THE EMPIRE DISTRICT ELECTRIC COMPANY, a Kansas Corporation, and WESTAR GENERATING, INC., a Kansas Corporation, Respondents,
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.
FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable Kevin L.
E. SCOTT, P.J.
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.
"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.
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
(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
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.
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.
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.
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 ...