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Wertz-Black v. Guesa USA, LLC

Court of Appeals of Missouri, Western District, First Division

March 7, 2017

KELLY L. WERTZ-BLACK, CHARLES H. BLACK, MICHAEL LEE WERTZ, PERSONAL REPRESENTATIVE OF THE ESTATE OF WALTER F. WERTZ; Deceased,
v.
GUESA USA, LLC, Appellant. RICHARD WERTZ, TOM CALDER, AND BILL CURRY, Respondents,

         Appeal from the Circuit Court of Pettis County, Missouri The Honorable James Kelso Journey, Judge.

          Before: James Edward Welsh, P.J., Anthony Rex Gabbert, and Edward R. Ardini, Jr., JJ.

          James Edward Welsh, Presiding Judge.

         Guesa USA, LLC, ("Guesa") appeals the circuit court's judgment awarding the Respondents ("the Wertz Family") three prescriptive easements on commercial property owned by Guesa in Sedalia, Missouri. We affirm.

         Background

         This case involves a dispute between the owners of two adjacent tracts of real property in Sedalia, Missouri. In November 2012, Guesa acquired title to a tract of commercial property at the corner of Highway 65 and 14th Street in Sedalia. The prior owners of that property had operated a Dairy Queen restaurant there for several decades prior to Guesa purchasing the property. The Wertz Family has owned the commercial property immediately to the south since 1947. The Wertz Family owns a building on that property out of which they operate their liquor store, State Fair Spirits.

         The Guesa property is bordered by 14th Street on the north. Highway 65 borders both the Guesa and Wertz properties on the west. There is an entrance from Highway 65 onto the south side of the Wertz property. There is also an entrance from Highway 65 onto the Guesa property between the Wertz Family's liquor store and the Dairy Queen building. There is another entrance onto the Guesa property from 14th Street. Five parking spaces along the north side of the Wertz Family's building partially extend onto Guesa's property.

         Prior to 1968, Highway 65 was a two-lane highway with no curbs, and the Guesa/Wertz property was "all one open area." After 1968, the highway was widened, and a curb was installed along the west boundary of the two properties with a thirty-foot entrance between them. That entrance is located entirely upon the south portion of the Guesa property. The curbing effectively cut off any vehicle access onto the north side of the Wertz property from Highway 65.

         Until 2014, the Wertz Family, their tenants, and their customers routinely used Guesa's 14th Street and Highway 65 entrances for ingress and egress to the Wertz property and used the parking spaces on the north side of the Wertz property. In March 2014, however, Guesa blocked the entrances to its property from 14th Street and Highway 65, thereby restricting access to the Wertz Family property from those roadways.[1]

         The Wertz Family thereafter filed a lawsuit seeking the declaration of three prescriptive easements. Specifically, the Wertz Family sought: (1) a 20-foot easement from 14th Street across Guesa's property to the Wertz property; (2) a 30-foot easement from Highway 65 across Guesa's property to the Wertz property; and (3) five parking spaces located on the south part of the Guesa property. The easement dimensions were determined by Kerry Turpin, a surveyor retained by the Wertz Family. Guesa filed its answer denying the Wertz Family's entitlement to the easements.

         At the ensuing bench trial, the evidence showed that the Wertz property was originally purchased in 1947 by Walter Wertz and his brother. In 1957, Walter Wertz and his wife, Maxine, acquired the brother's half-interest, giving them full ownership. In the 1940s, the Wertzes began operating a liquor store on their property. Their sons, Fred and Richard, grew up working in the family business. In 1979, Richard took over the store and has continuously operated it since. The Wertz Family has leased space in their building to a number of businesses over the years, including a surveyor's office, barber shop, and an insurance agency.[2]

         For several decades, the prior owners of the Guesa property operated a Dairy Queen restaurant there. The Dairy Queen was initially owned and operated by Richard Johnson and his wife. They sold the property to Martin and Peterson, Inc., in 1974. Martin and Peterson, Inc., operated the Dairy Queen until 2012, when the property was sold to Guesa.

         When they were children, Fred and Richard Wertz worked for Mr. Johnson at the Dairy Queen. Both Fred and Richard testified that they had never heard Johnson object either to the use of the Dairy Queen property for access to the Wertz property or to Wertz's customers using the parking spaces. Nor did they hear the subsequent owner, Mr. Martin, object to or complain about such uses. The only differences that arose occurred in 2012 when Martin showed Richard Wertz his plans to build a Dairy Queen Brazier, which would have closed the 14th Street entrance, and Richard objected. Richard told Martin that he was going to contact a lawyer about the matter, and Martin never pursued the project. On one other occasion, Martin objected to a sign on the north wall of the liquor store restricting parking to the Wertz's customers, and Richard removed the sign.

         At trial, the plaintiffs presented the testimony of various members of the Wertz family and others, including a truck driver who had made deliveries to the liquor store from 1954 until 2012. All witnesses testified that, from the time that they were acquainted with the property up to the present, the owners, employees, and customers of the businesses on the Wertz property had continuously used either the Highway 65 or 14th Street entrances over Guesa's property for ingress and egress to those businesses. Guesa called no witnesses.

         The circuit court entered Judgment in favor of the Wertz Family, declaring that the plaintiffs had "non-exclusive easements" (1) for ingress and egress for them and their customers "along and over the [20-foot] tract" from the 14th Street entrance;[3] (2) for ingress and egress for them and their customers "along and over the [30-foot] tract" from the Highway 65 entrance;[4] and (3) "for parking for the benefit of plaintiffs and their customers on [Guesa]'s property on the [parking] tract."[5] The court ordered the cost of repairs and maintenance of the easements to be divided ...


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