Norman v. Allison

775 S.W.2d 568 (Mo. Ct. App. 1989)



Five elements are essential to acquisition of title by adverse possession under Mo. Ann. Stat. § 516.010. The possession must be (1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous, for ten years prior to commencement of the action to perfect title by adverse possession. The sufficiency of the claim by one in possession is not to be measured by the morality of the claim or the legal efficacy of an instrument under which the claim is made. Nonetheless, there must be an intent to claim to possess the land as the owner. One's occupancy of an adjoining proprietor's land under a mistake as to the boundary line, and without any intention of claiming beyond the true boundary line, when ascertained, is not adverse possession. If he takes and holds possession up to a given point and claims to be the owner to such point, his possession is adverse, notwithstanding his belief that such point is the true boundary line, when in fact it is not.


Apellant landowner sought a declaration that he had acquired title by adverse possession to part of adjoining landowners' tract of land. In the alternative, the landowner sought a declaration that he had acquired an easement by prescription for a road over the tract. The lower court found that the landowner did not possess or use the land in question under a claim of right and denied him relief. On appeal, the court affirmed the judgment of the lower court.


Did the circuit court err in denying appellant's claim of adverse possession?




The court found that by his own admission at trial, the landowner made no claim of right to the disputed tract or roadway. He merely built a fence, with the cooperation and contribution of the former adjoining landowners, where they agreed that the boundary was and then used the land openly. The court found that the landowner's possession was not hostile, under a claim of right. The court rejected the landowner's claim that his lack of intent to claim the property should negate his claim of adverse possession. The landowner failed to prove adverse possession under the requirements of Mo. Ann. Stat. § 516.010. He also failed to prove that he had acquired an easement by prescription.

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