Property line disputes meet adverse possession elements

St. Louis Daily Record & St. Louis Countian, Mar 14, 2002 by Donna Walter

Good fences make good neighbors -- but only if the fences are in the right place.

On Tuesday, the Missouri Court of Appeals, Western District, resolved two property disputes between neighbors in Cass County, affirming the circuit court's grant of adverse possession in both cases.

The property at issue in Lancaster vs. Neff was at one time all owned by the Osborns. In 1975, they sold 17 acres to their nephew, Joseph Evans. In 1988, six years after Mr. Osborn died, Mrs. Osborn sold the 20-acre tract of land she lived on to Selby and Ellyn Neff, and Evans sold his land in 1997 to Les and Cheri Lancaster. At the center of the dispute between the new owners was whether a fence actually divided the two properties. A hog-wire fence had been on the property when the Osborns bought all 57.5 acres in 1954; they had it replaced in 1977 with a chain-link fence.

A survey, ordered by the Lancasters, showed that their true property line was 12 feet to 15 feet north of the fence; that information was obtained through the warranty deed the Lancasters received from Evans.

The conflict between the warranty deed and the finding of adverse possession troubles Kansas City attorney Mark H. Epstein, who represented the Lancasters. The Osborns conveyed a warranty deed to Evans, who conveyed a warranty deed with the same language to the Lancasters. "Now you have a situation where the grantor, the aunt, has deeded a legal description to her nephew, and the subsequent purchasers from the aunt are saying, well, my seller, the aunt, adversely possessed against her own nephew and adversely possessed in the face of the warranties in deed, which to me is counterintuitive because she gave a deed to her nephew with a warranty that says `I'm giving you this legal description, and I will warrant and defend that title against anybody else making a claim.' Now technically she's the one claiming title against property she just deeded," he said.

And Evans, who was deemed a credible witness by the trial court and then, by deference, by the appellate court, testified against his own warranty, said Epstein, that the fence was always intended to be the property line and that he and his aunt and uncle had always treated it as such.

"The Court of Appeals, I think, has kind of set a bad precedent for an owner who sells and then subsequently takes back land he just sold," he said. "I think that's the problem, that it appears as though they paved the way for a grantor to turn around and adversely possess against his own grantee in the face of the warranties in the deed that he just gave.

"A warranty deed is there for a reason; it's to warrant defend title. And this decision basically says, well, that's fine, you can give title, you can give warranties and then just go ahead and adversely possess them right back. That's the problem I have with it. What's the point of a warranty then?" added Epstein.

According to the Neffs' attorney, Elvin S. Douglas Jr. of Cass County, neither the Osborns nor Evans knew that the warranty conveyed to Evans gave Evans title to land north of the fence.

"Without some specific evidence that the seller was claiming a piece of what turned out to be in the deed, then you couldn't establish adverse possession under those circumstances," said Douglas. "But the court found that the testimony of Joe Evans, who was the purchaser, the nephew who purchased the . . . 17 acres was sufficient to put them on notice that they were claiming to the fence, and he acknowledged at the trial that they made full use of it, he knew they were claiming to the fence, and he didn't claim anything north of the fence."

According to Hood vs. Denny, a 1977 Missouri appellate case, there exists an exception to the rule that grantors may not take back property through adverse possession. Hood states that "continued possession of the transferred property alone will not ripen into a claim of adverse possession, the rule being that following delivery of the deed a grantor continuing in possession must by words, acts or conduct notify the grantee that he is claiming title and possession against the covenants of the grantor's deed, the presumption being that he holds possession in subservience to the covenants."

In that respect, the appellate court deferred to the trial court's determination that Evans was a credible witness about the Osborns' intent to own the land north of the fence, about their statement to him that the fence was the property line and about their continued and open use of the land. The court rejected the Lancasters' argument that the trial judge wrongly shifted the burden to them to prove the Osborns' possession of the land in question was permissive. Looking at that statement in context, the appellate court determined the judge, Joseph P. Dandurand, "understood the `grantors exception,' recognized its validity, and found that the presumption of permissiveness was rebutted in this case."

The appellate court then turned to the issue of whether a "hostile" element of showing adverse possession had been met. The definition of hostile, said the court, does not necessarily mean an intention to take away property that a party knows belongs to someone else. "It is the intent to possess, and not the intent to take irrespective of his right, which governs," Judge Victor C. Howard quoted from Landers vs. Thompson, a 1947 Missouri case.