Court of Appeals of Missouri, Western District, First Division
KELLY L. WERTZ-BLACK, CHARLES H. BLACK, MICHAEL LEE WERTZ, PERSONAL REPRESENTATIVE OF THE ESTATE OF WALTER F. WERTZ; Deceased,
GUESA USA, LLC, Appellant. RICHARD WERTZ, TOM CALDER, AND BILL CURRY, Respondents,
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.
Edward Welsh, Presiding Judge.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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; (2) for ingress
and egress for them and their customers "along and over
the [30-foot] tract" from the Highway 65
entrance; and (3) "for parking for the benefit
of plaintiffs and their customers on [Guesa]'s property
on the [parking] tract." The court ordered the cost of
repairs and maintenance of the easements to be divided