Let's see... if they are not willing to acknowledge the easements that have been held and honored for decades as an instrument that grants property owners the right to said property...maybe we should look at how Missouri Courts regard adverse possession in situations with the FERC and a utility company like Ameren to get an idea as to whether or not Lake of the Ozarks residents have the reasonable expectation to any protections based on what the state of Missouri says about a dilemma like ours.
ADVERSE POSSESSION
Defintion: In common law, adverse possession is the process by which title to another's real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner's rights for a specified period of time. Circumstances of the adverse possession determine the type of title acquired by the adverse possessor, which may be fee simple title, mineral rights, or another interest in real property.
Adverse possession requires five elements in regards to the possession of the property[1]:
1. Actual possession: its a function of the type of property, location, and uses. Paying taxes may or may not be required as proof.....
2. Open and notorious: adverse possessor’s use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim.
3. Exclusive: adverse possessor holds the land to the exclusion of the true owner.
4. Hostile or adverse: Objective view: used without true owner’s permission and inconsistent with true owner’s rights.
5. Continuous: adverse possessor must, for statute of limitations purposes, show that property was held continuously for the entire limitations period. Must use as a true owner would for that time. When is the use significant enough to start the running of statute of limitations. This element is focused on adverse possessor’s time on the land, not how long true owner has been dispossessed of it.
In addition, some courts require (by common law or statute):
6. Claim of title or claim of right 7. Good faith or bad faith 8. Improvement, cultivation, or enclosure 9. Payment of property taxes
In simple terms, this means that those attempting to claim the property are occupying it exclusively (keeping out others) and openly as if it were their own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title. Where the property is of a type ordinarily only occupied during certain times (such as a summer cottage), the adverse possessor may only need to have exclusive, open, and hostile possession during those successive useful periods, making the same use of the property as an owner would for the required number of years.
Now let's look at this case from the Missouri Courts:
http://caselaw.findlaw.com/mo-court-of-appeals/1012184.html
This case involves a Lady, Ms. Lois Gaar, who filed an adverse possession claim against Empire Electric and won. This case below is the court's response to Empire's appeal to the ruling made in favor of Ms. Gaar. NOTE: This utility is also regulated by the FERC. I will only hit the highlights. Please read the whole response above for all details.
THE EMPIRE DISTRICT ELECTRIC COMPANY V. GAAR
MISSOURI COURT OF APPEALS, SOUTHERN DISTRICT, DIVISION TWO
THE EMPIRE DISTRICT ELECTRIC COMPANY, Appellant, v. Lois M. GAAR, Respondent
No. 23242
July 13, 2000
Appellant (EMPIRE ELECTRIC) contended that its land was given to a public use and therefore protected against adverse possession claims by 516.090.1 The trial court rejected Appellant's argument and vested title in Respondent. This appeal followed.
......Appellant continues to operate the Project and has been licensed by the federal government to do so since 1958. The Federal Energy Regulatory Commission (FERC)licenses the Project's "to further the public interest by meeting public needs including, but not limited to, the public supply of electricity, flood control conservation efforts, and public recreation."
....The 1992 license states that the Project consists of "all lands to the extent of the licnesee's interest in those lands, enclosed by the project boundary". Although Appellant had not entered upon the property in question for the ten year period prior to March 31, 1996, and it had no current plans to use the property in connection with the delivery of hydroelectric power, it included the property within the Project bound Appellant maintained that all property within the Project boundary was put to public use and therefore protected against Respondents adverse possession claim by 516.090, which provides that no statute of limitation shall extend to lands "given, granted, sequestered or appropriated to a public use."
The trial court held a hearing on the matter on August 16, 1999. The sole issue presented to the trial court was whether Respondent could adversely possess property included within the Project boundary. On August 24, 1999, the trial court issued Findings of Fact and Conclusions of Law determining that "the property claimed by (Appellant) has not been devoted to a public use." The trial court found that although the public derives an indirect benefit from Appellant's ability to generate electricity, this does not amount to a public use as contemplated in 516.090. The trial court then concluded that the statute did not bar Respondent's adverse possession claim. The court subsequently entered a judgment dismissing Appellant's claim and quieting title in Respondent's name.
......In Points I, III, and IV, Appellant raises the issue of federal preemption.2 In each of these points, Appellant claims the Supremacy Clause of the United States Constitution preempted the trial court from concluding that the disputed property was not dedicated to a public use for the purposes of § 516.090 because the land falls within the Project boundary and FERC had already made a binding determination as to the public utility of the land.
The Supremacy Clause 3 empowers the federal government to preempt state laws to the extent it believes that such action is necessary to achieve its purposes. Silvey v. Mallinckrodt, Inc., 976 S.W.2d 497, 498-99 (Mo.App.1998). The law of preemption is well-settled:
[The federal government may preempt state laws] by federal statute or by federal regulations which have been properly adopted in accordance with statutory authorization. Thus, a federal agency acting within the scope of its congressionally delegated authority may preempt state law.
......In its first point on appeal, Appellant contends that the trial court erred in finding the property had not been devoted to public use because FERC, “through its extensive licensing procedure mandated by the Federal Power Act, has determined the entire Project, including the subject property, serves the public interest.” Appellant suggests that FERC's decision to issue the license amounted to a final and binding determination as to the “public utility” of the land. Appellant argues that under the Supremacy Clause of the United States Constitution the trial court was preempted from making its independent finding that the land was not put to a “public use” as contemplated by § 516.090.
Appellant fails to cite, and our research failed to reveal, any cases in support of its proposition that the mere issuance of an operating license by FERC bound the trial court to apply § 516.090 to the property at issue.
Appellant notes that FERC has issued orders that broadly define the public interest under the Federal Power Act to include “the protection of fish and wildlife and their habitat, the development of public recreation and project reservoirs, and the preservation of environmental amenities.” Public Utility District No. 1 of Lewis County, Washington, 80 FERC 61,350, page 7, FERC Records & Information Management System (Sept. 25, 1997). Appellant equates a determination that a project is in the “public interest” in the context of FERC's licensing procedures with “public use” for the purposes of § 516.090.
Appellant concludes that prior to issuing the 1992 license, FERC assessed all land included within the boundaries of the Project in the license application and determined the public necessity and utility of the entire area, “not just the electrical facilities within the Project.” This contention ignores the language in § 796(11) of the Federal Power Act that defines a “project” to include only “lands or interests in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit.” (Emphasis added). This section necessarily limits FERC's determination that the Project serves the public interest to include only those lands that are “necessary and appropriate” for the generation of hydroelectric power by Appellant.
It is undisputed that Appellant had not entered or used the property in question for at least the ten years prior to April 1996. Appellant does not contend it used the disputed property to generate hydroelectricity or for any other purpose contemplated by the FERC license. When FERC issued the 1992 license, Appellant had never asserted any ownership interest in the subject property. At that time, Respondent's home and other improvements occupied the land. Appellant was not even aware it had any interest in the land occupied by Respondent until it had the area surveyed in 1996 in contemplation of leasing the land to a third party. Appellant also conceded it had no plans in the immediate future to use the land to further the purposes of the Project.
In light of these facts, Appellant fails to persuade this Court that in 1992, FERC intended to make a binding determination that the disputed property “serves the public interest” because it is “necessary or appropriate” in the maintenance or operation of the Project. Furthermore, Appellant offers nothing to suggest that by authorizing FERC to determine whether the land facilitates the “public interest” for the purposes of its licensing procedures, Congress intended to authorize FERC to make a binding determination that the land in question is “given, granted, sequestered, or appropriated” to a public use for the purposes of § 516.090. Accordingly, we cannot conclude that the mere issuance of the operating license by FERC precluded the trial court from determining that the disputed land was not put to a public use for the purposes of § 516.090.
Finally, Appellant's 1992 license appears to recognize the potential that Appellant may face adverse possession claims to some of the Project land. The license specifically states that the Project consists of “all lands, to the extent of licensee's interest in those lands, . ․” This language lends no support to Appellant's claim of immunity from an adverse possession claim under § 516.090. Point I is denied.
......4. Although the public derives an indirect benefit from [Appellant's] generation of electricity and its operation of [the Project], the public may not enter on and use [Appellant's] property in the manner contemplated by R.S.Mo. § 516.090.
Appellant claims the trial court misconstrued “public use” to be limited to “parks, streets, or other areas where people may freely enter.” We disagree.
.......As articulated in Dudley, the rationale behind the enactment of § 516.090 was to protect against the loss of public lands due to the carelessness or oversight of the people charged with protecting the public's interests. Section 516.090 has never been applied in any reported case to the situation presented here. Appellant is a corporation operating for profit and the primary benefit of its shareholders. One of its business endeavors is producing hydroelectricity. The land in question has never been used to aid in Appellant's production of electricity, nor does Appellant have intentions to use it for this purpose in the future.
Although there may be some situations where § 516.090 operates to protect lands owned by a utility and used in the production of electricity, Appellant is hard-pressed to apply the rationale behind the enactment of § 516.090 to the facts of this case. We cannot say the trial court erred in determining the disputed land did not qualify for the “public use” protection under § 516.090. Point II is denied.
Without question, this is not legal advice. Please read the entire case and seek the advice of legal counsel in matters such as the above in determining whether you may have an adverse possession case based on the Gaar case and any others. Only the high points were pulled out and referenced. Please read the whole document. Undoubtedly, there has been a very convincing precedent set by the courts in Missouri already in a case that is similar to ours here at Lake of the Ozarks when dealing with a private utility and the FERC. The bonus that we may have is the added protection of the easement as shown in most deeds here on our lake. Do your own research. You may use the above case as a tool to investigate what options you could have.
If you have questions about your particular situation an attorney very familiar with the Gaar case and how it applies at LOZ is a man named Tim Sear (816) 753-1000.
Thanks you! This information is the most pleasing of any yet. If you only change the names stated in this case .... I feel this case fits me like a glove. Again thanks.
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