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Ferguson v. Hoffman

Court of Appeals of Missouri, Western District, Second Division

April 14, 2015

DARL D. FERGUSON AND DELORIS M. FERGUSON TRUSTEES OF THE DARL D. FERGUSON AND DELORIS M. FERGUSON AMENDED IRREVOCABLE TRUST, Appellants,
v.
PEGGY HOFFMAN AND PENNY HOFFMAN, Respondents

Page 777

Appeal from the Circuit Court of Mercer County, Missouri. The Honorable Jack N. Peace, Judge.

For Appellants: John Luther Young, Princeton, MO.

For Respondents: Tara Lyn Walker, Trenton, MO.

Before Division Two: Anthony Rex Gabbert, PJ., Karen King Mitchell, J. and Mary Rhodes Russell, Special Judge. All concur.

OPINION

Anthony Rex Gabbert, Judge.

Page 778

Darl and Deloris Ferguson appeal the circuit court's judgment denying their petition for ejectment and granting fee simple title by adverse possession of 22 feet of land to Peggy Hoffman on her counterclaim for quiet title. In their sole point on appeal the Fergusons contend that the court erred in finding that Peggy Hoffman acquired the property through adverse possession because notice of the boundary dispute did not occur until 2012 with joint possession by the parties since 2007 and Peggy Hoffman failed to meet the burden of proof for hostile, actual, open and notorious and exclusive possession for the continuous relevant time period after notice of the boundary dispute. We affirm.

Factual and Procedural Background

Viewed in the light most favorable to the circuit court's judgment, the evidence adduced at trial showed that the Fergusons own real property directly adjacent to real property owned by Peggy Hoffman. Peggy purchased her property in 1991 and resided there until 2005. Though Peggy remains the record owner of the property, Peggy's daughter, Penny Hoffman, currently occupies the property. At dispute is a 22 foot strip of land located on the west edge of the Hoffman property and adjacent to the east edge of the Ferguson property.

From 1991 until 2005, only Peggy maintained the 22 foot strip of land at issue and she maintained it as her own. She testified that her intent in maintaining the property was to exclude others from using the property. Peggy's activity on the land was clearly visible. She mowed the lawn or arranged for it to be mowed and maintained a garden and peony bushes on the disputed strip of property. She allowed

Page 779

her grandchildren to play on a tree swing and trampoline located on the strip. After she moved from the property, her daughter continued to maintain the disputed tract.

Kent Donelson testified at the hearing. Donelson's father owned the Ferguson's lot from 1963 until 1978 and continues to own a lot adjacent to the Fergusons. Donelson testified that when his father owned the Ferguson lot, Donelson mowed the lot for him. He testified that he never mowed the 22 foot strip of property in dispute and it was always maintained by the property owners who owned what is now the Hoffman property. He testified that since Peggy Hoffman has lived at the property she has always maintained the 22 foot strip. Donelson testified that in the 1960's there was a fence located on the line dividing the properties, and after the fence was removed there was a stake, or a steel rod, marking that boundary from 1963 until it disappeared approximately a year prior to the hearing. He testified that ...


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