                SUPREME COURT OF MISSOURI
                                            en banc
INCLINE VILLAGE BOARD                      )               Opinion issued April 30, 2019
OF TRUSTEES,                               )
                                           )
              Respondent,                  )
                                           )
vs.                                        )              No. SC97345
                                           )
MATTHEW F. EDLER and                       )
ANDREA EDLER,                              )
                                           )
              Appellants.                  )

          APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY
                     The Honorable Daniel G. Pelikan, Judge

       Mathew and Andrea Edler appeal from a judgment ordering them to remove a dock

they built on a lake that abuts their home but that is owned by a neighboring subdivision.

Although Missouri recognizes riparian rights for properties abutting natural bodies of

water, this lake is artificial, as it was built by the founder of the adjoining subdivision and

has since been maintained by the owners of properties in that subdivision. The Edlers have

never had the right to use the lake based on their ownership of the abutting land, nor have

they otherwise established an easement for use of the lake. In the absence of such an

easement, they did not acquire riparian rights in the lake. The judgment directing them to
remove the dock is affirmed. The award of attorney’s fees to the trustees is reversed as no

special circumstances justifying such an award were shown.

I.     PROCEDURAL AND FACTUAL BACKGROUND

       The circuit court made findings of fact based on a stipulation of the parties as

supplemented by limited additional testimony. Neither party challenges these findings on

appeal. It found that, in 1974, Sherwood Builders, Inc., built the subdivision Incline

Village in St. Charles County. As an amenity for Incline Village, Sherwood dammed a

creek and created a man-made lake called Main Lake (but in some documents referred to

as Incline Village Lake). Incline Village subdivision surrounds only a portion of Main

Lake. Land not owned by Incline Village abuts other portions of Main Lake. The lakebed

itself, however, is entirely within Incline Village, and it is conceded no properties outside

Incline Village have any ownership interest in the lakebed.

       Sherwood Builders also established an “Indenture of Trust and Restrictions of

Incline Village,” which created a board of trustees (“trustees”) tasked with maintaining

Main Lake, collecting assessments for its upkeep, and enforcing certain restrictions on its

use. Among other provisions, the indenture provided:

              No structures or other improvements shall be made on or to any
       common area, including any body of water, other than such structures or
       improvements which are made by the trustees for the benefit of all lot owners.
       Except that, the owner of each lot which abuts any body of water, may
       construct one boat dock on such body of water, provided that, said boat dock
       extends from said lot and is first approved in writing by the trustees.




                                                 2
       Although this provision prohibits the Incline Village lot owners whose properties

do not abut Main Lake from building docks on the lake, all Incline Village lot owners

otherwise have the right “to the exclusive use and benefit” of Main Lake.

       In 1996, Sherwood Builders conveyed all the land on which Incline Village sat,

including the Main Lake lakebed, to the trustees. That year, a circuit court ordered Incline

Village lot owners to begin paying a “special assessment” of $415 per year for five years

to fund the improvement of Main Lake. The court also ordered the lot owners to pay an

annual assessment fee of $100 for a “preventative and remedial maintenance program”

over the life of Main Lake. In 2012, the trustees entered into a class action settlement with

the Incline Village lot owners that raised the minimum per-year assessment fees to $495 in

addition to the special assessment. The trustees used the money from these assessments to

dredge excess silt from the lakebed and to heighten the dam. Through these assessments,

to date, the trustees have spent approximately $2.864 million in maintaining Main Lake.

       In 1997, Peter Lenzenhuber began acquiring property that abuts portions of Main

Lake but is not a part of Incline Village. The lots on this property became part of Sumac

Ridge subdivision. The circuit court found Lenzenhuber had decided, “based on the cost

of joining Incline Village … and the potential future liabilities associated with the lake at

Incline Village, I see no reason to have Sumac Ridge join Incline Village. … Purchasers

of Sumac Ridge are aware that the lake is owned by Incline Village Trustees.”

Accordingly, Lenzenhuber’s deed, which includes the lot the Edlers eventually purchased,

specifically states the transfer is of certain described property but “EXCEPTING

THEREFROM those parts conveyed to the Trustees of Incline Village by deeds recorded

                                                 3
in Book 1099 page 25 end Book 1237 page 55 of the St. Charles County records” and

“EXCEPTING THEREFROM the following: INCLINE VILLAGE LAKE.”

       Matthew and Andrea Edler own a home and another lot in the Incline Village

subdivision, neither of which abuts Main Lake, as well as the lot they purchased in the

Sumac Ridge subdivision that abuts Main Lake. The Edlers pay the annual assessment on

their Incline Village property to maintain Main Lake and, in accordance with the express

terms of the Incline Village indenture, have the right to Main Lake’s “exclusive use and

benefit.” But, as the Edlers admit, the indenture explicitly does not allow them to build a

dock because their Incline Village property does not abut Main Lake, and the original

documents transmitting property that included their lot in Sumac Ridge expressly excluded

transfer of any rights to the lake. The circuit court found the Edlers’ own deed is silent

about any right to use Main Lake.

       The circuit court found at least one of the trustees had told the Edlers they could not

build a dock on Main Lake before construction began, and the parties stipulated the trustees

objected to the building of the dock. The Edlers, nonetheless, constructed a floating dock

on Main Lake at the point where their Sumac Ridge lot abuts the lake. The Incline Village

trustees brought suit seeking a declaratory judgment, damages for trespass, and the removal

of the dock.

       Based on the parties’ joint stipulation of material facts as supplemented by limited

additional testimony, the circuit court ruled in favor of the trustees. It held the Edlers had

no riparian rights to Main Lake from their ownership of the Sumac Ridge lot, and the

Edlers’ construction of the boat dock on Main Lake was an unauthorized use of the trustees’

                                                 4
property. It ordered removal of the dock. It also found special circumstances existed

supporting the award of attorney’s fees of $70,000 in favor of the trustees because “the

Defendants’ built their dock on Plaintiffs’ property without seeking permission from the

Plaintiff and after having been told by Plaintiff that the Defendants did not have the right

to build on Plaintiffs property.” The Edlers appeal.

II.    STANDARD OF REVIEW

       Because the parties submitted a joint stipulation of material facts, “the only question

before this court is whether the trial court drew the proper legal conclusions from the facts

stipulated.”   Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979) (internal

quotation omitted). This Court reviews determinations of law de novo. ITT Commercial

Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). 1

III.   THE EDLERS DO NOT HAVE RIPARIAN RIGHTS TO USE MAIN LAKE
       BECAUSE IT IS AN ARTIFICIAL LAKE AND THEY HAVE NO OWNERSHIP
       OR EASEMENT RIGHTS TO ITS USE

       A riparian right is “[t]he right of a landowner whose property borders on a body of

water or watercourse. Such a landowner traditionally has the right to make reasonable use

of the water.” Riparian Right, Black’s Law Dictionary (10th ed. 2014); Bollinger v. Henry,

375 S.W.2d 161, 166 (Mo. 1964). Generally, riparian rights arise naturally as an incident

of owning land that abuts a body of water. “In all states where the common law has not

been changed, the owners of land abutting on bodies of water are accorded certain rights



1
  While a few of the circuit court’s findings differ slightly from the stipulation, presumably
based on the testimony given as a supplement to the stipulation, there is no contention that
the record does not support the circuit court’s factual findings.
                                                 5
by reason of their adjacency which are different from those belonging to the public

generally, and are comprehended within the general term ‘riparian rights.’” 1 Henry Philip

Farnham, Law of Waters and Water Rights, 278 (1904).

       In accord with these principles, this Court has held “[r]iparian rights come from the

ownership of land abutting the water, and arise as an incident of the ownership of the

‘upland,’ regardless of the ownership of the submerged land.” Bradley v. Cnty. of Jackson,

347 S.W.2d 683, 688 (Mo. 1961); accord Edmondson v. Edwards, 111 S.W.3d 906, 909

(Mo. App. 2003) (“A riparian owner is an owner of land bounded by a watercourse or

through which a stream flows”) (internal quotations omitted). The common law in

Missouri and elsewhere draws a distinction between land abutting natural bodies of water

and land abutting artificial bodies of water when determining whether riparian rights exist,

however. 2

       For instance, Farnham’s treatise on water rights states:

              Rights may be acquired in an artificial condition of water in the same
       way that they can be acquired in real estate generally. This may be by grant,
       contract, express or implied, or by prescription. … Of course, the principles
       by which the rights in this kind of water courses are governed are entirely
       different from those governing natural water courses. In the latter, as has
       been seen, the right is given by nature, and the riparian owner has a right to
       enjoy it as it flows along, and he loses none of his rights by mere nonuser.
       In case of the artificial course, however, there is no natural right to it. It
       must originate in grant, contract, or prescription, and the rules governing its


2
  The term “riparian rights” is technically incorrect in the context of lakes. The English
word “riparian” derives from the Latin ripa, meaning the bank of a stream. Webster’s
Third New International Dictionary, 1960 (2002). The proper term here would be “littoral
rights,” because the English word “littoral” derives from the Latin littus, meaning the shore
of a lake or ocean. Id. at 1323. But the term “riparian rights” has come to include the
rights of landowners to all bodies of water, and the Court will use it here.
                                                 6
       acquisition and loss are similar to those governing other artificial uses of
       property. The right to the water course is a proper subject-matter for contract.

Farnham, supra, at 2407-08 (emphasis added).

       Bollinger noted, “As a general rule riparian rights do not ordinarily attach to

artificial streams in artificial channels.” 375 S.W.2d at 166. This distinction rests at least

in part on the need to maintain artificial bodies of water:

              Because the construction of a man-made water body often involves
       the expenditure of substantial sums of money and the expense is not, as a
       rule, divided proportionately among the various abutting owners, the
       individual making the expenditure is justified in expecting that superior
       privileges will inure to him in return for his investment. In contrast, the
       abutting owners to a natural water body probably invest proportionally equal
       amounts for the increased value of the water front property.

Anderson v. Bell, 433 So.2d 1202, 1205 (Fla. 1983). The monies expended by the Incline

Village lot owners on the maintenance of Main Lake provide a good example of such

expenditures by original abutting owners.

       Missouri, like some other states, does permit landowners whose properties abut

artificial bodies of water to gain riparian rights when the landowner obtains an easement

that permits use of the water. Various types of easements have been recognized in prior

Missouri cases as sufficient to give the abutting owner such rights. For example, Allee v.

Kirk, 602 S.W.2d 922 (Mo. App. 1980), recognized an easement by estoppel to build a dock

on a lake, and Dardenne Realty Co. v. Abeken, 106 S.W.2d 966 (Mo. App. 1937), and

Ranney v. St. Louis & San Francisco Railroad Co., 119 S.W. 484 (Mo. App. 1909),

recognized easements by prescription.




                                                  7
       The Edlers recognize these longstanding principles of law and admit riparian rights

would not typically arise from their owning land abutting Main Lake, as it is an artificial

lake. They also recognize they do not have an easement in Main Lake and so the easement

exception does not assist them. They contend, nonetheless, they have acquired riparian

rights in Main Lake because it is a permanent addition to the land. Citing Greisinger v.

Klinhardt, 9 S.W.2d 978 (Mo. 1928), they assert riparian rights come with permanence.

The Edlers’ position is incorrect for two reasons.

       First, were this Court to recognize an exception to the common law for permanent,

artificial bodies of water, it would have to do so here for the first time, for Greisinger does

not hold that an artificial lake that has become permanent should be treated as if it were a

natural lake for the purpose of determining whether its abutting landowners have riparian

rights. Rather, Greisinger held both the plaintiff and defendants had acquired riparian

rights through a theory of implied reciprocal easements. Id. at 983.

       In Greisinger, the Arcadia Country Club dammed a creek on its land, creating an

artificial lake named Lake Killarney. Id. at 979. The club later defaulted and the property

was divided into two lots, each abutting half of the lake. Id. The plaintiff and defendants

each purchased one of the lots and used its portion of Lake Killarney to operate separate

recreational resorts, which included boating, swimming, and fishing on the lake. Id.

Eventually, the defendants, who owned the deeper portion of the lake around the dam,

stretched a wire across the lake on what they believed to be their property line and began

letting water out of the dam, leaving plaintiff’s portion shallow and unusable. Id. at 980.



                                                  8
Greisinger held both parties had riparian rights to Lake Killarney via implied reciprocal

easements because the single plot of land was later divided into two:

              Where the owner of land has, by any artificial arrangement, effected
       an advantage for one portion, to the burdening of the other, upon a severance
       of the ownership the holders of the two portions take them respectively
       charged with the servitude and entitled to the benefit openly and visibly
       attached at the time of the conveyance of the portion first granted.

       That principle applies to ways, lateral support, and riparian rights.

Id. (internal citation and quotation omitted). This Court further noted the non-dominant

property was “practically worthless if the lake is empty, or if it is materially lowered from

its original level. All the circumstances tend to show that the lake was intended to be

permanent, and was so understood by plaintiff and defendants when they acquired their

several properties.” Id. at 981.

       The Edlers take Greisinger’s reference to the “permanent” character of the lake to

mean Greisinger established a “permanent becomes natural” exception in Missouri, by

which an artificial lake, if permanent, may be legally treated as a natural body of water for

determining riparian rights. But permanence was simply a factor in Greisinger’s analysis

of whether an implied reciprocal easement in the lake was created due to the original

owner’s undivided use of the lake before severance and the parties’ expectations the lake

would always exist for their use at their time of purchase. As Greisinger put it, “The

implication of a reservation arises from the necessity of the easement to the reasonable use

and enjoyment of the land reserved … that is to say, when there could be no other

reasonable mode of enjoying the premises retained without the easement.” Id. (internal

quotation omitted). This Court did not recognize a “permanent becomes natural” exception

                                                 9
to the general rule that artificial bodies of water do not give abutting owners riparian

rights. 3

        Second, even the authorities the Edlers claim support a “permanent becomes

natural” exception would not find the Edlers qualify for the exception. The primary

proponent of such an exception is a 1951 law review article, Alvin E. Evans, Riparian

Rights in Artificial Lakes and Streams, 16 MO. L. REV. 93 (1951). This article was written

long after Greisinger and did not suggest mere permanence of an artificial body of water

should cause it to be treated as natural. Rather, it addressed a common situation in which

landowners whose property abuts an artificial body of water have relied on the water’s use

and permanence for a lengthy period. 4 In such cases, it said, the permanent body of water

should be treated as natural. Id. at 113. But the article concedes there are other solutions

to this problem, including the application of implied easements, for which it cites, among



3
  Similarly, Bradley, the other Missouri case cited by the Edlers, does not assist their
argument. While Bradley said abutting landowners continued to have riparian rights after
they conveyed the lakebed to a public entity, the Edlers fail to note the landowners there
reserved the right to use the lake in their conveyance. 347 S.W.2d at 685.
4
  The article begins by posing the following scenario:
               An owner of land bordering on a stream or lake finds it to his
       advantage to erect a dam and flood the lands above. For present purposes let
       it be assumed that he meets with no resistance and in time acquires by adverse
       user [sic] the right to the flowage over the lands in question. One important
       consequence often is that the upper owners of the lands so overflowed make
       use of the raised level of the water and build summer cottages, around the
       lake so formed, or use it for the creation of summer pleasure resorts, boating
       and other things. Based on what theory may they claim a continuance of this
       situation?
Evans, supra, at 93 (internal citation omitted).


                                                10
other cases, Greisinger. Id. at 98-99. Cases decided since the article was written also

impose other requirements besides permanence. See, e.g., Alderson v. Fatlan, 898 N.E.2d

595, 602 (Ill. 2008) (in addition to permanence, as “a minimum requirement” a court will

require a showing “the party invoking the rule has relied upon use of the artificial body of

water without dispute for a lengthy period of time”); accord United States v. 1,629.6 Acres

of Land, More or Less, in Sussex Cnty., Del., 503 F.2d 764, 768 (3d Cir. 1974). 5

       The Edlers cannot claim they have relied on use of Main Lake for a lengthy period,

as the Edlers have never had use of the lake for dock purposes or paid assessments for its

maintenance in their capacity as owners of a property in Sumac Ridge. In fact, the record

shows the predecessor in title’s deed for Sumac Ridge explicitly excepts Main Lake from

the transfer. Rather, it is the residents of Incline Village who have spent millions of dollars

to maintain Main Lake’s condition as an artificial lake. The Edlers urge Main Lake should

be treated as natural, but it is not a natural lake, and it could not continue its current use

were the trustees to stop dredging silt from the lake or allow the dam to fall into disrepair.

Further, the circuit court found at least one trustee made the Edlers aware of the restrictions

contained in the Incline Village indenture before they installed their dock. Even were




5
  Cf. Ramada Inns, Inc. v. Salt River Valley Water Users’ Ass’n, 523 P.2d 496, 498 (Ariz.
1974) (question is whether the artificial body of water “has developed the characteristics
of a natural watercourse”); Chowchilla Farms v. Martin, 25 P.2d 435, 442 (Cal. 1933);
Law of Water Rights and Resources, § 3:26 Artificial watercourses—Conversion of natural
to artificial watercourse; 78 Am. Jur. 2d Waters § 45 (2013). At least one court has
followed a prescriptive easement theory but that, of course, would require a non-contested
claim of right for the prescriptive period. Falcon v. Boyer, 142 N.W. 427, 429 (Iowa 1913).
                                                 11
Missouri to recognize a “permanent becomes natural” exception – and it does not do so –

the Edlers would not qualify for it.

IV.      THE CIRCUIT COURT ERRED IN AWARDING THE TRUSTEES
         ATTORNEY’S FEES BECAUSE THERE WERE NO SPECIAL
         CIRCUMSTANCES

         In considering a request for attorney’s fees, “Missouri has adopted the American

Rule; that is, absent statutory authorization or contractual agreement, with few exceptions,

each litigant must bear his own attorney’s fee.” David Ranken, Jr. Tech. Inst. v. Boykins,

816 S.W.2d 189, 193 (Mo. banc 1991), overruled on other grounds by Alumax Foils, Inc.

v. City of St. Louis, 939 S.W.2d 907, 911 (Mo. banc 1997). The trustees argue the circuit

court, nonetheless, properly awarded them attorney’s fees because fees are allowed as costs

under section 527.100 6 in declaratory judgment actions when “special circumstances” are

shown. They allege the Edlers intentionally built their dock knowing they had no right to

do so and this constitutes a special circumstance.

         The trustees are correct that section 527.100 permits the recovery of costs in

declaratory judgment actions. While those costs do not automatically include attorney’s

fees, a court has discretion to award such fees as costs if “special circumstances” are shown.

Smith v. City of St. Louis, 395 S.W.3d 20, 26 (Mo. banc 2013).

         Although Missouri courts “narrowly construe” what constitutes a special

circumstance for the purpose of awarding attorney’s fees, “intentional misconduct is a

‘special circumstance’ that may justify an award of attorney’s fees.” Tupper v. City of St.


6
    All statutory references are to RSMo 2000.

                                                 12
Louis, 468 S.W.3d 360, 374 (Mo. banc 2015). For example, Klinkerfuss v. Cronin, 289

S.W.3d 607, 617 (Mo. App. 2009), found special circumstances when a beneficiary brought

litigation to remove a trustee and the court found the litigation was “groundless and
                                                                                      7
unsuccessful” and initiated “with the sole purpose of benefitting the beneficiary.”

       On the other hand, “[a]dvocating inconsistent positions is not a special

circumstance; it is the very nature of litigation.” Smith, 395 S.W.3d at 26. For that reason,

Smith refused to permit an award of attorney’s fees against the city of St. Louis when the

plaintiffs alleged St. Louis failed to comply with statutory requirements for a

redevelopment plan. Id. Similarly, Ranken held fees were not authorized where an

erroneous attempt to assess a tax “was not frivolous, nor was it without substantial legal

grounds. There was no evidence that this was a reckless and punitive assessment of the

license tax.”   816 S.W.2d at 193; see also Windsor, 24 S.W.3d at 156 (no special

circumstances shown when insurer merely filed interpleader to determine its liability).

       The trustees argue the Edlers’ intentional trespass necessitating this suit constitutes

“special circumstances” that warrant an award of attorney’s fees. But, the circuit court did



7
  Klinkerfuss cites Goellner v. Goellner Printing, 226 S.W.3d 176, 179 (Mo. App. 2007)
(defendant intentionally ceased paying 92-year-old woman’s health insurance out of spite),
Volk Construction Co. v. Wilmescherr Drusch Roofing Co., 58 S.W.3d 897, 901 (Mo. App.
2001) (defendants intentionally defrauded creditors), and Temple Stephens Co. v.
Westenhaver, 776 S.W.2d 438, 443 (Mo. App. 1989) (defendant intentionally omitted
neighboring property from rezoning application because owner opposed the zoning
change). Other situations which have been found to constitute “‘special’ or ‘very unusual’
circumstances … include … an action brought by an estate beneficiary who has
successfully brought litigation beneficial to the estate as a whole; and an action where a
litigant has successfully created, increased, or preserved a fund in which non-litigants were
entitled to share.” Windsor Ins. Co. v. Lucas, 24 S.W.3d 151, 156 (Mo. App. 2000).
                                                 13
not find the Edlers engaged in an intentional trespass knowing they had no right to build

the dock, or that the Edlers acted in bad faith or out of spite. Its findings of fact stated only

that the Edlers’ deed did not mention the lake, the Edlers “did not seek permission from

the Incline Village Subdivision Trustees to build their dock[,]” and “[a]t least one of the

Trustees told the Edlers they were not allowed to build a dock on the Lake prior to the

construction of the dock.” Similarly, the circuit court’s conclusions of law merely stated

in support of its award of fees that the Edlers committed a trespass, but not that they were

aware their claim had no merit or was brought in bad faith:

              The special circumstances in this case are the Defendants’ trespassing
       onto Plaintiff’s property and the fact that the Defendants’ built their dock on
       Plaintiffs’ property without seeking permission from the Plaintiff and after
       having been told by Plaintiff that the Defendants did not have the right to
       build on Plaintiff’s property. (See Ellis v. Hehner, 448 S.W.3d 320 (Mo. App.
       ED 2014).

The circuit court nonetheless concluded this case was like Klinkerfuss and merited the

award of attorney’s fees due to special circumstances. This was error.

       The Edlers’ actions are much more comparable to those in Smith and Ranken than

to Klinkerfuss. The Edlers’ defenses were not frivolous or offered out of spite, malice, or

with knowledge they had no basis. While an individual trustee told the Edlers they could

not build the dock, they received no formal written denial of permission from the board of

trustees. Further, the Edlers consulted an attorney and believed (wrongly), based on his

advice, that they had riparian rights in the lake and could build the dock even without

permission. To have done so was risky, and costly, for the Edlers. But, as the circuit court

itself stated:


                                                  14
               The Court concludes that there is little authority in Missouri directly
       on point with regard to the specific facts of this case. The Court further
       concludes that where there is a paucity of law on an issue in the State of
       Missouri, the Court can look to decisions in other state courts, learned
       treatises and other secondary sources….

       While this Court has held Missouri law does not support the existence of riparian

rights or the Edlers’ attorney’s theory of “permanent becomes natural,” every case has at

least one party who does not prevail. There is no showing the Edlers did not think they

were arguing for a good faith application or extension of existing law.               “Special

circumstances” contemplates something more than advocating a position a court finds

wrong. Special circumstances are not shown here.

V.     CONCLUSION

       The law flows like water, down the path of least resistance. The Edlers request this

Court flow uphill in adopting an unnecessary exception when longstanding Missouri

easement law suffices. This Court declines to adopt such an exception and holds the

established common law applies, denying riparian rights to landowners abutting artificial

bodies of water. The circuit court’s order directing the Edlers to remove their dock is

affirmed. But the circuit court erred in finding “special circumstances” supporting the

award of attorney’s fees to the trustees. That portion of the judgment is reversed.



                                                  _____________________________
                                                    LAURA DENVIR STITH, JUDGE
       All concur.




                                                15
