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My neighbor fenced in my backyard!

The rear of the Grossmans’ backyard had several trees and a culvert along the property line. When they put up a privacy fence in 1994, they didn’t enclose a nine-foot strip across the rear. The St. Johns moved into the house on the lot that shared the rear line of Grossmans’ lot in 2004, and the St. Johns began to maintain that nine-foot strip along with their own backyard, removing debris and even laying sod.

In 2008, the St. Johns fenced in their backyard and extended their fence across the nine-foot strip to a point five inches from the Grossmans’ fence. The Grossmans’ attorney sent a letter to the St. Johns, asking that they remove their fence and discontinue using the nine-foot strip.

The Grossmans sued the St. Johns for trespass, also asking for an injunction to force the St. Johns to remove the portion of the St. Johns’ fence on the Grossmans’ property. The St. Johns countersued, seeking reimbursement for their maintenance and repairs of the nine-foot strip.

Trespass under Missouri law, in a civil case, requires the plaintiff to prove unauthorized entry onto the property of another, regardless of damages and regardless of good faith, reasonable care, ignorance or mistake of law or fact.  Missouri law also allows the defense of consent of the complaining property owner, whose consent may be implied by custom, usage or conduct. Proof of damages resulting from the trespass is not required, but monetary damages can be recovered if proved.

At the trial, Mr. Grossman testified that he was aware that the St. Johns installed solar lights, plants and concrete benches on the nine-foot strip and admitted that it didn’t bother him. The St. Johns argued that this admission was proof of implied consent.

The trial court found for the St. Johns on the trespass charge, apparently accepting the argument of implied consent. The trial court also rejected the St. Johns’ counterclaim for reimbursement of their costs of repairs and maintenance. The Grossmans appealed; the St. Johns did not.

The Western District of the Missouri Court of Appeals in Grossman v. St. John reverses the trial court, stating that the judgment in favor of the St. Johns on the injunction and trespass claims was “against the weight of the evidence and was erroneous.”

In other words, there was inadequate evidence in the record of the trial to show that the Grossmans had consented to the erection of the fence, even though they may have initially consented to the use of the nine-foot strip by the St. Johns. That consent was revoked by the letter from Grossmans’ lawyer. By ignoring the undisputed revocation of consent, the judge made an error.

Please note that the use of Grossmans’ property by the St. Johns only lasted for four years. Had the use continued for 10 years, the St. Johns would not have been arguing consent–they would state that they used the property openly and without consent, thereby entitling them to title by adverse possession. The Grossmans’ suit was necessary to protect their property from such a claim.


About Harry Styron

I'm a lawyer and mediator who lives in Branson, Missouri, whose professional interests involve real estate, nonprofits, and local government. As of 2022, I'm shrinking my legal practice so that I have more time to mediate real estate disputes. I'm happy to mediate using video platforms like Zoom and WebEx, or in person anywhere in Missouri.

2 responses »

  1. in 1973 my wife and I bought a house and 2 acres in #SGF from the owner, FSBO. We did not have the property surveyed, but it was fenced and It looked like two acres.

    in 1985 we put the house up for sale and a nearby greenhouse owner offered a contract for the full asking price which we accepted.

    He had the property surveyed.

    Survey said the neighbor to the east had his fence 15 foot over the property line. (I remembered that when some trees fell and damaged the fence the neighbor had told me they were my trees and I had to clean them up. I didn’t understand what he meant.)

    The buyer reduced his offer by $1,500.

    I went the the neighbors and told them their fence was on my property. The man was stalwart but the wife was a nervous wreck. She told me that when the city put in a street, they took 15 foot off the east of their property and 15 foot from their neighbor to the east.

    The husband then took 15 foot off of our property. This happened in the 1930s. The neighbors were a well-known name in #SGF.

    I told them moving the fence cost me $1,500 and I would give them a quitclaim for the 15 foot if they would give me $1,500.

    The man said he wouldn’t do it, he owned the property because of adverse possession. I told him that he was an old man and he would die soon and I would keep his estate tied up in the courts because that was my land. His wife urged him to give me the money and accept the quit claim.

    After about a week he did just that. I gave him the quit claim, he gave me a check for $1,500 and I sold the place w/o the 15 feet to the buyer.

    Shortly thereafter the old man died.


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