DICK PORTON, AMY PORTON, and NATHAN ATCHISON v. KEITH BOX and SARAH BOX

• Court: Missouri Court of Appeals
• Decided: June 26, 2024
• Docket: SD37755
• Status: Published

Opinion

In Division

DICK PORTON, AMY PORTON, and ) NATHAN ATCHISON, ) ) Respondents, ) No. SD37755 ) v. ) ) Filed: June 26, 2024 KEITH BOX and SARAH BOX, ) ) Appellants. )

APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

Honorable Laura J. Johnson, Judge

AFFIRMED

For nearly 30 years, the public has used a road ("the South Road") running

through Keith and Sarah Box's property to access the Blue Ridge Estates Subdivision

("the Subdivision").1 Dick Porton, Amy Porton, and Nathan Atchison (collectively,

"Subdivision Owners") own property in the Subdivision and use the South Road to access

their properties. In February 2020, the Boxes purchased the property on which the

1 While the Subdivision is served by a platted public road, the platted road has not been

maintained by Taney County for many years and is impassable and unsafe. Several residents of the Subdivision petitioned Taney County to maintain the platted road as a county road, but the petition was denied. The Taney County Commission voted against any county-funded repairs on the platted road "because the steep grade exceeds county road standards and the repair costs are prohibitive." Due to the condition of the platted road, residents of the Subdivision and the public, including emergency services and delivery drivers, have accessed the Subdivision using the South Road. South Road runs from an out-of-state owner who had owned the property since 1993.

The out-of-state-owner described himself as an "absentee owner" who never visited the

property and did not know the South Road was being used to access the Subdivision.2

The out-of-state owner never gave anyone permission to use the South Road. Despite

never having permission, the public treated the South Road as a public road to access the

Subdivision and it was regularly used by Subdivision residents, their guests, emergency

personnel, law enforcement, and delivery drivers.3

About a month after purchasing the property, the Boxes blocked access to the

South Road, and Subdivision Owners filed a petition against the Boxes seeking a public

easement by prescription across the South Road and a declaration that the South Road

was a public road by common-law dedication.4 Following a bench trial, the trial court

found the South Road to be a public road by common-law dedication and, alternatively,

that the elements for a public prescriptive easement had been met. In its judgment, the

trial court expressly found the out-of-state owner:

never granted permission to anyone to drive or walk through the Box property. During the twenty-seven years that [he] owned the Box property, he never walked it or even visited it. He described himself as an "absentee owner". He did not know that residents of the Subdivision were accessing the Subdivision through his property. He was unaware that anyone was crossing his property.

2 The out-of-state owner was a Florida limited partnership, of which Hugh Upton and his wife

were general partners. While the property was owned by the limited partnership rather than an individual, we use the pronoun "he" to describe the actions of the limited partnership because Hugh Upton is the individual who testified about the limited partnership's ownership of the property.

3 Multiple witnesses testified at trial about the longstanding use and maintenance of the South

Road. For more than ten years the entire length of the South Road has been maintained by members of the public who have graded the road, filled pot holes and ruts, cut trees and limbs, removed brush from the road, and picked up trash.

4 The School of the Ozarks, Fisher Enterprises, LLC, and Youngblood Family, LLC, were also

named as defendants in the underlying case and each own property that the South Road also runs over or around, however, they filed no briefs in this appeal. The Subdivision Owners also sought, alternatively, a private prescriptive easement for the use of the South Road, but that count is not relevant to the issues raised in this appeal. 2 The Boxes appeal from that judgment in three points. First, they argue the trial

court erred in declaring the South Road to be a public road by common-law dedication

because neither the Boxes nor their predecessor-in-title acted in a way that

unequivocally demonstrated an intent to dedicate the road to public use. Second, as to

the public prescriptive easement, the Boxes argue the trial court erred in shifting the

burden to the Boxes to show use of the South Road was permissive. Finally, the Boxes

argue the trial court erred in finding there is both a common-law-dedicated road and a

public prescriptive easement because these theories are inconsistent. Finding no merit

in the Box's arguments, we affirm the judgment.

Standard of Review

In a court-tried case, the judgment will be affirmed "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." Singleton v.

Singleton, 659 S.W.3d 336, 341 (Mo. banc 2023) (quoting Empire Dist. Elec. Co. v.

Scorse, as Tr. Under Trust Agmt. Dated Nov. 17, 1976, 620 S.W.3d 216, 224

(Mo. banc 2021)). We view the evidence and the reasonable inferences drawn from the

evidence in the light most favorable to the judgment, disregard all evidence and

inferences contrary to the judgment, and defer to the trial court's superior position to

make credibility determinations. Houston v. Crider, 317 S.W.3d 178, 186 (Mo. App.

S.D. 2010). In contrast, claims that the trial court erroneously declared or applied the

law are reviewed de novo. Singleton, 659 S.W.3d at 341. "Accordingly, '[d]eference is

paid to the [trial] court's factual determinations, but this Court reviews de novo both the

[trial] court's legal conclusions and its application of law to the facts.'" Id. (quoting Sun

Aviation, Inc. v. L-3 Commc'ns Avionics Sys., Inc., 533 S.W.3d 720, 727 (Mo.

banc 2017)).

3 We presume the trial court's judgment is valid, and the burden is on the Boxes to

demonstrate its incorrectness. McElvain v. Stokes, 623 S.W.3d 769, 774 (Mo. App.

W.D. 2021). Finally, we will affirm if the trial court's judgment is correct "under any

theory, regardless of whether the reasons advanced by the trial court are wrong or not

sufficient." Veazie-Gallant v. Brown, 620 S.W.3d 641, 649 (Mo. App. E.D. 2021)

(quoting Venture Stores, Inc. v. Pacific Beach Co. Inc., 980 S.W.2d 176, 180 (Mo.

App. W.D. 1998)).

Analysis

"A public road may be established in three ways: (1) under section 228.190,

RSMo; (2) by prescription; or (3) by implied or common law dedication." Przybylski

v. Barbosa, 289 S.W.3d 641, 644 (Mo. App. W.D. 2009). In the present case, the

Subdivision Owners sought the use of the South Road under two of those theories: a

public prescriptive easement and common-law dedication. Under both theories, the

remedy is the same—the use of the road. Whittom v. Alexander-Richardson

P'ship, 851 S.W.2d 504, 507 (Mo. banc 1993) ("Common law dedication awards the

public the use of the land in dispute[.]") (Emphasis added); Ogg v. Mediacom,

L.L.C., 142 S.W.3d 801, 810 (Mo. App. W.D. 2004) ("[T]he holder of a prescriptive

easement has only the qualified and limited nonpossessory right to use the servient

estate for a particular purpose[.]") (Emphasis added). The Boxes challenge the common-

law road dedication theory in point 1, the prescriptive easement theory in point 2, and

both theories in point 3. Because we will affirm a trial court's judgment if cognizable

under any theory, we need not address all points if the trial court's judgment is

cognizable under either the common-law road dedication theory or prescriptive

easement theory since the remedy under both counts is the same—the use of the South

Road. See Jackson v. Higher Educ. Loan Auth. of Mo., 497 S.W.3d 283, 290-91

(Mo. App. E.D. 2016) ("[T]his court is permitted to affirm the trial court's judgment if it 4 is cognizable under any theory, regardless of whether the reasons advanced by the trial

court are wrong or insufficient.").

In point 2, the Boxes argue the trial court improperly shifted the burden to them

to show the use was permissive because the burden only shifts to the landowner when

the landowner knew of the use. This argument fails because the presumption that a use

is adverse arises, even in the absence of the owner's actual knowledge, once a party

seeking a prescriptive easement demonstrates open, continuous, visible, and

uninterrupted use for ten years. Wertz-Black v. Guesa USA, LLC, 524 S.W.3d 68,

72 (Mo. App. W.D. 2017).

The public can acquire a prescriptive easement for the use of a road over the land

of another "when such road has been established . . . by adverse occupancy and use of the

same by the public for a period of time equal to that prescribed by the statute of

limitations[.]" Shapiro Bros., Inc. v. Jones-Festus Props., L.L.C., 205 S.W.3d

270, 274 (Mo. App. E.D. 2006) (quoting Terry v. City of Independence, 388 S.W.2d

769, 774 (Mo. banc 1965)). The party claiming the prescriptive easement must show, by

clear and convincing evidence, continuous, uninterrupted, visible, and adverse use of

another's land for a period of ten years. Id.

"Adverse" use does not require an intent to violate the owner's rights; rather, "it

is necessary only for the use to proceed without recognition of the owner's authority to

permit or prohibit the use." Lay v. Cunningham, No. ED 111508, 2024 WL 1625272,

at *3 (Mo. App. E.D. April 16, 2024) (quoting Southside Ventures, LLC v. La

Crosse Lumber Co., 574 S.W.3d 771, 785 (Mo. App. W.D. 2019)). If permission is

given by the landowner to use the land, the use of the land is not "adverse[.]" See

Homan v. Hutchison, 817 S.W.2d 944, 948 (Mo. App. W.D. 1991) ("[A] permissive

use cannot ripen into a prescriptive use.").

5 When the party seeking a prescriptive easement demonstrates open, continuous,

visible and uninterrupted use for ten years, the law presumes the use is adverse and

under a claim of right. Phillips v. Sommerer, 917 S.W.2d 636, 638 (Mo. App. W.D.

1996). "The presumption places the burden on the landowner to demonstrate that the

use was permissive and not adverse."5 Wertz-Black, 524 S.W.3d at 74. No actual

knowledge of the use is required, but visibility of the use is.6 "Where the use is open 'so

that any reasonable person would have discovered its existence,' the use is visible." 7

Smith v. Chamblin Props., LLC, 201 S.W.3d 582, 587 (Mo. App. W.D. 2006)

(quoting Tuf Flight Inds., Inc. v. Harris, 129 S.W.3d 486, 490 (Mo. App. W.D.

5 A presumption is not evidence; neither may it be weighed as evidence. Presumptions are not for consideration by the triers of the facts, but are procedural to effect a shifting to defendant of the burden of going forward with the evidence and disappear from the case upon the production of substantial evidence which controverts the fact presumed. On the other hand, "prima facie evidence" means such evidence which, in law, is sufficient to satisfy the burden of proof to support a verdict in favor of the party by whom it is introduced when not rebutted by other evidence. Prima facie evidence, however, is not conclusive evidence, and while it suffices to support a judgment upon a fact so established, it does not require or demand a verdict for the party whose contention it supports.

State ex rel. State Dept. of Pub. Health & Welfare v. Ruble, 461 S.W.2d 909, 913 (Mo. App. Spfld.D. 1970) (internal citations omitted).

6 We are unaware of any Missouri case requiring proof of actual knowledge before this

presumption applies. "[S]ince the method of acquiring prescriptive easements is analogous to that of establishing title by adverse possession[,]" some courts consider adverse possession cases in deciding prescriptive easement cases. See Glenville v. Strahl, 516 S.W.2d 781, 782 (Mo. App. St.L.D. 1974). The requirement of visibility in a prescriptive-easement case is similar to the requirement that possession be "open and notorious" in adverse-possession claims. In the context of adverse possession, "it is well settled that 'the condition of open and notorious conduct does not require proof that the true owner have actual knowledge of the claim, only that the occupancy be conspicuous, widely recognized and commonly known.'" DeVore v. Vaughn, 504 S.W.3d 176, 186 (Mo. App. W.D. 2016) (quoting Scott v. Rorebeck, 766 S.W.2d 659,654 (Mo. App. W.D. 1989)).

7 There are good public policy reasons that explain why visibility rather than actual knowledge

applies. It "discourage[s] landowners from sleeping on their rights and reward[s] the industrious use, development, and active monitoring of land." John A. Lovett, Restating the Law of Prescriptive Easements, 104 Marq. L. Rev. 939, 972 (2021). "An owner who 'pays so little attention to what he owns that he neither sells it nor intends to put it to a productive use' forfeits his right to preserve undiminished title to the person who does put the resource to productive use." Id. at 966 (quoting James Gordley, Foundations of Private Law 144 (2006)).

6 2004)). "[T]hus, if the owner does not timely seek legal aid to dispossess one who 'enters

into possession and sets up an adverse claim' to the land, 'the law assumes that the

owner has acquiesced in the adverse claim.'" Wertz-Black, 524 S.W.3d at 74 (quoting

Whittom, 851 S.W.2d at 509). "The application of the presumption of adversity is

unaffected by any subjective misunderstanding by the landowner over the nature of the

use." J. Bruce, J. Ely, & E. Brading, The Law of Easements & Licenses in Land § 5:3

(2024).

Here, Subdivision Owners presented substantial evidence of open, continuous,

visible, and uninterrupted use of the South Road by the public for not only ten years, but

for almost 30 years. For nearly three decades, residents, guests, emergency personnel,

law enforcement, delivery drivers, and maintenance trucks have used the South Road to

access the Subdivision. Once the Subdivision Owners presented this evidence, the

burden shifted to the Boxes to rebut the presumption of adversity by showing the use

was permissive. See Wertz-Black, 524 S.W.3d at 74. The Boxes failed to present any

evidence that the use was permissive and, in fact, presented evidence that the use was

not permissive. The trial court properly applied the law when it placed the burden on the

Boxes to demonstrate the public's use of the road was permissive. Point 2 is denied.

Since the trial court's judgment is cognizable under the prescriptive easement

theory, we need not and do not decide the Box's point-1 challenge to the trial court's

ruling that a public road by common-law dedication had been established or their point-

3 challenge that the trial court's rulings were based on inconsistent theories.

Conclusion

The trial court's judgment is affirmed.

MARY W. SHEFFIELD, J. – OPINION AUTHOR

DON E. BURRELL, J. – CONCURS

BECKY J.W. BORTHWICK, J. – CONCURS 7