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Category Archives: adverse possession

Coverdell decision set aside, as Branson Landing case goes back to trial court

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Using the “plain error” doctrine, rarely used in civil cases, the Court of Appeals for the Southern District of Missouri, in Empire District Electric Co. v. Coverdell, reversed and remanded a January 14, 2010 jury verdict that had awarded Douglas Coverdell and Coverdell Enterprises the north third of Branson Landing and adjacent areas. This decision is dated June 3, 2011.

The appellate decision is based on the City of Branson’s argument that the trial court made a serious mistake by allowing the jury to enter a verdict affecting the property interests of the City of Branson (and others) who did not participate in the trial.  The appellate court accepted the City’s argument that “plain error review” would be appropriate, because the court’s error was “so egregious as to ‘weaken the very foundation of the process’ and ‘seriously undermine confidence in the outcome of the case.’ ” Empire’s appellate arguments were not addressed in the decision, according to a footnote, since the court’s acceptance of the City’s arguments was sufficient to warrant reversal.

The City of Branson did not participate in the trial held in January 2010, though the City’s attorney was present in the gallery of the court room for much of the trial. In an earlier phase of the case, which took place in 2004, the City had won its effort of affirm its title to the west portion of the peninsula shared with North Beach Park. Thereafter, the City was in a monitoring mode, not aware that title to the City’s land, leased to Branson Landing, would be the subject of the trial.

The appellate court tied its decision to the words of Coverdell’s attorney, spoken to the jury, who told the jury in the January 2010 trial that the dispute with Empire concerned only the east part of the North Park Beach peninsula. Coverdell’s attorney is also quoted as telling the jury that the City “has nothing to do with this dispute between Empire and [Coverdell and Coverdell Enterprises.]”

However, the judgment that Coverdell’s attorneys submitted to the trial judge after the juy verdict included 27 acres that included the Belk store and parking lot at the between North Beach Park and the Belk store, as well as some of the area south and west of the Belk store. The trial court’s mistake was to cloud the title of the City and others who were did not participate in the 2010 trial. The owners of much of the 27 acres were not parties to the suit, which appears to be the fundamental reason for reversal of the trial court’s judgment. The appellate opinion refers to City’s statement that the City “as well as numerous other third parties, have interests in that southern tract of land such that Branson was aggrieved by the 2010 judgment.”

The appellate decision gives the City and Empire the right to amend their claims and face Coverdell in a new trial.


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.

Who owns abandoned public roads in Missouri?

As Missouri’s public roads have been straightened, many odd kinks of roadway are left over, along with triangles of land between the old roads and the new roads. As we drive, we see these pieces of the old roads, sometimes serving as frontage roads along divided highways. In some cases, such as in McCullough v. Doss and Allen, the triangle on the west side of the new road was sold to McCullough, even though they might have been able to claim that at least the west half of the abandoned right-of-way of the old public road was theirs. Here’s an image from the Stone County Assessor’s maps:

The State of Missouri built Highway 39 in the mid-1950s, mainly along an old public road. At the point shown in the image, the severe dogleg Read the rest of this entry

Branson Landing land titles: how soon we forget how it was just 10 years ago!

Pictures help to tell the story that lies underneath the disputed land titles at the north end of Branson Landing. You can click on these images to enlarge them. Here’s the 1913 plat of Park Addition to the City of Branson.

The southwest corner of the Belk building sits about where Sycamore Street joins what has been called St. Limas Street and Boxcar Willie Drive, now Branson Landing Boulevard. The platted lots in Block 4 of Park Addition were the location of resorts until construction of Branson Landing began. Mang Park, with a baseball diamond and swimming pool, occupied Read the rest of this entry

Jury muddles title to North Beach Park and part of Branson Landing

On January 14, 2010, a Taney County jury rendered its verdict on the counterclaim of Doug Coverdell and Coverdell Enterprises against Empire District Electric Company, the Joplin-based utility that owns Lake Taneycomo and some adjacent land.

Coverdell’s counterclaim apparently sought to determine that Coverdell had better title than Empire to Branson’s North Beach Park and the north end of Branson Landing, possibly extending as far south as the north quarter of the parking garage.

The City of Branson has leased North Beach Park from Empire for decades. The deeds that the jury seemed to affirm include land that the City bought from owners other than Empire as well as land owned by persons not involved in the lawsuit.

A quiet title suit often doesn’t absolutely determine ownership, but only determines which of the litigants has a better claim to title. Without a definite legal description and the participation of all the owners, a verdict like the one here is much less than certain.

As events unfold, I’ll explain more here. If you want to get an email notification of updates to this blog, check the email box in the upper right corner of your screen.

Having reviewed portions of the court file, my tentative conclusion is that the jury’s verdict is a long way from resolving the dispute. Empire has filed a post-trial motion and others will be assessing their options. A judgment does not become final for 30 days, which can be extended by the filing of post-trial motions.

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