Grossman v. St. John
2010 Mo. App. LEXIS 1469
| Mo. Ct. App. | 2010Background
- Grossmans owned the property behind which the disputed area lies; they had a 1994 six-foot fence leaving 9 feet of rear property unfenced.
- In 2003, a tornado destroyed the fence but it was rebuilt along the same line.
- From 2004 onward, St. Johns maintained the disputed area after moving in behind the Grossmans.
- St. Johns added items (benches, lights, bushes, small trees) and cleared debris on the disputed area; a tree was removed.
- Survey at trial showed the disputed area belonged to the Grossmans; St. Johns built a fence around their yard and disputed area in August 2008, allegedly without permission; Grossmans sent a notice to remove the fence on Sept. 24, 2008.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the St. Johns trespassed by building on the Grossmans’ land. | Grossmans: unauthorized construction on their property constitutes trespass. | St. Johns: implied consent and easement permitted use, | Yes, trespass; consent exceeded by fence construction. |
| Whether implied consent to use the disputed area continued or was revoked and limited by the fence construction. | Implied consent existed but was not unlimited; consent revoked when fence commenced. | Consent extended to maintenance but not to erecting a fence. | Implied consent was limited; construction of the fence exceeded scope and revoked by notice. |
| Whether the Grossmans were entitled to damages for trespass and the trial court’s failure to award them. | Trespass presumed damages; actual damages were proven. | Trial court found no damages on petition; counter-claim handled separately. | Trial court’s ruling on petition was against the weight of the evidence; remanded for proceedings consistent with opinion. |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard for affirming a bench-tried judgment)
- Watson v. Mense, 298 S.W.3d 521 (Mo. banc 2009) (evidence viewed in light favorable to trial court’s decree)
- Ogg v. Mediacom, L.L.C., 142 S.W.3d 801 (Mo.App. W.D.2004) (trespass defined as unauthorized entry regardless of damage)
- Kitterman v. Simrall, 924 S.W.2d 872 (Mo.App. W.D.1996) (trespass where conduct is entering land wrongfully or with consent that exceeds scope)
- Simpkins v. Ryder Freight Sys., Inc., 855 S.W.2d 416 (Mo.App. W.D.1993) (damages for trespass; presumption of damage; nominal damages available)