Mo. 1968); Hamburg Realty Co. v. Walker, 327 S.W.2d 155 (Mo. 1959). When occupancy of land is without color of title, the claimant must show physical possession of the entire tract to prevail. Wykle v. Colombo, 457 S.W.2d 695, 700 (Mo. 1970) (no constructive possession when color of title was lacking). There must be continual acts of occupying land such as clearing, cultivating, pasturing, erecting fences or other improvements, and paying taxes on the land. The payment of taxes, however, does not create title, and nonpayment of taxes does not in itself divest title. City of South Greenfield v. Cagle, 591 S.W.2d 156, 161 (Mo. App. S.D. 1979). The pasturing of cattle or the cutting of timber in themselves do not establish adverse possession, but these acts do tend to show a claim of ownership. Heide v. Sheeks, 682 S.W.2d 877, 880 (Mo. App. S.D. 1984). The claimant must assert an unequivocal...