Good fences make good neighbors: Boundary line disputes

  • Published: Sunday, Jan. 1, 2017

Boundary location disputes usually arise in connection with rebuilding or relocating old fences. The principle referred to as squatter’s rights, properly called the doctrine of adverse possession, then becomes important. This legal doctrine provides that someone in possession of land continuously for a period of 10 years may receive absolute title to the land if his or her possession was adverse to the interests of the true owner. The court and jury will decide.

It may require a quiet title lawsuit to decide whether all five of the following elements of adverse possession are present in any given factual situation. Possession must be:

  • Hostile (under claim or right),
  • Open and notorious (so long as the adverse possessor acts as though the land is his),
  • Exclusive, and
  • Continuous for the 10-year period.

If all four elements are met, then title can be established for the adverse possessor.

Tenants cannot assert adverse possession even after leasing the property from more than 10 years because they are there with the consent of the landowner (not hostile use).

The usual case of adverse possession is one in which the adverse possessor does not have guilty knowledge that he is on another person’s land. Typical adverse possession lawsuits involve innocent construction of fences off the true boundary line. It doesn’t make any difference (under Missouri law) whether the adverse possessor (really just a trespasser) paid or did not pay the real estate taxes on the land being claimed under adverse possession.

Keep in mind that if a title is acquired by adverse possession, it can be made marketable of record only after either a court has rendered judgment that all the requirements of the doctrine of adverse possession have been met, or the neighboring landowners have given each other signed, notarized, and recorded quitclaim deeds. The quitclaim approach is basically a settlement out-of-court and should be done with legal advice.

The question of where the boundary runs when land borders a stream may arise when water, gravel, mineral or recreational rights are disputed or when a stream changes course. The location of the boundary and the adjoining landowner’s rights normally depend on the legal classification of the stream at the point in question.

In Missouri, riparian water (natural watercourses or lakes) may be classified one of three ways.

Public navigable. A stream is basically classified as public navigable if it is large enough for commercial watercraft to float on it. In Missouri, the landowner adjoining the stream is considered to own land down to the water’s edge (low-water mark), while the public retains ownership of the streambed. Any land that is slowly and imperceptibly built up along the shoreline is considered to belong to the adjoining owner by the doctrine of accretion.

Public nonnavigable. A stream that is too small to float commercial watercraft but is sufficiently large to float canoes, small fishing boats or logs is legally classified as public nonnavigable in Missouri. Here, the boundary is said to run with the center thread of the stream. Thus, the boundary would change with a gradual change in the center thread of the stream. If the stream suddenly changes course, the boundary does not change but remains at the original place.

A landowner adjoining a public nonnavigable stream has the right to remove sand and gravel from it. However, his or her ownership rights are subject to the public’s right to use the stream itself for recreational purposes.

Private nonnavigable. If a stream is too small to float canoes, small fishing boats or logs, it falls into the classification of private nonnavigable. Here, adjoining landowners not only own the bed to the middle thread, but also have the right to control the use of such streams.

Examples of application of the law

Example 1

Mr. Oak owns 40 acres of land adjoining that of Miss Maple. The division fence is in poor condition, so Mr. Oak builds a new one but mistakenly builds it 10 feet beyond the true boundary. Miss Maple objects but Mr. Oak does not move the fence. Twelve years later, Miss Maple’s successor in title sues Mr. Oak.

Now Mr. Oak has a good argument to obtain title by adverse possession because his possession was open and continuous for more than 10 years and was adverse to the interests of the true owner – Miss Maple and her successors in title.

Example 2

Mr. Bass and Mr. Perch own farms separated by a small creek. People in the area often use the creek for float trips. Mr. Bass decides to remove gravel from the creek bed. Mr. Perch complains, saying that Mr. Bass has no right to remove the gravel and asks for an injunction to stop him from removing the gravel.

Since this stream can be used for boats and canoes, it would be classified as a public nonnavigable stream. Each adjoining landowner would own the streambed to the center thread of the stream. Therefore, Mr. Bass could remove his share of the gravel. The ownership interests of both Mr. Bass and Mr. Perch are subject to the public’s right to use the public nonnavigable stream for recreational purposes like canoeing, fishing and wading.

Writer: Hank Stelzer

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