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Important legal terms: “I grandmawed it! Ain’t I grandfathered?”


By Harry Styron

As the Ozarks becomes suburban, there are many clashes between the old economy and ways of life and the new, expressed in colorful language. A couple of familiar terms are sometimes used in ways that sound funny, especially used as verbs.

Grandfathering
“Grandfathering” as a legal term is not peculiar to the Ozarks and seems to mean here what it means anywhere. It is the concept by which something that has been done in the past is lawful for that reason, regardless of any new laws.

The historical origin of the term is ugly: in some states, the right of a citizen to vote was tied to whether that citizen’s grandfather could vote. In 1915, the United States Supreme Court struck down an Oklahoma statute that had a “grandfather clause” which essentially denied blacks the right to vote because their grandfathers had not passed literacy tests required of blacks.

Sometimes, grandfathered status is recognized by statutes and regulations. For example, when an area is rezoned by the local government from agricultural to residential, the pig farm is called a “prior non-conforming use.” A prior non-conforming use usually may not be expanded or resumed after stopping for a defined period of time.

In a 1997 case, the Olsons put a second house trailer on their small parcel as a home for their daughter. The county planner, acting under newly-adopted regulations, told her that she needed a conditional use permit to do so, which required a showing of hardship, which Mrs. Olson equated with a request for charity. Mrs. Olson claimed that there was no hardship because “her daughter works every day,” and the planning board agreed with Ms. Olson that her property was grandfathered for the second trailer, but neighbor Brown appealed. The appellate court’s opinion summarized Mrs. Olson’s trial testimony as follows:

Mrs. Olson spoke for the defense…. She started her arguments by stating that Mr. Brown had no right to appeal her case since he was a criminal and that he abuses his dogs and his family…She said that she bought the land she now owns, the two (2) acres, because her realtor told her she would be able to have two homes on the site. Since this was an existing development she should be grandfathered.

Grandfathering is a limited right to continue a lawful use that could not be given a permit under current regulations. The concept often does not apply to laws affecting health and safety; otherwise new regulations to protect health and safety would be even more difficult to implement.

The term grandfathering is sometimes applied to one of the most common sources of legal disputes in the Ozarks, the right to title to another’s land by the doctrine of adverse possession (commonly called “squatters’ rights”) or to the right to cross another’s land by the doctrine of easement by prescription. Under Missouri law, after 10 years of possession or control, a user of another’s land may be able to have a court affirm that a non-owner has a title or a right of use to another’s land.

Grandmawing
Grandmawing is more obscure than grandfathering, and I have only heard it used with respect to stealing timber. Sawmill operators still buy logs for cash, and bringing a few logs to a mill is a good way to get a little money quickly with only a chainsaw and a truck, if gasoline isn’t too expensive. When there is an agreement with a landowner allowing logging, the landowner usually gets a share of what the sawmill pays for the logs. So the sawmill operator likes to keep track of where logs come from, in case of questions about buying stolen property.

“I cut these logs off Grandma’s place,” is such a transparently lame answer, the term “grandmawed timber” has come to mean timber of uncertain origin. The possibility that someone could prove where it came from declines sharply as it is put in a woodstove or made into lumber.

I suppose somebody could say that he had always grandmawed timber off of some absentee owner’s land, thus his right to continue was grandfathered. This way, grandma and grandfather would be together, at least in one lawsuit.

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About Harry Styron

I'm a lawyer who lives in Branson, Missouri, whose professional interests involve real estate, construction and local government.

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