The Law Office of Kurt H King

August 11, 2017

Merger of Title in Same Owner Extinguishes Easement by Prescription and Defeats Adverse Possession

Take, for example, a fact set where two adjoining but separate tracts of land were bought from different owners by the same husband and wife to form a single farm.  Then the husband and wife sell the farm in the two parts to separate new owners.  One new owner wants to claim an implied easement by prescription over the other new owner.  But did easement by prescription survive the merger of title into the husband and wife who owned both tracts of the real estate?

Answer:  No, the doctrine of merger extinguished easement by prescription (which is closely akin to taking of title by adverse possession in Missouri over ten years).

Long-standing Missouri law holds:

“One who owns the fee can not acquire an easement over it.  The easement, if

one existed, is merged into the fee.”  Marshall v. Callahan, 229 S.W.2d 730, 734-35 (Mo. Ct. App. S.D. 1950).

 

“[A]n easement is in general extinguished when the dominant and servient

estates are owned and possessed by the same owner.”  Maune v. Beste, 356 S.W.3d

225, 230 (Mo. Ct. App. E.D. 2011).

 

This result makes common sense–it would fly in the face of logic for the law to enable a person who owns all of a tract of land to turn on himself and try to claim he has made hostile or adverse use of his own land against his own interests.

 

Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Litigation, Personal Injury, General Matters

 

Non-Adjoining Landowners Have No Automatic Right to Access A Roadway

Do landowners whose land does not reach the actual roadway itself have a right to access a roadway over another person’s land?  What if the boundary line reaches into the 60 foot (30 feet each side of middle or roadway) right-of-way but does not reach the roadway itself?

There seems to be a dearth of Missouri case law on this point, but there is inference that such a landowner has to find another way to obtain roadway access if his land does not reach the roadway itself.

In Fortenberry v. Bali, 668 S.W.2d 216 (Mo. Ct. App. E.D. 1984), a case where plaintiffs sought an easement by necessity, we find this inference that it is those plaintiffs whose property intersects or abuts a public roadway who have a right to drive from the public roadway directly onto their land:

“It was not disputed that plaintiffs’ property neither intersected nor abutted a public roadway. Therefore, the sole issue is whether plaintiffs have a legally enforceable right to use any alternative route. Hill v. Kennoy, Inc., 522 S.W.2d 775, 777 (Mo. banc 1975).”

Consequently, a easement over the owner of the land upon which the road lies appears to be necessary for non-abutting landowners to access the roadway.

(This may be an easement by necessity situation if no other means of roadway access is available, but note that inconvenience falls short of necessity.)

Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Litigation, Personal Injury, General Matters

Roadway exception language in Deeds refers to an Easement

Filed under: Litigation,Real Estate,Uncategorized — kurthking @ 4:11 pm
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The language in deeds often “excepts” the roadway.  What does that mean?–the land under the roadway is not conveyed?–an easement is created?  Did the fee title to the land stay with a previous landowner, was it never conveyed, or what?

At least one Missouri case says that such language creates an easement for the roadway with fee simple held by the person who owns the land under the road.

In Ogg v. Mediacom, 142 S.W.3d 801, section III (Mo. Ct. App. W.D. 2004), the court of appeals declared:

“Use of terms such as “right of way,” “road,” or “roadway” as a limitation on

land is a strong, almost conclusive, indication that the interest is an easement.”

 

Apparently, fee ownership belongs to the person who owns the land beneath the road or road right-of-way.

 

Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Litigation, Personal Injury, General Matters

 

July 18, 2017

Bonuses Paid During Marriage based on Pre-marital Work

If, for example, you or your client earned a 2015 profit-sharing bonus  that Ford paid in April 2016, after a marriage earlier in 2016–i.e., after the bonus year but before receipt of the bonus–take comfort in this Missouri case, Sanders v. Sanders,  933 S.W.2d 898 (Mo. Ct. App. E.D. 1996).

The Sanders case applies Missouri’s “source of the funds” rule, and holds that bonuses resulting from pre-marital labor or contributions are non-marital property of the spouse whose labor or contributions warranted the bonus.

Kurt H. King, Attorney at Law

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Workers’ Compensation, Litigation, General Matters

 

Kansas Under-Insured Motorist Coverage

Under Kansas statute K.S.A. 40-284(b), Under-Insured Motorist (“UIM”) automobile coverage pays only “to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” Kerns v. Alliance Indemnity Co., Slip Op. 79948 (Mo. Ct. App. W.D. April 25, 2017).

So, if you carry the minimum 25/50 (in thousands of dollars), your UIM coverage does not pay you a dime because the other driver will have at least the required minimum 25/50 of bodily injury coverage.  Since your $25k of UIM does not exceed the other driver’s $25k of bodily injury, you get zero from your UIM.

(Note: Kansas law prohibits “stacking” of UIM coverage.  K.S.A. 40-284(d))

Even if you buy more than the 25/50 minimum of UIM, it still pays you nada if the other driver has as much or more bodily injury coverage.  For example, if you carry $100k in UIM, and are hit by another driver with $100k in bodily injury coverage, your UIM pays nothing because your UIM of $100k is no greater than the other driver’s $100k of bodily injury coverage!

We wonder if insurance agents explain this to the people buying insurance from them.  If they are, one would expect the buyer to either waive UIM coverage or buy more than teh minimum 25/50 amount.

Kurt H. King, Attorney at Law

20 E. Franklin, Liberty, Clay County, Missouri

816.781.6000

Personal Injury, Workers’ Compensation, Litigation, General Matters

June 27, 2017

Are Administrative Child Support Actions Too Prone to Error?

In my opinion, Administrative actions in Missouri that order a person to pay child support are ripe for error and constitutionally weak.

Too often, the father named on the birth certificate is not the child’s biological father.  He is the mother’s new guy or husband, and maybe she does not even know who is the father but names the one she thinks best under the circumstances.  The mother can point the finger at a guy she knows is not the child’s biological father and the Children’s Division run with it as though the gospel truth.

When the Children’s Division presumes the guy the mother names is the child’s father, a notice goes out to the presumed father advising him of his need to request a hearing if he disagrees with the child support amount proposed by the Division.

A poor, uneducated, or legally inept “father’ may not request a paternity test or other action to refute the Division’s child support proposal.

Or, the presumed father may have been supporting a child not his for years and believe he is the father of that child, thus seeing no need for paternity testing.  Or he may know that he is not the biological father but have cared and loved the child for years, leading him to consider the child as his own and not request paternity testing.

To avoid these mistakes, paternity testing should be required in all Children’s Division cases.  Cost of testing weighs far less than harm to presumed fathers who are not the actual biological father of the child.  Too, such mistakes cost the real, biological father an opportunity to know and be a part of the child’s life.  Perhaps the ultimate loser is a the child who grows up never knowing his real father.

Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Litigation, Other Matters

 

When Dad is Not the Dad but has been the Father for Years

It happens that a guy will knowingly marry a lady pregnant by another guy or with a young child by another man.  Then years later when the child is in his teens–even late teens–the couple divorces.  The non-biological “father” to the child may love the child and want to be the dad.  The “real” biological father may not know of the child or may not want to have a connection–and child support obligation–so late in the childhood of the child.

While it may be tempting to just tell the Court the non-bio husband is the child’s father–he may even be named as such on the birth certificate–is that fair to the biological father to by-pass his rights and give him no chance to step in and connect to his child?–No.  And, could the attorneys involved be sued later by the bio dad for fraud?–Probably so!

Maybe a safe way to handle this situation is to join the real bio dad to the case, with a count added to establish his paternity (and may be for reimbursement of back support provided–see final paragraph of this post).  Then, if the bio dad wants to connect to his child, the Count is in position to so order.

But what if the bio dad wants not to be declared the child’s father and/or not to pay child support?  (Maybe he married and has other children who he is working hard to support.)

What if the child is 15, 16, or 17 years old at the time of disposition of the divorce case?

Do the lawyers run the divorce through as though the non-bio father is the dad of a child of whom he is not the real biological dad?  What if they don’t tell the Court about who the real bio father is? 

Does that position violate lawyer ethics?–malpractice?–fraud?

But what if the lawyers tell the judge, and the judge says okay to that approach?  Are the lawyers off the hook and safe from bar complaints and lawsuits against them down the road?

What if representation by counsel that child is the non-bio guy’s child later costs the child an inheritance–or Social Security benefits–or biological grandparents learn they have a grandchild they never knew their son fathered?  Or maybe the child quickly becomes wealthy, dies fairly early, and leaves a large estate of which the biological father or his relatives want a decent share?

I think a judge (and lawyers) should–as one I respect has–flat out refuse an order holding the non-bio guy to be the father of a child he did not biologically father.  If he is not the dad, then he is just not the dad.  Sometimes saying “no, period” saves a lot of trouble down the road.

One side issue may also surface: the non-bio husband may sue the biological father for five years back support the non-bio guy provided the child.  Missouri statute 210.828, subsection 2, provides:

“A parent’s retroactive liability to another party for reimbursement of necessary support provided to the child for whom a parent and child is established under section 210.817 to 210.852 is limited to a period of five years next preceding the commencement of the action.”

Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Litigation, Other Matters

April 7, 2017

Transfer of Guardianship Between Missouri and Another State

Missouri law 475.531 allows transfer of guardianship and conservatorship to another state.  For example, if the Ward moves to reside permanently in Arizona with his guardian, the guardianship case may be transferred to a new case in Arizona and the former case closed in Missouri.

The five part process is basically:

  1.  Petition the court in the State of Missouri where the case is being sent FROM for permission to ask the other state (Arizona, for example) to accept the case;
  2. File a motion or petition in Arizona to issue a provisional order (temporary or conditional) accepting the case;
  3. Present/file the provisional order from Arizona with the Missouri “sending” court and file motion and order in the Missouri court for final permission to transfer to Arizona;
  4. Present/file the final permission to transfer by the Missouri “sending” court with the court in Arizona (for example), and request a final order by the Arizona court accepting the transfer from Missouri;
  5. Present the final order from Arizona accepting transfer with the Missouri “sending” court, along with a request to terminate the case in Missouri (and Final Statement).

The local Clay County, Missouri, court presently charges no filing fee on such a petition to transfer.

Kurt H. King, Attorney at Law, 20 E. Franklin, Liberty, Clay County, Missouri

816.781.6000

General Practice including Guardianships & Conservatorships, Estate Planning, Family Law, Personal Injury law, Workers’ Compensation

 

 

November 21, 2016

EMBRYO IN VITRO–Missouri’s McQeen v. Gadberry Case

November 15, 2016, the Eastern District issued its opinion in a Missouri first-impression pre-embryo in vitro divorce case–McQueen v. Garberry, ED 103138 (Mo. Ct. App.).

The Court’s decision runs long but warrants a full read; its core holding/ruling is:

Some key facts discussed by the Court include:
1.  Neither wife McQueen (attorney) or husband-Gadberry (soldier, MBA) are impotent and each can procreate children naturally–their reason for using in vitro was husband’s impending tour of combat duty–two of the four embryos were implanted and born alive and presumably well to the couple;
2.  Custody sharing of the couple’s two children was said to be difficult;
3.  Husband did not want more children with McQueen, who filed for the divorce;
4.  Wife may have pulled some shenanigans by handwriting in the margin of the embryo storage documentation that “use” of the embryos would go to her in case of divorce–husband testified that language was not there when he signed it; she used blue and black ink in the same area; signed but notarized later; etc., causing the trial court to find the documents to be insufficient to hold husband in agreement on such an important issue.
Ultimately, the court of appeals affirmed the trial court’s order casting the embryos as marital property of a “special character” and requiring they be stored unless and until both McQueen and Gadberry execute a sufficient written agreement otherwise.
Kurt H. King
Law Office of Kurt H. King, 20 E. Franklin Street, Liberty, Clay County, Missouri 64068
816.781.6000
Missouri Family Law, Personal Injury, Workers’ Compensation, General Matters

November 9, 2016

Missouri Fence Law

In Chapter 272 of Missouri’s Revised Statutes, you find two sets of fence law back to back, General fence law up front.  Counties can opt for the second set of statutes (Optional fence law) if they prefer.    A minority consisting of northern Missouri counties use the Optional version more in tune with rural areas.

It can be tricky finding out if a particular county has opted out, as it may have happened years before the current county officers took office.  No one at the courthouse may know or want to take the time to check old records and find out for you.  While each county should have its fence law written and available to the public, some do not.  You may be referred to the University of Missouri agricultural extension office for a list or map of those counties which have opted out.  A good article and map is presently available on-line.

While there are several differences in the two fence laws, an important one is that under the General fence law a landowner who does NOT place livestock up against the fence need not pay for half the cost of a boundary fence with his neighbor who does run livestock against the fence.  Section 272.132.

Amazing how so many of us are just a generation or two away from our farm ancestors, but have never encountered the fence laws our grandparents knew well.

Keep in mind the old axiom “a good fence makes for good neighbors”–it still holds water.  Surveys cost but save the expense of rebuilding an off-line fence and paying lawyers on lawsuits claiming trespass, adverse possession, tacking, quiet title, and so on.

Kurt H. King

Law Office of Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

General Litigation and Matters, Personal Injury, Workers’ Compensation, Family Law

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