DENISE BOURBON LEE DEARDEN AND MARY DEARDEN v. COLBY BENSON (2026)

Introduction

Denise Bourbon (Bourbon) and married couple Lee and Mary Dearden (the Deardens) appeal from the judgment of the trial court finding that Respondent Colby Benson (Benson) had acquired a portion of disputed land (Disputed Tract) by adverse possession and denying Appellants’ claims for ejectment and trespass, both statutory and common-law. Appellants raise three points on appeal: (1) the trial court's finding that Benson's actions over the statutory period met the criteria for “open and notorious” possession was not supported by substantial evidence, (2) the trial court erred by denying their statutory trespass claim for treble damages, and (3) that denial was not supported by the evidence.

Finding no error, we affirm. On point one, Colby and Brittany Benson's (the Bensons) testimony—which the trial court found credible—is substantial evidence supporting the adverse possession ruling. On point two, the trial court properly denied Appellants’ claim because, inter alia, Benson was the owner of the Disputed Tract by adverse possession, so Appellants could not bring a suit for statutory trespass. Point three is dismissed for substantial noncompliance with Rule 84.04 ¹ because Appellants’ claim is ambiguous, fails to provide a discernable standard of review, and is not supported by a coherent legal argument, preserving nothing for review.²

Factual and Procedural Background

This case stems from a land dispute involving three rural residential properties in Washington County, Missouri. Benson purchased the first (the Benson Property), 3.74 acres, on December 30, 2012. Bourbon purchased the second (the Bourbon Property), 3.5 acres adjoining the northern half of Benson's western border, on November 30, 2016. And the Deardens purchased the third (the Dearden Property), 3.5 acres adjoining the southern half of Benson's western border and Bourbon's southern border, on March 30, 2022. Each party resides on their respective property.

The trouble started when Appellants commissioned a survey (the Survey) in June of 2023. Neither Bourbon nor the Deardens knew the location of their respective boundary lines until the survey was completed. The Survey revealed that a portion of both the Bourbon Property and Dearden Property, the Disputed Tract, was located within the fence surrounding the Benson Property. After the Survey, Appellants sent Benson a letter demanding he remove the fence, restore the property to its previous condition, and pay for damages.

Appellants filed suit against Benson on August 24, 2023 for statutory trespass, common law trespass, private nuisance, and ejectment. Benson filed a counterclaim to quiet title to the Disputed Tract, arguing he had successfully claimed it by adverse possession. A bench trial was held on March 20, 2025. Testimony regarding the events, beginning with Benson's 2012 purchase, was as follows.

The Bensons testified that when they first viewed the Benson Property, the Disputed Tract was already fenced, had already been logged—with all “big timbers” removed—and had an established four-wheeler trail. When they arrived in December of 2012 with their six children, the Benson family immediately began to ride motorcycles and four-wheelers on the trail “almost daily.” Brittany Benson testified she walked the trail each day as well—up to four times a day in the spring, when she hunted mushrooms. The Bensons began clearing brush from the Disputed Tract when they moved in, initially with hand tools, but also with heavy equipment beginning around 2015. The Bensons also kept horses on their property—at first only on weekends, but full-time starting around 2015—and the horses grazed in the Disputed Tract, all the way up to the fence. Benson took responsibility for routine fence maintenance from 2012 until 2020, when the fence was damaged in a storm. He then paid to have it replaced. Benson testified he had begun burning debris in 2012, though the burning and clearing intensified in 2021. The Bensons cleared other refuse, including old gates, tires, hay, and a hot tub. Benson also kept materials within the Disputed Tract.

For her part, Bourbon conceded that she had heard motorcycles for years on her property but had not determined the source. She also admitted that she heard tree removal noises “all the time,” while Lee Dearden admitted to seeing a bulldozer engaged in clearing brush at night. Bourbon also admitted to seeing horses, sheep, and goats within the Disputed Tract. Lee Dearden also testified he had seen a donkey. Both Bourbon and the Deardens observed tires, scrap metal, wood, tractor treads, and other refuse within the Disputed Tract. And both Bourbon and the Deardens testified they had not observed the fence or trail when they first walked their properties (which were heavily wooded in the portion that abutted the Disputed Tract; Mary Dearden even got lost in her backyard on one occasion).

The trial court credited the Bensons’ testimony and ruled that Respondent had acquired the Disputed Tract by adverse possession, thereby extinguishing Appellants’ claims.³ This appeal follows.

Discussion

Point One: Open and Notorious

In their first point on appeal, Appellants argue the trial court's adverse possession finding was not supported by substantial evidence because Respondent's possession of the Disputed Tract was not “open and notorious.”⁴ We disagree, and affirm the ruling of the trial court.

Standard of Review

When reviewing a court-tried case, “an appellate court will affirm the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Ivie v. Smith, 439 S.W.3d 189, 198–99 (Mo. banc 2014) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

“To prevail on the substantial-evidence challenge, [appellant] must demonstrate that there is no evidence in the record tending to prove a fact that is necessary to sustain the circuit court's judgment as a matter of law.” Id. at 200. Appellants must complete three sequential steps:

(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment; (2) identify all of the favorable evidence in the record supporting the existence of that proposition; and, (3) demonstrate why that favorable evidence, when considered along with the reasonable inferences drawn from that evidence, does not have probative force upon the proposition such that the trier of fact could not reasonably decide the existence of the proposition.

Houston v. Crider, 317 S.W.3d 178, 187 (Mo. App. S.D. 2010).

“Substantial evidence is evidence that, if believed, has some probative force on each fact that is necessary to sustain the circuit court's judgment.” Ivie, 439 S.W.3d at 199. “When reviewing whether the circuit court's judgment is supported by substantial evidence, [we] view the evidence in the light most favorable to the circuit court's judgment and defer to the circuit court's credibility determinations.” Id. at 200. We “accept as true the evidence and inferences favorable to the trial court's decree and disregard all contrary evidence.” Id. (internal quotation and alteration omitted).

Analysis

To prove adverse possession, Respondent had to demonstrate possession of the Disputed Tract in a manner that was: “(1) hostile, i.e., under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for a period of ten years occurring prior to the commencement of the action.” Cavin v. Hair, 677 S.W.3d 613, 618 (Mo. App. E.D. 2023). Claimants must prove their claim by a preponderance of the evidence. Id. Failure to establish any of the necessary elements defeats the claim. Id.

Appellants challenge only the “open and notorious” element. Whether a claimant's possession is “open and notorious”—i.e. whether it has provided constructive notice to the record owner—depends on the character and nature of the disputed property. Stratford v. Long, 430 S.W.3d 921, 926 (Mo. App. S.D. 2014). “Knowledge or notice has been held to mean ‘knowledge of all that would be learned by reasonable inquiry’.” Id. (quoting Dobbs v. Knoll, 92 S.W.3d 176, 183 (Mo. App. E.D. 2002)). “The condition of open and notorious conduct does not require proof that the true owner have actual knowledge of the claim, only that the occupancy be conspicuous, widely recognized and commonly known.” DeVore v. Vaughn, 504 S.W.3d 176, 186 (Mo. App. W.D. 2016) (internal quotation omitted). “If actual knowledge is not proved then the claimant must show an occupancy so obvious and well recognized as to be inconsistent with and injurious to the real owner's rights that the law will authorize a presumption from the facts that he had such knowledge.” Stratford, 430 S.W.3d at 926 (quoting Teson v. Vasquez, 561 S.W.2d 119, 127 (Mo. App. E.D. 1977)). Because “every piece of property is unique,” whether facts authorize finding the elements of adverse possession have been satisfied “must be decided in light of its own unique circumstances.” Teson, 561 S.W.2d at 125.

The second step requires Appellants to identify all evidence supporting the existence of the challenged proposition. Appellants identify several examples, albeit with minimal detail: “the Bensons testified their children began using a trail in the [Disputed Tract] for motorcycle riding, and Brittany Benson took walks once or twice a day, maintained an old fence, and cleared brush, and stored materials and vegetation.” Appellants do not argue that these activities could not meet the requirements of “open and notorious” possession, but rather insist that the requirements are elevated in this case because the land in question is secluded, with dense vegetation and trees. Appellants argue, given the character of the land, Benson's activities were too covert to meet the “open and notorious” requirement.

Appellants cite to several comparator cases, but only one which applied a standard not met by the facts of this case: Moore v. Dudley, 904 S.W.2d 496 (Mo. App. E.D. 1995). Moore, however, dealt with a very different kind of tract:

The property in dispute consists of 17 acres covered in hills and woods. There are no buildings or houses nearby. In addition, the disputed land was covered in woods and hills and no extensive clearing or development of the land ever occurred. The trial court's interpretation of open and notorious may take into account the rough and wooded nature of the land.

904 S.W.2d at 497-98 (emphasis added) (citing Teson, 561 S.W.2d at 125).

Here, the Disputed Tract abuts three residential properties, each under four acres, and from each of which the Disputed Tract is visible. And Appellants concede that they had, in fact, seen signs of the Bensons’ use, and could even hear the sounds of motorcycles from their homes. We decline to apply a standard developed for wild, untamed woodlands to a small patch of trees in an otherwise residential setting. See DeVore, 504 S.W.3d at 186-87.

For the third step, Appellants contend that their lack of actual knowledge undermines the finding that Benson engaged in “open and notorious” use.⁵ We disagree. Appellants admitted to seeing livestock on the other side of the fence; to hearing motorcycle sounds for “years”; to seeing refuse and construction materials in the Disputed Tract; and to seeing and hearing Benson using heavy equipment, including a bulldozer, to clear and maintain the Disputed Tract. Second, to the extent Appellants did lack actual knowledge, the most likely explanation seems to be a lack of reasonable inquiry. Appellant Bourbon admitted in testimony, for example, that she had heard motorcycle noises since “a couple years” after purchasing her property in 2016, but never determined the source of the noise. As the trial court explained, the most likely explanation for Bourbon being unaware of the fence is that she never reached the edge of her backyard. Similarly, the trial court noted that the Deardens only observed one survey marker. To the extent Appellants lacked actual notice, they could have acquired it with reasonable investigation. Accordingly, we find the testimony credited by the trial court contains substantial evidence supporting the finding that Benson's possession was open and notorious.

As the maxim goes, “vigilantibus non dormientibus jura subveniunt”—the law assists the vigilant, not those who sleep on their rights. Point one is denied.⁶

Point Two: Statutory Trespass Claim Extinguished by Adverse Possession

In point two, Appellants argue the trial court erred by denying their claim for treble damages for statutory trespass. We disagree. Statutory trespass damages cannot be awarded to a prior owner after a successful adverse possession claim. Finding no error, we affirm the trial court's judgment.

Standard of Review

Questions of law decided in court-tried cases are reviewed de novo. Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012). “With respect to such questions, the appellate court reviews the trial court's determination independently, without deference to that court's conclusions.” Id. at 43–44 (internal quotation omitted).

Analysis

Missouri's trespass statute provides: “If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament ․ the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed or carried away, with costs.” Section 537.340.⁷ “[T]he statute has been interpreted, for more than 150 years, to require that a plaintiff have possession of the affected property in order to state a claim for statutory trespass.” Lewis v. Mason, 561 S.W.3d 443, 446 (Mo. App. W.D. 2018). See, e.g., Cochran v. Whitesides, 34 Mo. 417, 419 (Mo. 1864) (Defendant had actual possession, adverse to Plaintiff, precluding a trespass claim); Brown v. Hartzell, 87 Mo. 564, 568 (Mo. 1885) (“This action of trespass can only be maintained where the plaintiff is in the actual or constructive possession of the property.”). Thus, in affirming the trial court's adverse possession holding, we necessarily affirm the denial of statutory damages: Benson possesses the Disputed Tract, so Appellants cannot bring a trespass action. Point Two is denied.

Point Three: Failure to Comply with Court Rules

Appellants’ third point on appeal ambiguously challenges the trial court's ruling denying their trespass claims against Benson. Because Appellants’ third point does not substantially comply with the requirements of Rule 84.04—and we can discern neither the applicable standard of review nor a coherent legal argument supporting reversal—we dismiss point three without review.

Analysis

Rule 84.04(d)-(e) requires Appellants to include in their points relied upon a concise statement of “the legal reasons for the Appellant's claim of reversible error” and to provide “the applicable standard of review.” “Points that fail to comply with the requirements of Rule 84.04(d) preserve nothing for review and are subject to dismissal.” Malin v. Cole Cnty. Prosecuting Atty, 631 S.W.3d 638, 644 (Mo. App. W.D. 2021). Compliance with Rule 84.04 “is required in order that the appellant may give notice to the party opponent of the precise matters which must be contended with and answered.” Rothschild v. Roloff Trucking, 238 S.W.3d 700, 701 (Mo. App. E.D. 2007) (quoting Thornton v. City of Kirkwood, 161 S.W.3d 916, 919 (Mo. App. E.D. 2005)). Compliance is also necessary “to ensure that appellate courts do not become advocates for the appellant.” Id.

Point three's noncompliance is multifaceted. First, Appellants seem to conflate a “no-substantial-evidence” challenge ⁸ with an “against-the-weight-of-the-evidence” challenge, and we can neither discern what challenge Appellant is making nor determine the appropriate standard of review. Both challenges involve the use of Crider factors, supra, making the reference to those factors insufficient to clarify what Appellants are arguing.⁹ Further, we discern no coherent legal argument in support of the claimed error, and Appellants cite no caselaw whatsoever in their argument section of their initial brief. This Court would be forced to step into the role of an advocate and attempt to construct an argument on Appellants’ behalf. This we may not do. See Burgan v. Newman, 618 S.W.3d 712, 714-15 (Mo. App. E.D. 2026).

Point three is unfortunately so noncompliant and deficient we could not exercise gratuitous review even if we were so inclined. Accordingly, point three is dismissed.

Conclusion

For the forgoing reasons, we affirm the judgment of the trial court.

FOOTNOTES

1.   All rule references are to the Missouri Supreme Court Rules (2025).

2.   We also note that Appellants’ Statement of Facts violates Rule 84.04(c), requiring a “fair and concise statement” of relevant facts. Appellants instead recite their trial testimony—not credited by the trial court—while omitting all facts favorable to Respondent until the Argument section. While such noncompliance would justify dismissing this entire appeal, we prefer to decide cases on the merits where possible. See Steiner v. Stribrny, 677 S.W.3d 833, 839 n.3 (Mo. App. W.D. 2023).

3.   To the extent any of Appellants’ testimony contradicts the Bensons’, the trial court's credibility determination implicitly discredits that testimony.

4.   Appellants also argue that the Court erred in denying their trespass and ejectment claims. To properly preserve a claim of error, an appellant must raise the claim in his point relied on. Lehmann v. Bd. of Educ. of Fayette R3 Sch. Dist., 649 S.W.3d 303, 308 (Mo. App. W.D. 2022). Thus, an argument that exceeds the scope of the point relied on preserves nothing for our review. The Schumacher Grp., Ltd v. Schumacher, 474 S.W.3d 615, 624 n.11 (Mo. App. W.D. 2015). But, as explained supra, we prefer to decide cases on the merits where we can discern Appellants’ separate arguments. Because we can do so here, and because denying the adverse possession point necessarily disposes of their additional claim, we “gratuitously exercise our discretion to review [Appellants’] claims on the merits.” State v. Hernandez, 659 S.W.3d 614, 620 (Mo. App. W.D. 2022).

5.   Bourbon testified she was unaware of the fence until 2023, and the Deardens testified they saw no sign of it when they walked their property, either.

6.   As noted supra, affirming the trial court's adverse possession holding necessarily affirms its trespass and ejectment holdings as well, so we need not address that claim (even if it were properly presented in accordance with rule 84.04, which it was not).

7.   All statutory references are to RSMo (2016).

8.   To the extent this could be read as a no-substantial-evidence challenge, it is nonsensical: Appellants bore the burden of proving the trespass claim, “so a judgment against [them] needs no evidentiary support.” Taylor v. Taylor, 585 S.W.3d 390, 395 (Mo. App. S.D. 2019).

9.   Were we able to discern the nature of Appellants’ challenge and determine the proper standard of review, Appellants’ absolute failure to comply with the second Crider requirement to list all evidence supporting the contested finding would be fatal to their challenge regardless of the applicable standard.

Virginia Lay, Judge

Michael S. Wright, Presiding Judge, concurs. Philip M. Hess, Judge, concurs.