¶1(concurring).
¶2I have concluded to concur in the result reached by the principal opinion herein.
¶3The evidence shows that G. A. John, the grantor of defendants, acquired a deed to a 16.71 acre tract from the heirs of Ellen T. Selby on March 16, 1958. That deed described by metes and bounds a tract to which the Ellen T. Selby heirs had record title and which was located adjacent to and immediately south of Block 30 in Ashland. The deed did not describe any part of Block 30.
¶4When Mr. John undertook to purchase the land in question, he realized that a question existed as to the boundary line between the Selby tract and that owned by the plaintiff in Block 30. Accordingly, Mr. John and the Selby heirs had a survey made. It disclosed that the fence to which the principal opinion refers was actually north of the south line of Block 30. Mr. John’s attorney then sought to obtain a quit claim deed from the Selby heirs to the land which lay north of the south line of Block 30 and south of the fence line in question but the Selby heirs refused to give that deed.
¶5The principal opinion holds that the evidence was sufficient to establish title by adverse possession in Ellen T. Selby to the disputed strip of land lying between the fence and the south line of Block 30. That holding is in accordance with the decree of the trial court and I do not disagree that the evidence is sufficient to support and justify such conclusion.
¶6The crucial question herein is whether the interest of Ellen T. Selby in that tract was transferred by her heirs to Mr. John, and thence to defendants. This question necessarily must be decisive because the *748combined period of possession of Mr. John and the defendants is less than ten years.
¶7In my view the applicable rule is that stated in Lurvey v. Burrell, Mo., 317 S.W.2d 458, 461, as follows: “It is a well established rule of law that there must be a conveyance of property claimed by adverse possession by some act (by gift or otherwise) in order to effectuate a transfer of such property from the adverse holder to the grantee. Absent this, there can be and there is no transfer to the grantee of any right acquired by the grantor.”
¶8Lurvey v. Burrell involved a situation in which title to a 10-foot wide strip was in dispute. Defendants in that case held record title to the strip and plaintiffs claimed title by adverse possession to an existing fence which the survey showed to be 10 feet within defendants’ tract. Plaintiffs’ predecessor in title had received a deed which did not include the 10-foot strip in the metes and bounds description used therein.
¶9Division One of this Court held in Lurvey v. Burrell that plaintiffs’ grantor did not acquire title to the disputed 10-foot strip. As a result plaintiffs did not have title thereto. The Court said, 317 S.W.2d l.c. 461-462: “In the case before us, the deed not only did not include the land in question but after both grantor and grantee were fully aware of the situation, the grantor knowingly did not include the disputed area in the deed and the grantee with knowledge of that fact accepted the deed. Furthermore, one of the grantors was a witness called by the plaintiffs and she testified that it was not intended that the land in dispute be conveyed. In such circumstances, the grantor in this case did not acquire any interest in the 10-foot strip and hence could not convey any to the plaintiffs.”
¶10In the case presently on appeal, one of the grantors (Mrs. Pauley), who conveyed to Mr. John, testified that she understood that the grantee would take the land as it was then fenced. (This would include the disputed strip.) She said that this was what she thought she sold. In this important aspect, the facts herein differ from those in Lurvey v. Burrell as set out above. That difference provides a basis on which the trial court herein could conclude that the Selby heirs did intend to transfer their interest in the land up to the fence to Mr. John. While this testimony of Mrs. Pauley was somewhat inconsistent with the refusal of the Selby heirs to give a quit claim deed, she did explain that this was done on advice of their attorney to leave things as they were. The trial court heard the witnesses and had an opportunity to judge their credibility. Deferring to that determination does not result in questioning the soundness of the rule announced in Lurvey v. Burrell.
¶11. This rule is not applicable to appurtenant easements which pass with the deed to the dominant tenement even though not described or referred to. Dalton v. Johnson. Mo.. 320 S.W.2d 569: Benson v. Fekete, Mo., 424 S.W.2d 729. It does represent the rule when passage of fee title to adjacent land acquired by adverse possession is involved.