Childress v. Lovins, 082719 MOCAS, SD35435

Docket Nº:SD35435
Opinion Judge:PER CURIAM.
Party Name:LEWIS CHILDRESS, ANDREA HOPPER, CHRISTA CHILDRESS, LARRY CHILDRESS and GARY CHILDRESS, Petitioners-Respondents, v. ALLAN and TINA LOVINS, husband and wife, Respondents-Appellants.
Judge Panel:Before Lynch, P.J., Rahmeyer, J., and Francis, Jr., J.
Case Date:August 27, 2019
Court:Court of Appeals of Missouri
 
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LEWIS CHILDRESS, ANDREA HOPPER, CHRISTA CHILDRESS, LARRY CHILDRESS and GARY CHILDRESS, Petitioners-Respondents,

v.

ALLAN and TINA LOVINS, husband and wife, Respondents-Appellants.

No. SD35435

Court of Appeals of Missouri, Southern District, First Division

August 27, 2019

APPEAL FROM THE CIRCUIT COURT OF WEBSTER COUNTY Honorable Kenneth F. Thompson, Associate Circuit Judge

Before Lynch, P.J., Rahmeyer, J., and Francis, Jr., J.

PER CURIAM.

Allan and Tina Lovins appeal the trial court's January 29, 2018 judgment that condemned the Childress Cemetery, which was located on land owned by the Lovins, vested title to the cemetery in Webster County, and assessed costs in the amount of $2, 874.85 against the Lovins. Five members of the Childress family ("the Childress petitioners") sought the condemnation pursuant to sections 214.200 and 214.080 and Chapter 523 of Missouri's statutes.1 The Lovins raise four points. We deny the first three points, but grant the fourth point and remand to the trial court for it to redetermine and reassess costs under Rule 86.09 rather than Rule 77.01 and section 214.120.2

Facts and Procedural History

Trial

A trial to the court occurred on August 10, 2017. Larry B. Childress, who lived in Rogersville, Greene County, at the time of the trial and is a third cousin to Lewis, Christa and Gary Childress and a third cousin once removed to Andrea Hopper, testified as follows. Larry lived on a farm located just south of the Childress Cemetery from the time he was born in 1947 until he left home in 1969. Larry and his father, mother and brother have visited the Childress Cemetery "[m]any times" "over the years." Larry's great-great grandparents "settled" on the property that now contains the Childress Cemetery "around 1850" and Larry believed started the Childress Cemetery "sometime in the 1850's" - a Childress family member was buried there at least as early as 1862. Allan and Tina Lovins now own the land that contains the Childress Cemetery. Larry's family has maintained the Childress Cemetery "over the years." Larry's great-great and great grandparents and a great aunt are buried in the Childress Cemetery - the great aunt was "buried there fairly recently, the last - probably 20 years." The most recent burial at the Childress Cemetery was in 2009, and was a Childress family member. "There's vacant area within the cemetery for other burials" on a "first come first served" basis.

"[O]ver the years, there's been some difficulty for the family to get access to the cemetery" though Larry has "always managed to be able to get to the cemetery." In a letter dated March 21, 2017, the Childress family offered to pay Allan and Tina Lovins $1, 500 for the Childress Cemetery, but that offer was rejected. Larry testified that the Childress petitioners "are petitioning the Court to condemn the property as a private cemetery to be deeded to the public for future maintenance and care of that cemetery of the people that are buried there and the future burials that will take place at that location."

Gary L. Childress, who lived in Branson at the time of the trial and is related to Lewis, Christa and Larry Childress and Andrea Hopper, added the following testimony. The deed that conveyed the land containing the Childress Cemetery "out of the Childress family" contained a restriction that "allow[s] the Childress family to have access to the property to maintain and care and continue the cemetery." Farmland surrounds the Childress Cemetery, and Gary has "seen corn there, and I know that sometimes it's pasture." In about 2007 during a "Childress reunion," Gary and numerous relatives were unable to reach the Childress Cemetery without walking because a corn crop "blocked" Gary and his relatives from driving a bus to the cemetery.

After the Childress petitioners rested, Allan Lovins took the witness stand and testified as follows. Allan and his wife Tina own a sixty-six acre tract that includes the Childress Cemetery. The Lovins purchased the tract in "about 2002, 2003 somewhere," and were aware the deed reserved "ingress and egress" to the cemetery to the Childress family. The Lovins grew corn "for at least five years, four or five years" and explained to the Childress family "that corn was just a 90-day event." During the years the Lovins grew corn, the Lovins followed the corn with wheat and pasture rotations. The wheat did not prevent access to the cemetery, and the Lovins "left a route" through the corn for access to the cemetery. The Childress family could not understand the explanation so the Lovins switched to a hay crop, which grew very tall because of a "rain event" and caused the Childress family to threaten to sue. The Lovins "mowed" the cemetery "for around six years," and the Childress family paid for this service. A previous lawsuit resulted in an "agreement for . . . ingress and egress at that point in time." Allan believed he and his wife had given the Childress family ingress and egress.

The Lovins then rested, and there was no rebuttal...

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