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The Empire District Electric Co. v. Scorse

Court of Appeals of Missouri, Southern District

January 13, 2020

THE EMPIRE DISTRICT ELECTRIC COMPANY, a Kansas Corporation, and WESTAR GENERATING, INC., a Kansas Corporation, Respondents,
v.
JOHN THOMAS SCORSE, as trustee under that certain Trust Agreement dated November 17, 1976, and its unknown successors and assigns, and JOHN THOMAS SCORSE, individually, and his unknown heirs and assigns, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable Kevin L. Selby, Judge

          DANIEL E. SCOTT, P.J.

         AFFIRMED

         John Scorse challenges the denial of his bench-tried adverse-possession claim, charging that the record conclusively established his right to relief as a matter of law. We disagree and affirm the judgment.[1]

         Background

         The "Disputed Property" is a near-trapezoidal tract below, 15 acres of hilly, heavily-timbered, "wild Ozark property" bordered on the south by Shoal Creek and on the west by land the Scorse family bought in 1975 and where they have long raised cattle.

         (Image Omitted)

         The Disputed Property is unsuitable for cattle grazing due to its topography and lack of pasture. There is a clear distinction and difference between the Scorses' meadow and the Disputed Property's brush, large timber, and downed trees. The Disputed Property is not in the Scorses' chain of title and Scorse makes no claim to that tract by deed or record title.

         Respondents (the "Utilities") operate a power plant north of the Disputed Property. In 1999, they bought some 200 acres, including the Disputed Property, from Carl and Grace Elkans' larger tract for future plant expansion and direct access to Shoal Creek and had the land surveyed and pinned. The Elkans insisted that the Utilities lease all 200 acres back to them until their ranch manager Ron Scott retired, so their ranch operations continued until December 2005.

         In 2008, the Utilities started to fence the boundaries of these 200 acres. They found no functional or clearly-visible border fencing on the Disputed Property, just a few old wooden fence posts and some strands of barbed wire primarily on the ground, running through the woods along parts of the tract's north and west sides. The Utilities bulldozed trees and fenced the tract's east side, then notified Scorse that they planned to fence the boundary with his land. Scorse disputed the property line and removed fencing that the Utilities built along the property line of record.

         In 2015, Scorse clouded the Disputed Property's title by purporting to deed it to a family trust. The Utilities sued to quiet title. Scorse counter-petitioned on an adverse-possession theory and sought summary judgment on his claim. That motion failed, but per Rule 74.04(d) the court certified certain paragraphs of Scorse's statement of uncontroverted material facts ("SUMF") as "not in substantial controversy" and "established for all purposes of this litigation, including trial." These "Rule 74.04(d) facts" are central to Scorse's arguments on appeal.[2]

         At trial, the Utilities proved ownership of the Disputed Property through deeds of record, the Elkans' recorded affidavit of possession, testimony from a licensed title examiner, their payment of assessed property taxes since 1999, and plat books showing ownership by the Elkans and then by the Utilities. The Utilities also offered extensive testimony against Scorse's adverse-possession claim. The court ultimately entered a 39-page judgment, replete with findings of fact and conclusions of law, quieting title in the Utilities, rejecting Scorse's adverse- possession claim, and expressly finding Scorse's testimony "not credible" in various respects.

         General Legal Principles

         To win title by adverse possession, Scorse had to prove possession of the Disputed Property that was (1) hostile; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for ten years prior to the action. Trokey v. R.D.P. Dev. Group, L.L.C., 401 S.W.3d 516, 524-25 (Mo.App. 2013). Failure to prove even one of these five elements defeated his claim. Id. at ...


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