Burg v. Dampier

• Decision Date: 26 July 2011
• Docket Number: No. WD 73186.,WD 73186.
• Citation: 346 S.W.3d 343
• Parties: Daniel E. BURG and Kris A. Burg, Respondents,v.Marsha C. DAMPIER and Sabrina Graham, Appellants.
• Court: Missouri Court of Appeals

346 S.W.3d 343

Daniel E. BURG and Kris A. Burg, Respondents,

v.Marsha C. DAMPIER and Sabrina Graham, Appellants.

No. WD 73186.

Missouri Court of Appeals, Western District.

July 26, 2011.

Thomas M. Schneider, Columbia, MO, for appellants.Garrett S. Taylor, Columbia, MO, for respondents.Before Division Two: THOMAS H. NEWTON, Presiding Judge, CYNTHIA L. MARTIN, Judge and GARY D. WITT, Judge.CYNTHIA L. MARTIN, Judge.

This case involves a dispute over the use of a non-exclusive roadway and utility easement. Daniel Burg (“Mr. Burg”) and Kris Burg (“Mrs. Burg”) (collectively the “Burgs”) own a tract of residential property benefitted by the easement. The easement runs across a tract of property owned by Marsha Dampier (“Dampier”), but occupied by Sabrina Graham (“Graham”) (collectively the “Appellants”) pursuant to a contract for deed. Appellants appeal from the trial court's judgment, entered following a trial to the court, ordering Appellants to remove all obstacles and encroachments from the easement area, awarding the Burgs $5,000 in damages for nuisance created by the Appellants, invalidating a recorded trespass notice filed of record, and enjoining Appellants from engaging in future conduct which impairs or obstructs the Burgs' use, enjoyment, and maintenance of the easement. We affirm.

Statement of Facts and Procedural History¹

On March 30, 1993, the Burgs acquired a 44–acre tract of real property in Boone County, Missouri. The property was a part of an area that had been prepared for development (“Development Area”) by Scott Schulte and Hardeep Bhullar (“Developers”). The Development Area had been divided into Tracts 1 through 10 pursuant to a recorded survey. Access to the Development Area was generally afforded by North Tucker School Road, a public roadway running north/south along a portion of the eastern boundary of the Development Area. However, all of the tracts were not adjacent to North Tucker School Road. Thus, the Developer created a private roadway designated as Tract 1 which connected to North Tucker School Road, and which ran through the center of the Development Area in a roughly east to west direction. The record suggests that the conveyance deed from the Developers to the initial purchaser of each of Tracts 2 through 10 included the grant of a perpetual, non-exclusive, roadway and utility easement over Tract 1.

The 44–acre tract the Burgs purchased was Tract 9. Tract 9 does not have direct access to North Tucker School Road. Tract 9 lies north of Tract 1. However, only the south one-third of the western boundary of Tract 9 touches on Tract 1. Tract 10 is located immediately south of Tract 9, and sits in between Tract 9 and Tract 1. Tract 1 runs along the entire southern and western boundaries of Tract 10.

The Burgs purchased Tract 9 intending to build a home on the site some day. Tract 9 is heavily wooded and has topographical issues, including a gorge, which limit where a home can be easily built. When the Burgs purchased Tract 9, the general warranty deed from the Developers afforded them a perpetual, nonexclusive roadway and utility easement over and across Tract 1. Because the Burgs were interested in someday building a home in the southeast corner of Tract 9 (opposite the location where Tract 9 touched upon Tract 1), they negotiated with the Developer for the grant of an easement across Tract 10 to permit access to Tract 1 at the southern property line of Tract 10. The easement the Developers granted over Tract 10 was included in the Burgs' general warranty deed, and was described as follows:

Together with a 50 feet wide perpetual, nonexclusive roadway and utility easement running generally north-south across the above-described Tract 10 with the west line of said easement area being described as follows: [ metes and bounds description of easement deleted ]. This easement shall be for the use and benefit of the present and future owners of Tract 9 of the aforesaid Survey recorded in Book 702, Page 646, Deed Records of Boone County, Missouri. The parties to this Deed and their successors and assigns agree (a) that no cross-fencing, gates or other obstructions shall be placed in the easement area, (b) that the parties shall contribute toward the repair and maintenance of the roadway in the easement area in proportion to their respective usage with other users of the roadway in the easement area, and (c) that this easement shall automatically terminate if and when the easement area is dedicated and accepted by Boone County, Missouri as a public road.²

(Emphasis added.)

In February 2001, Dampier purchased Tract 10. She did not purchase Tract 10 from the Developer, as there had been intervening owners of the Tract. Dampier's conveyance document indicated that her legal interest in Tract 10 was subject to easements and restrictions of record.

In August 2002, the Burgs decided to move forward with their plans to build a home in the southeast corner of Tract 9. At the time, a fence was in place on the northern and southern boundaries of Tract 10, and thus across the northern and southern boundaries of the easement over Tract 10. The Burgs sent Dampier a letter requesting that she remove the fence blocking the north and south ends of the easement, along with other obstacles and encroachments located in the easement.³ The letter advised that if Dampier did not remove the fence, obstacles, and encroachments, the Burgs would do so. Dampier did not respond to the letter. Mr. Burg cut the fences which were blocking the northern and southern ends of the easement.

Dampier responded by filing a lawsuit against the Burgs on August 12, 2002, alleging that the easement was invalid and void, and that the Burgs were trespassing on her property through use of the easement. Dampier also placed signs around the area notifying neighbors of the lawsuit. The petition was dismissed by Dampier in mid-September 2002.

In 2003, the Burgs installed a 9–1/2 foot wide gravel driveway down the middle of the 50–foot wide easement.

In 2004, Graham began living on Tract 10 pursuant to an agreement to purchase the property from Dampier.⁴ Graham kept horses, stabled horses for other individuals, and gave riding lessons, on Tract 10.

From at least 2002 until sometime in 2007, the Burgs maintained the entire 50–foot wide easement over Tract 10. This included maintenance of the gravel drive, mowing of the grass on either side of the gravel drive, and other basic maintenance.

In 2007, the Burgs began having conflicts with Graham regarding use of the easement. Mrs. Burg testified that she called Graham to inform her that the mowing season was about to start, and requesting that Graham remove trash she had placed in the easement. Graham then approached Mr. Burg to see if he could discharge the mowed grass sideways onto the portion of Tract 10 outside the easement area so her horses could graze on the cut grass. Mr. Burg advised Graham he could not do so as his brush hog discharged grass out the back. Graham then called Mrs. Burg to see if she could mow the easement. Mrs. Burg advised Graham she did not like being put in the middle of the mowing issue as Mr. Burg had already told Graham he wanted to continue to mow the easement. Mrs. Burg testified that Graham was “very angry” after this phone call.

In April 2007, shortly after this conversation, Graham mowed a portion of the easement. A few days later, Mr. Burg mowed the easement. Graham called the Boone County Sheriff's department (“Sheriff's Department”) and reported that the Burgs were trespassing. Graham also claimed that Mr. Burg tried to run Graham and her boyfriend over with the brush hog. No formal charges were filed following the Sheriff's Department's investigation of Graham's accusation.

The Burgs' issues with Graham continued throughout 2007. The Burgs testified that Graham's horses frequently entered their yard, and would eat portions of their garden while leaving manure on their property. Graham began to repeatedly place items in the easement area including trash, hay bales, horses, horse trailers, and parked vehicles. The Burgs testified that on several occasions these items were placed directly on the gravel driveway, requiring them to drive over the grass to reach Tract 9. The Burgs testified that this was especially dangerous in inclement weather because ruts had formed outside of the gravel driveway. Graham and/or Dampier also installed and maintained a fence along either side of the easement area which encroached at various points into the easement area by as much as 11 feet.

The Burgs wrote Graham a letter in September 2007, requesting that the obstacles and encroachments in the easement area, including the fence, be removed. Graham did not honor the Burgs' request, and continued to place obstacles and encroachments in the easement area.

In September 2007, and shortly after receiving the Burgs' letter, Graham called the Sheriff's Department and reported that one of her horses had been stolen. Graham claimed that Mr. Burg shot and killed the horse. The Sheriff's Department concluded that the horse ran through several barbed wire fences and injured herself. The investigating officer “did not observe any visible injuries which appeared to be from any type of weapon.”

The Burgs filed suit against Graham and Dampier in January 2008, in an effort to resolve the disputes over their right to use the easement over Tract 10.

In June 2008, Graham forwarded the Burgs a copy of a letter sent by Graham and Dampier to their counsel, Tom Schneider (“Schneider”).⁵ Among other things, the letter advised that Graham and Dampier wanted to purchase Tract 1 to force the Burgs to access Tract 9 in a different way.

In August 2008, a no-trespassing sign was placed on Tract 10 warning “No mowing or other actions authorized. Civil action pending. All actions considered trespass and/or theft.” The notice listed Graham's name and telephone number.

In August 2008,...