Adverse possession could come into play after all in the property dispute over the shoreline of the Lake of the Ozarks.


Adverse possession could come into play after all in the property dispute over the shoreline of the Lake of the Ozarks.

After further research on his property, Charles "Bud" Sanzottera initially found that he didn't own what he thought he did. Now, he's not so sure.

The abstract of the deed showed lot lines that ran down to the elevation of 660', or the variable water's edge. However, the records that the deed was subject to showed that Ameren Missouri owned to the 665' elevation.
Those records show that Union Electric Land and Development Company conveyed the land below the land below the 665' to Union Electric of Missouri with an easement on the property that the two entities shared, acting as a covenant running with the land.

The easement gave use of the land for "any and all purposes" as long as any improvements did not interfere with the operation and maintenance of the dam.

The deed also assigned responsibility for property taxes on the land covered by the easement to the second party - Union Electric Land and Development.

Union Electric Land and Development then sold the excess land. The property below the 665' was, however, subject to the easement and its requirements "forever," according to the deed.

Sanzottera purchased the house and property over 20 years ago, believing he owned to the 660'. He has paid the taxes on it ever since.

Adverse possession is a common law concept that grants title to real property without compensation by the possession of the property for a specified length of time.

Missouri Revised Statute 516.010 establishes adverse possession after 10 years.

Sanzottera previously believed that utility companies were exempt from adverse possession under RSMo 516.090.
It states, "Nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered, or appropriated to any public, pious, or charitable use, or to any lands belonging to this state. This section shall be construed to prohibit any judgement granting adverse possession to a claimant where the defendant possesses an interest in land described in a recorded deed and is a public utility".

However in 2000, the Missouri Court of Appeals, Southern District, Division Two upheld an adverse possession claim against an electric company on the grounds that the indirect benefit of generating electricity did not fall under public use as intended by 516.090.

In Empire District Electric Company v. Gaar, the company which operates the Ozark Beach Hydroelectric Project at Lake Taneycomo appealed a trial court decision to award Lois Gaar adverse possession of land she had paid property tax on for more than 10 years.

The appeal contended that the land was devoted to public use because the Federal Energy Regulatory Commission (FERC) through its licensing process and mandate from the Federal Power Act had determined that the entire Project served the public interest.

For that reason, it argued that the Supremacy Clause of the U.S. Constitution - the federal government preempts state law - would be in effect.

Public interest as defined by FERC under the Federal Power Act includes protection of fish and wildlife and their habitat, the development of public recreation and project reservoirs and the preservation of environmental amenities.

FERC included all lands within the boundaries of the Project in the licensing application and determined the public necessity and utility of the entire area not just the electrical facilities, the appeal by Empire argued.
The appellate court's decision states "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.'"

Empire failed to convince the appellate court that 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."

The court was also not persuaded that FERC was authorized by Congress to "determine that the land in question is 'given, granted, sequestered, or appropriated' to a public use for the purposes of 516.090."

Empire claimed "public use" was not limited to "parks, streets, or other areas where people may freely enter," as the company claimed was determined by the trial court.

The appellate court disagreed, citing several examples of public use in case law. In all of the court cases, the general public derived a direct benefit from the use of the land.
The appellate court decision also notes that Empire is a corporation operating for profit.

"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 the Appellant have intentions to use it for this purpose in the future," the appellate court stated in its judgement in favor of Gaar.

The Camden County Commission's proposed Coordinated Land Use Plan cites Empire v. Gaar. In the CLUP, Camden County proposes that lands located above the 660' elevation be excluded from the revised Project boundary, with the exception of the 662' contour boundary being employed in areas containing wetlands that have been previously identified.

"Property taxes from the variable water's edge, or 660' contour, landward, have been paid by the adjacent fee owners for many decades. This means that multiple decades of property taxes were paid by successor owners prior to the relatively recent 2007 modification of Missouri RDMo 516.090, and prior to the creation of the FERC in 1977 which marks the beginning point in time for the FERC authority and the current trend towards increased regulation. While Camden County recognizes that the FERC is a restructuring of the Federal Power Commission under the United States Department of Energy, it is the opinion of Camden County that unauthorized over-reaching regulation began at the inception of this reformation," the proposed CLUP states. "It has been upheld whenever challenged that private property rights are a State's Rights issue. Under Missouri land law, the continual payment of property taxes on a parcel for 10 more consecutive years causes the subject land to ripen to fee ownership for the payee by default without court action (this premise has been upheld, with respect to utilities, by case law in The Empire District Electric Company vs. Gaar)."