Cooper v. Carns

263 S.W.3d 729, 2008 Mo. App. LEXIS 1121, 2008 WL 3895919
CourtMissouri Court of Appeals
DecidedAugust 26, 2008
DocketNo. WD 68148
StatusPublished
Cited by10 cases

This text of 263 S.W.3d 729 (Cooper v. Carns) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. Carns, 263 S.W.3d 729, 2008 Mo. App. LEXIS 1121, 2008 WL 3895919 (Mo. Ct. App. 2008).

Opinion

JOSEPH P. DANDURAND, J.

Ronald and Joanna Cooper appeal the judgment of the trial court in favor of Demmaree Caras on her claim of adverse possession. In their sole point on appeal, the Coopers assert that the trial court erred in entering judgment for Ms. Caras because she failed to prove that her use or possession of the disputed land was hostile. The judgment is affirmed.

Factual and Procedural Background

The parties are owners of adjacent property in Mill Hollow Farms, a forty-acre parcel divided into four lots of ten acres each. The Coopers own Lot 3, and Ms. Cams owns Lot 4 directly south of the Coopers’ lot. Each of the lots in the subdivision is heavily wooded fronting to the east on Miller Road. A ravine runs north and south through the Coopers’ lot and turns west near the southern border of the lot.

Ms. Cams and her former husband, James Cams, bought Lot 4 in 1975. In November 1975, the Carnses signed an easement with Kansas City Power and Light Company granting the utility the right to install an electric transformer and underground power lines on the northern part of their lot. The transformer was installed immediately east of the point where the ravine turns and begins to run west. The Carnses believed the transformer was positioned on the northern boundary of their property when it was actually placed approximately sixteen feet within Lot 3. The area south of the ravine and transformer to the property line dividing Lot 3 and Lot 4 is the disputed area in this case. It measures approximately 140 feet long and 30 feet wide at it widest point. The Carnses believed the disputed area was within their Lot 4.

After installation of the transformer, the Carnes began constructing their house and a garage barn within their lot south of the disputed area. One of the subdivision restrictions provided for a fifty foot setback of structures from the property line. The Carnses contacted Sandy Overby, the owner of Lot 3 at the time, to inform him that the garage barn might be within fifty feet of the property line. Mr. Overby was not concerned about the violation of the setback restriction and did not have a problem with where they placed the home and garage barn.

The Carnses also cleared the disputed area of brush and undergrowth and installed in it two gravel turnarounds off of the driveway. The two turnarounds, in the shape of a “Y,” were approximately twenty feet long. The turnaround to the west (turnaround no. 1) was continuously used to park or turn around vehicles. The turnaround to the east (turnaround no. 2) was used to park or store a Ford tractor and its accessories. The Carnses utilized the remainder of the disputed area as a garden area.

Mr. and Ms. Cams divorced in 1980. In 1984, Dennis Delozier moved into Ms. Carns’s residence and became a member of her household. Upon moving into the household, Mr. Delozier began parking his 1953 truck that he had previously used in his business in the area east of turnaround no. 2. Ms. Cams and Mr. Delozier also parked a jeep at that site.

In 1983, John Barthol purchased Lot 3 from Mr. Overby and had the property surveyed. The survey showed that Ms. Carns’s garage barn encroached into the disputed area on Lot 3 by a couple of inches and that the turnarounds encroached several feet into the area. Mr. Barthol testified that he showed Ms. Cams and Mr. Delozier the property line as indicated by the survey and how the garage barn encroached onto Lot 3. He did not, [732]*732however, voice an objection to the encroachment. Mr. Barthol also testified that he placed steel stakes on the north and south borders of his lot after the survey was done. Ms. Cams and Mr. Delozier testified that Mr. Barthol never talked to them about the property line or encroachments and that they never saw the steel stakes marking the property line.

In 1987, Ms. Cams and Mr. Delozier built a pet cemetery in the disputed area. In 1988, they built a wooden footbridge over the ravine. The bridge provided access between the two lots. That same year, Mr. Barthol sold Lot 3 to Curt Shat-to and provided him with the 1983 survey. Mr. Barthol also told Mr. Shatto about the encroaching garage barn. Mr. Shatto testified that Mr. Barthol never told him about steel stakes that he placed on the property boundaries and that he never found such stakes while he owned the lot. Mr. Shatto never discussed the survey, boundary lines, or encroachment of the garage barn with Ms. Cams or Mr. Delozier. Mr. Shatto acknowledged that the ravine served as a natural geographic dividing line between the two lots and as the owner of Lot 3, he never occupied, possessed, or utilized the disputed area south of the ravine. Instead, Mr. Shatto was aware that Ms. Cams and Mr. Delozier occupied and maintained the disputed area. They used the area as a turnaround, garden, pet cemetery, and, in 1994, constructed a sixteen foot by sixteen foot garden shed in the area where Mr. Delozier had parked his 1953 truck. The truck was moved further east in the disputed area after the shed was constructed.

The Coopers purchased Lot 3 from Mr. Shatto in 1995. At the time of the purchase, they were given the 1983 survey and learned that the garage barn encroached onto Lot 3 by a couple of inches and that the turnarounds encroached several feet into the lot.

Mr. Cooper testified that he gave Mr. Delozier a copy of the 1983 survey in 1997 when he was thinking about installing a fence along the property line. Ms. Cams and Mr. Delozier testified, however, that they did not receive the 1983 survey from Mr. Cooper until 2003.

Ms. Cams and Mr. Delozier continued to maintain and occupy the disputed area during the Coopers’ ownership of Lot 3. In 1995, they installed a wrought iron fence and gate around the existing pet cemetery. They also replaced the footbridge over the ravine in 1995 or 1996. In September 2003, Ms. Cams and Mr. Delozier asphalted the two gravel turnarounds after Ms. Cams became legally blind and Mr. Delo-zier had a leg amputated. After the turnarounds were paved, Mr. Cooper consulted the 1983 survey and determined that the corner of the garage, the asphalt turnarounds, and the garden shed were encroaching onto Lot 3. At this time, the Coopers made their first objection to Ms. Cams regarding the encroachments on their property. They asked Ms. Cams and Mr. Delozier to share in the cost of having a survey done to determine the property line and told them that they expected any improvements to be relocated off their property. Ms. Cams and Mr. Delozier refused to pay for the survey and did not agree to relocate improvements.

The Coopers had a survey done in March 2004. The survey showed eight specific encroachments into the disputed area: the corner of the garage barn, the turnarounds, the pet cemetery, the garden shed, the wooden footbridge over the ravine, the garden, and Mr. Delozier’s 1953 truck. The Coopers filed a petition in ejectment in March 2005 asking the trial court to order Ms. Cams to remove and refrain from using any of their property [733]*733and to award damages. Ms. Cams filed an answer and counterclaim to quiet title in the portion of Lot 3 lying south of the ravine claiming that she had acquired ownership of the disputed tract of land by adverse possession. A bench trial was held in May 2006, and thereafter the trial court entered judgment against the Coopers on their petition in ejectment and in favor of Ms. Cams on her counterclaim to quiet title. This appeal by the Coopers followed.

Standard of Review

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Cite This Page — Counsel Stack

Bluebook (online)
263 S.W.3d 729, 2008 Mo. App. LEXIS 1121, 2008 WL 3895919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-carns-moctapp-2008.