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Tag Archives: Implied consent

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.

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