Missouri Real Estate Lawyer

Adverse possession in Missouri allows someone to gain title to real estate merely by possessing it in a certain manner. This is an update to my earlier article entitled Adverse Possession of Land in Missouri and focuses on adverse possession of undeveloped rural and “wild” land.

A person claiming adverse possession in Missouri must show by a preponderance of the evidence that the possession was hostile and under a claim of right, actual, open and notorious, exclusive, and continuous for at least ten years. There is no hard and fast rule regarding what facts will result in adverse possession in Missouri. Each case must be decided on its own unique circumstances.

Actual Possession

Actual possession is the ability to control the land to the exclusion of others. The claimant must show that he or she possessed all of the land claimed by adverse possession in Missouri. If the land is undeveloped, the claimant might, for example, show that he or she farmed the land, cleared the land, cultivated it, built fences, made other improvements, patrolled the land, posted no trespassing signs, cut timber, ran cattle, cleared brush, and paid the property taxes.

The burden of demonstrating actual possession of undeveloped land is less than that required for developed land. One or more of the above activities might be sufficient to show actual possession of undeveloped land. However, the activity cannot be minimal or passive. What constitutes actual possession in one case may not in another case. For example, one court found that merely maintaining an old fence was insufficient. Another court found that picking mushrooms, allowing others to hunt on the land, and grazing cattle on the land was also insufficient. Yet one court found that building a fence and a well, hunting, and clearing timber demonstrated actual possession. Additionally, many courts give significant weight to the testimony of neighbors about who they thoughts controlled the land. Paying the property taxes also carries a lot of weight, but it is not conclusive.

Actual possession may be shown by an almost endless combination of circumstances. The following combined acts have been deemed sufficient to satisfy the requirement of actual possession as to rural land: clearing brush and trees, raising crops, pasturing cattle, and cultivating the land, Miller v. Warner; building a fence and a well, hunting, clearing timber, and otherwise exercising some control of the land, Whiteside v. Rottger; placing a 1,500 foot geothermal coil on the land, constructing a berm 374 feet in length, raising bees, building a fence on open pasture, running cattle up to the fence, and clearing brush, Stratford v. Long; training dogs, mowing, adding gravel to and maintaining a road alongside the fence, and maintaining the fence and the area next to it, Brasher v. Craig; mowing and maintaining the land, using a road bed at least twice a week for ten years to access to other land owned by plaintiffs, allowing others to use the road bed, driving all-terrain vehicles, motorcycles, and bicycles on the road bed, building a driveway on the land, allowing horses to graze on the land, and storing materials on the land, Kinder v. Calcote.

Open and Notorious

The owner of the property must have reason to be aware of the adverse possession. This does not require the giving of any notice to the owner. Nor must the owner have actual knowledge of the adverse possession. Rather, adverse possession in Missouri can be open and notorious if it is widely recognized and commonly known by others and reasonably discoverable by the owners.

The following combined acts have been deemed sufficient to satisfy the requirement of open and notorious as to rural land: cutting a network of trails through the property, trimming trees, cleaning up debris, fencing off an open well, hunting, installing hunting apparatuses, burning brush, using a chainsaw to maintain the property, and mowing it, DeVore v. Vaughn; widening a road bed, riding tractors, ATVs, and motorcycles on the road, and cutting timber on the land, the noise of which would have put the owners on notice that plaintiffs were using their property and possessing it as their own; neighbor testified that he always believed the property was owned by plaintiffs, Kinder v. Calcote.

Hostile

This only requires evidence that the claimant intended to occupy the land as his own.  The record owner does not need to be aware of this intent. Nor must the claimant intend to deprive the owner of title to the land. Intent is determined from all of the circumstances, including the conduct of the claimant. Intent can be inferred from the claimant’s control of the land. However, possession is generally not hostile if the owner consented to the possession.  (Possession “must be in defiance of, rather than in subordination to, the rights of others.” Cooper v. Carns.) In Copper v. Ringen, the trial court found that the Ringens gave permission to the Coppers to cut and bale hay on two open pastures owned by the Ringens. Such permission defeated the Coppers’ claim of adverse possession.

Consent might also be implied when the dispute is among family members. However, a dispute among distant relatives may not imply consent. For example, a dispute among second cousins who do not participate in family gatherings may not rise to an implied consent.

Adverse Possession of State Owned Land

Generally, land owned by the State of Missouri or its political subdivisions, such as a county, municipality, or school district, cannot be acquired by adverse possession. However, such land can be acquired by adverse possession if the claimant proves each element of adverse possession, demonstrates that the land was abandoned by the government, and proves by “clear and strong” evidence that the government intended to abandon the land. Intention may be inferred from such evidence, but the mere non-use of the land by the government is insufficient to prove abandonment. Accordingly, cases awarding adverse possession of state owned land are rare.

In 1945, the Missouri Supreme Court did grant adverse possession to a private person of land owned by a city in Missouri. In that case, a college was situated on city owned land. The college burned down, and the city did not rebuild it. A farmer then used the land for 19 years for farming. The Missouri Supreme Court held that such circumstances were sufficient to demonstrate that the city had abandoned the property.

Take-Away of Adverse Possession in Missouri

Adverse possession of undeveloped land in Missouri is tricky. As shown, no single set of facts will result in a judgment for adverse possession. Rather, the court will weigh the totality of the facts and circumstances. Owners of undeveloped land in Missouri should be vigilant about the possible use of their land. This might entail at least an annual inspection of the property. If you notice any signs of someone using your land in the manner described in this article, then you must either stop it or consent.

Michael Sewell, JD, MBA has litigated more than 100 lawsuits in federal, state and municipal courts since 2005. Many of these disputes involved title to real estate. Sewell Law provides professional litigation services in the areas of breach of contract, commercial litigation, general business, real estate, and torts.

Please contact Michael Sewell for an initial consultation at no charge. (314) 942-3232 | michael@sewelllaw.net.

This article is for general informational purposes only. This information is not intended as legal advice. You should consult an attorney regarding how this information might apply to your specific circumstances.

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