In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
DAVID SOMMERLATH, ) No. ED100163
)
Respondent, ) Appeal from the Circuit Court
) of St. Louis County
vs. ) 10SL-CC01738
)
KEVIN W. VOSS AND ) Honorable Thomas J. Prebil
PAMELA VOSS, )
)
Appellants. ) Filed: September 9, 2014
Kevin W. Voss and Pamela Voss (“Appellants”) appeal the judgment of the Circuit Court
of St. Louis County, entered after a bench trial, granting David Sommerlath (“Respondent”)
quiet title by adverse possession. We affirm.
I. BACKGROUND
Viewed in the light most favorable to the trial court’s judgment, the following facts were
produced at trial. The parties are neighbors, and their respective residential properties share a
boundary in Frontenac, Missouri. At issue is a 3,159-square-foot parcel of land along the
boundary line in the parties’ backyards (the “disputed area”). By deed and by property records,
the disputed area is located on Appellants’ lot.
Respondent moved into his home in 1979. Prior to closing on the property, Respondent
asked the real estate agent to indicate where the property line was located. The agent indicated
the property line was located just south of two maple trees on the edge of the lot. Based on the
different heights of the grass, Respondent ascertained that the neighbor to his south mowed the
grass along a line in accordance with the maple tree line. In reality, both the maple trees and the
grass mowing line were on the neighboring property. This parcel beyond the deeded property
line and extending to the maple trees and mowing line became the disputed area (referred to as
the “red line” by the parties). When Respondent moved in, his neighbor to the south was Peggy
Kennedy. At some point in the 1980s, Kennedy sold the property to the Grogans. In 2002, the
Grogans sold the property to Appellants.
Every year since 1979, Respondent mowed and trimmed the grass in the disputed area.
He aerated the ground every other year, fertilized and overseeded in the fall, and watered
regularly. Respondent also picked up twigs and sticks, trimmed trees, and periodically paid a
professional tree service to remove dead branches and limbs from the maple trees and a magnolia
tree in the disputed area. Over the years, Respondent also removed from the disputed area at
least five other dead trees. For several summers in the late 1980s, Respondent hired the son of
the neighbors to his south, Peter Grogan, to mow the grass for him. Grogan testified when he
mowed Respondent’s yard, he always mowed north of the red line, not along the deeded
boundary line. When he mowed his own yard, he also mowed in accordance with the red line.
No one but Respondent and Grogan (while employed by Respondent) ever mowed the grass in
the disputed area. No one but Respondent and his hired agents maintained the trees in the
disputed area.
Respondent also installed a landscaped garden with a brick border within the disputed
area. Within the garden, he planted periwinkle ground cover and laid mulch. He planted a holly
bush, which he trimmed and maintained. He also planted shrubs, flowers, and bushes within the
garden. No one but Respondent ever maintained the garden.
2
In 2006, Respondent installed an electric fence along the red line and kept his dog in his
backyard, including the disputed area. The electric fence remained along the red line until
Respondent moved it farther onto Appellants’ property with their permission to create a mutual
play area for their dogs.
A large honeysuckle straddled the disputed red line. Respondent maintained its size with
a hedge trimmer. Any maintenance Appellants performed on the honeysuckle fell south of the
disputed area.
Appellants installed several improvements on their property, including two eight-foot
wooden trellises and landscaping. These improvements all fell south of the disputed area.
In 1992 and 1993, Respondent built an addition to his home including a garage expansion
and a bedroom wing. Because the proposed addition violated existing setback requirements,
Respondent had to obtain a variance and permit from the City of Frontenac. To do so,
Respondent had to submit a “building site plan” and receive written authorization from his
neighbors. The plan indicated that the edge of the Respondent’s property was the deeded,
recorded property line, not the red line. The neighbors signed the site plan, indicating that they
had no objections to the variance as set out by the site plan. Respondent received the requested
variance and constructed the addition as planned.
As previously indicated, Appellants purchased their property from the Grogans in 2002.
Appellants lived next door to Respondent without incident until 2010. In that year, Respondent
hired a tree service to remove a dead branch from one of the maple trees in the disputed area.
Without direction from Respondent, the tree service also removed a dead pine tree from
Appellants’ property, south of the red line. Appellants then had a survey performed, which
indicated that the deeded property line was farther north than the red line.
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Shortly thereafter, Respondent filed this suit seeking quiet title to the disputed area by
adverse possession and for other equitable relief. A bench trial was held, during which
Respondent submitted a survey indicating the metes and bounds of the disputed area. The trial
court subsequently entered a judgment finding Respondent adversely possessed the disputed
area. The judgment granted Respondent quiet title to the disputed area as defined by the survey
in evidence. This appeal followed.
II. DISCUSSION
Appellants present two points on appeal. In their first point, Appellants assert the trial
court’s finding that Respondent adversely possessed the disputed area was against the weight of
the evidence. In their second point, Appellants argue that the trial court erroneously failed to
apply judicial estoppel to Respondent’s claims.
A. Adverse Possession
In Appellants’ first point on appeal, they argue that the trial court’s grant of quiet title to
Respondent by adverse possession was against the weight of the evidence. We disagree.
In reviewing a court-tried case, we will affirm a trial court's determination “unless there
is no substantial evidence to support it, unless it is against the weight of the evidence, unless it
erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536
S.W.2d 30, 32 (Mo. banc 1976). When determining the sufficiency of the evidence, we accept as
true the evidence and inferences therefrom that are favorable to the trial court's judgment and
disregard all contrary evidence. Watson v. Mense, 298 S.W.3d 521, 526 (Mo. banc 2009).
“To acquire title by adverse possession or prescription, possession must be: (1) hostile,
that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5)
continuous for the necessary period of years prior to the commencement of [the] action.” Id.
4
The required possessory period is ten years. Section 516.010 RSMo 2000. 1 The party claiming
ownership by adverse possession must demonstrate his claim by the preponderance of the
evidence. Shuffit v. Wade, 13 S.W.3d 329, 335 (Mo. App. S.D. 2000).
A claimant must establish each element to succeed on an adverse possession claim. Witt
v. Miller, 845 S.W.2d 665, 667 (Mo. App. E.D. 1993). We address each element in turn.
1. Hostile possession
Hostile possession means that the possessor acts with the intent to possess the land as his
own. Walker v. Walker, 509 S.W.2d 102, 106 (Mo. 1974). An individual's intent may be
inferred from his or her acts of dominion over the land. Bowles v. McKeon, 217 S.W.3d 400,
405 (Mo. App. S.D. 2007). “[H]ostility does not imply animosity.” Witt, 845 S.W.2d at 668.
Moreover, “[t]here need not be a dispute between two adjoining landowners over the location of
[a] borderline to satisfy the hostile requirement.” Watson, 298 S.W.3d at 526. The element will
be satisfied even where the possessor mistakenly believes he owns the disputed tract and
occupies it. Id.
In this case, all evidence indicated that Respondent considered the disputed area to be his
property, in that he exercised dominion over it by maintaining it. In fact, the evidence here
shows that all parties involved treated the red line as if it were the actual property line. The
evidence similarly indicated that Kennedy, the Grogans, and Appellants (prior to the 2010)
considered the disputed area to be Respondent’s property. There was no evidence that
Respondent’s use of the disputed area was merely permissive. This belief, although erroneous,
satisfies the hostility requirement. See Watson, 298 S.W.3d at 526 (holding that possessors met
the hostility element where they believed they owned the disputed land and all parties treated the
erroneous boundary as if it were correct).
1
All further statutory references to section 516.010 are to RSMo 2000.
5
As such, Respondent demonstrated by the preponderance of the evidence that his
possession of the disputed area was hostile.
2. Actual possession
To establish actual possession, it is not necessary that the possessor occupy “every foot of
the land at every minute.” Whites v. Whites, 811 S.W.2d 844, 848 (Mo. App. S.D. 1991).
Occupancy of part of the claimed area satisfies this requirement if the possessor intends to
possess the entire tract. Miller v. Warner, 433 S.W.2d 259, 264 (Mo. 1968). The character,
nature, and location of the property determine the type of use necessary to satisfy this prong of
the test. Witt, 845 S.W.2d at 668.
In Witt, we held that the possessors’ actions constituted actual possession where they
planted grass on the entire disputed area, mowed it, kept a dog there, installed a pool, and built a
fence around the area they intended to possess. Id. In short, we found that the possessors “used
the property as one would expect a back yard to be used.” Id.
As in Witt, Respondent likewise used the property as one would expect a back yard to be
used. He mowed and trimmed the grass in the disputed area. He aerated, fertilized, overseeded,
and watered. Respondent maintained and removed trees both personally and through a
professional service he employed. He also installed a garden and an electric dog fence. And
while Respondent did not fully enclose the disputed area with a fence like the possessor in Witt,
he did partially encircle the disputed area with a brick border around his garden. Further,
Respondent delineated the contours of the disputed area and demonstrated his possession of its
entirety by mowing along a fixed line year in and year out.
Moreover, it is not necessary that the adverse possessor enclose the disputed area in order
to actually possess it, provided that he cultivates the entire tract. In Watson, the disputed land
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was initially enclosed by a hedgerow and fence. Watson, 298 S.W.3d at 527. The possessor
farmed, pastured, and cultivated the disputed land continually. Id. The evidence showed that
even after the hedgerow and the fence were removed, the parties still respected the previously
established border. Id. The Supreme Court held that the conduct of the owners in farming,
pasturing, and cultivating the land up to the observed border satisfied the actual possession
requirement. Id. The presence or absence of the hedgerow and fence did not affect actual
possession of the entire disputed area. Id.
The evidence here established that all of the homeowners involved planted and
maintained their yards along the red line going back to at least 1979. Respondent testified that
he mowed and maintained the land up to the red line. Peter Grogan testified that he mowed
Respondent’s yard up to the red line from the north and mowed his parent’s yard up to the red
line from the south. Appellants did likewise. In fact, Appellants presented no evidence that
anyone other than Respondent or his agent performed any maintenance north of the disputed area
boundary line prior to 2010.
Respondent demonstrated by the preponderance of the evidence that he actually
possessed the disputed area. 2
3. Open and notorious possession
“Open and notorious” possession is satisfied by visible acts of ownership exercised over
the disputed land. Witt, 845 S.W.2d at 668. This requirement ensures the record owner has
cause to know of the possessor’s adverse claim. Dumproff v. Driskill, 376 S.W.3d 680, 690 (Mo.
2
Appellants argue that Respondent did not actually possess the disputed area because taxes were not assessed and
Respondent did not pay real property tax for it. This does not defeat actual possession. The payment or
nonpayment of taxes for a disputed parcel is evidence of actual possession, but it is not dispositive. Dumproff v.
Driskill, 376 S.W.3d 680, 689 (Mo. App. S.D. 2012).
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App. S.D. 2012). In a residential setting, visible acts of ownership include installing
improvements and maintaining the landscape of the disputed tract. See Witt, 845 S.W.2d at 668.
In Witt, we found that the possessors’ actions were open and notorious where they built a
fence, deck, and pool on the disputed tract and planted and maintained grass on it. Id. The
record owners had notice of the improvements and maintenance because they lived next door and
regularly observed them. Id.
Respondent’s actions were likewise open and notorious. Respondent’s maintenance of
the disputed area, his installation of the garden elements and brick edging, and his keeping of his
dog in the disputed area all apprised the deed owners, Kennedy, then the Grogans, then
Appellants, of Respondent’s possession of the disputed area. In each case, the deed owners had
constant notice of Respondent’s conduct. Therefore, Respondent demonstrated by the
preponderance of the evidence that his possession of the disputed area was open and notorious.
4. Exclusive possession
Exclusive possession means that the possessor must hold the land for himself as his own,
not for another. Walker, 509 S.W.2d at 106. Possession is exclusive where a claimant uses the
land as his own backyard, and no one else uses the property. See Witt, 845 S.W.2d at 667. Here,
Respondent used the disputed area as his backyard. He used it to contain his garden and kept his
dog there. No one else so used property3 and no one else maintained it. Respondent
demonstrated by the preponderance of the evidence that his possession of the disputed area was
exclusive.
3
There was some evidence that Respondent allowed Appellants’ dog into the disputed area to play with his dog.
We need not address whether this permissive use by the deed owner interferes with the exclusive possession
requirement, because it did not occur until 2006, well after Respondent met the ten-year statutory requirement. See
infra.
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5. Continuous possession for ten years
As previously stated, the required possession period in Missouri is ten continuous years.
Section 516.010. However, they need not be the ten years immediately prior to filing a claim.
Watson, 298 S.W.3d at 526. Respondent easily met this requirement. He began adversely
possessing the tract in 1979. Appellants did not move in until 2002, and did not contest
Respondent’s ownership of the disputed area until 2010, over thirty years after 1979.
Respondent demonstrated by the preponderance of the evidence that his possession of the
disputed area was continuous for ten years.
Because Respondent showed by a preponderance of the evidence that his possession of
the disputed area was hostile, actual, open and notorious, exclusive, and continuous for ten years,
the trial court’s grant of quiet title was not against the weight of the evidence. See Horning v.
White, 314 S.W.3d 381, 385 (Mo. App. W.D. 2010) (“[p]reponderance of the evidence” is
defined as that degree of evidence that is of greater weight than that offered against it). Point
one is denied.
B. Judicial estoppel
In their second and final point on appeal, Appellants present two related arguments: (1)
that Respondent should have been judicially estopped from asserting adverse possession for any
time he owned his property prior to 1992, because he “represented” in an administrative hearing
before the City of Frontenac that the deeded property line in the building site plan was the true
property line; and (2) that the trial court erred by not fully considering all of Appellants’
evidence in support of its judicial estoppel defense. We disagree.
Once title to property vests in the adverse possessor, any conduct subsequent thereto is
irrelevant to the adverse possession inquiry. Humphreys v. Wooldridge, 408 S.W.3d 261, 269-70
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(Mo. App. S.D. 2013). “Once the ten-year period has run, the possessor is vested with title and
the record owner is divested.” Flowers v. Roberts, 979 S.W.2d 465, 470 (Mo. App. 1998).
Respondent began adversely possessing the disputed area in 1979, when he moved in and
began to maintain it. His adverse possession was complete in 1989, ten years later. At that
point, he was vested with legal title, and the property to the south (then the Grogans’, later the
Appellants’) was divested. Any representations that Respondent may have made during an
administrative hearing in 1992, after he acquired legal title to the disputed area, are irrelevant.
Therefore, Appellants’ judicial estoppel claims have no merit. Point two is denied.
III. CONCLUSION
The judgment granting Respondent quiet title to the disputed area is affirmed.
ROBERT M. CLAYTON III, Judge
Patricia L. Cohen, P.J., and
Roy L. Richter, J., concur.
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