Ferguson v. Ewing

Page 822

Appeal from the Circuit Court of Callaway County, Missouri. Honorable Carol Ann England, Judge.

George Smith, Columbia, MO, Counsel for Appellant-Respondent.

Thomas Riley, Fulton, MO, Counsel for Respondent-Appellant.

Jacquelyn Brazas, Fulton, MO, Co-Counsel for Respondent-Appellant.

Before Division Three: Gary D. Witt, P.J., Joseph M. Ellis, and Thomas H. Newton, JJ. Witt, P.J., and Ellis, J. concur.

OPINION

Page 823

Thomas H. Newton, Judge

Mr. Paul C. Ferguson appeals the trial court's award of $2,000 for the repair of a division fence. Mr. R. Kenneth Ewing and Mrs. Dorothy A. Ewing cross-appeal. We affirm and remand.

Factual and Procedural History

This is a fencing dispute between adjoining landowners--Mr. Ferguson and Mr. R. Kenneth Ewing and Mrs. Dorothy A. Ewing (the Ewings)--whose land shares a boundary line. In August 2011, Mr. Ferguson's attorney sent a letter to the Ewings to notify them that Mr. Ferguson had completed the construction of a lawful fence on his boundary portion, pursuant to section 272.020,^[1] and demanded that they pay for the cost of constructing their portion of a new fence. The Ewings replied that there was no need for a new fence because they had already built a portion of the fence on their property, and because they no longer kept livestock and had no future plans to keep or corral livestock or any other animals.

In December 2011, Mr. Ferguson filed a petition with the circuit court for a neutral resolution, pursuant to section 272.060.1.^[2] The Ewings filed a counterclaim against Mr. Ferguson for trespass, damage to their portion of the fence, and the unlawful removal of fencing and posts from their property.

In April 2012, the court appointed three " disinterested householders" (Householders) to designate the portions of the fence to be constructed by each party, along with a cost estimate. The Householders determined that each party would each be responsible for building and maintaining ...