Anderton v. Gage

• Decision Date: 23 March 1987
• Docket Number: No. 14532,14532
• Citation: 726 S.W.2d 859
• Parties: Edmund J. ANDERTON and Pauline Anderton, Plaintiffs-Appellants, v. Charles L. GAGE, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 859

726 S.W.2d 859

Edmund J. ANDERTON and Pauline Anderton, Plaintiffs-Appellants, v. Charles L. GAGE, et al., Defendants-Respondents.

No. 14532.

Missouri Court of Appeals,

Southern District,

Division Two.

March 23, 1987.

Mary A. Greer, Laurie, for plaintiffs-appellants.

Gary W. Drover, Camdenton, for defendants-respondents.

PER CURIAM.

By their first amended petition, the plaintiffs alleged they were the owners of certain described real property in Duggan's Park Subdivision in Camden County. The description in the petition was in terms of lots and blocks and Tracts 1, 2 and 3 and the park area of that subdivision. The description further stated, "according to the plat thereof."

The petition also alleged the defendants, owners of lots in the subdivision, claimed some interest in land designated on the plat of the subdivision as "Easement" which lies north of Tracts 1 and 2. The petition prayed that title "in and to the above described real estate" be quieted in the plaintiffs.

The judgment of the trial court declared the plaintiffs to be the owners of the property described in terms of lots, blocks, tracts and the park area. It further declared that the real property so described did not include the "Easement" tracts. It concluded that the owners of lots within the subdivision share an easement over each area designated "Easement" on the plat, "[s]aid easement rights being for those reasonable uses and purposes which the areas so designated as 'easement' will accommodate according to the ways and uses to which said areas may be naturally and reasonably devoted to include, without limitation, access to and ingress and egress to and from the waters of the Lake of the Ozarks." The plaintiffs appeal.

The following is an outline of the basic facts presented by the sketchy evidence. The plat of Duggan's Park Subdivision was recorded December 14, 1951. Duggan's Park Subdivision is on the south side of Rize Branch Arm of the Lake of the Ozarks. A portion of the platted area has been platted as Blocks 1, 2 and 3, each of which has been subdivided into lots. The three blocks contain a total of 35 lots. Blocks 1, 2 and 3 are not contiguous with the lake.

Portions of the platted area are designated Tracts 1, 2 and 3. These tracts are not divided into blocks or lots. The area of each of those tracts is approximately the same size as each of Blocks 1, 2 and 3. Tract 1 lies east of Blocks 1, 2 and 3. Tract 2 lies generally northeast of those blocks. Tract 3 adjoins those blocks on the southwest. An area designated "Park" adjoins the blocks on the northwest. Tract 2 is encircled with a road. There is a relatively long, narrow area lying between the north side of the road along the northwest side of Tract 2 and the lake. There is a similar area lying between the north side of Tract 1 and the lake. Each of these areas is designated "Easement." There is also an area contiguous with the lake that lies between Tract 1 and Tract 2 and north of Block 1 that is also designated "Easement." The plat contained the following legend. "The roads as shown are 30 feet wide and are hereby dedicated to the use of the owners of lots in this subdivision, as such and for the instillation [sic] of utilities."

Without stating which lots, the petition alleged 14 individuals owned lots in the subdivision. There was no evidence concerning the chain of title or the sale of specific lots and tracts. No abstract of title was offered in evidence. There was testimony that certain lots had been purchased in 1958 and 1959. There was evidence from which it could be reasonably inferred the subdivision and surrounding area developed extensively after 1950.

To establish their title, the plaintiffs testified they bought their property from John C. Pohlmann and his sisters. To establish this title the plaintiffs placed in evidence Exhibit 3, a deed, dated August 20, 1976. The grantors were Helen K. McCandless, John J. Gallagher and Loretta J. (Abbey) Gallagher, his wife. The grantees were the plaintiffs. The described property was the same as that described in the petition in terms of lots, blocks, tracts and the park area. Following the description the deed stated: "Subject to all easements and restrictions of record."

John Pohlmann testified. He identified Exhibit 1 as "a deed from the property that was conveyed to my sister by John B. Anderton and his wife." Exhibit 1 was not offered in evidence and is not before this court. Pohlmann testified that he provided the money to purchase the property and was in fact the owner. He further testified that with the exception of one or two lots that had been sold, the property he sold to the plaintiffs was the same property that he had purchased. He said that he owned the property from about 1960 to 1976.

There was evidence that from December 14, 1951, the date of the plat, to the date of trial, the areas designated "Easement" had been used continuously by lot owners in Duggan's Park Subdivision and other persons owning property in another nearby subdivision. That use included the following: The installation and maintenance of boat docks, launching, docking and storing boats, fishing, swimming, camping and picnicking, and ingress and egress to the docks and lake. A concrete slab was constructed in the area to facilitate access to the docks and lake. When asked who constructed the slab, Pohlmann said, "Well, everybody that lived down there took a hand in it."

In their brief the plaintiffs assume the trial court determined the lot owners acquired the easements in question by prescription. The defendants contend the judgment could have been based upon such acquisition by dedication, estoppel or by prescription.

There are numerous methods or circumstances by which easements may be created. 2 Thompson on Real Property, Chapter 13, Creation of Easements (1980 repl. ed.). In general, all of these methods or circumstances are applicable to the creation of easements in an area that has been platted. However, most frequently, easements are created by a plat or by reference to a plat by dedication or by grant, express or implied. Easements in platted areas are also often acquired by prescription. Cunningham, Stoebuck and Whitman, The Law of Property, Hornbook Series (Lawyers ed. 1984).

The term dedication is properly applied to the creation of easements in favor of the general public. A dedication may be a statutory dedication or a common law dedication. A statutory dedication is accomplished by the execution of an appropriate conveyance or words of conveyance on a plat and the acceptance of the dedication by an appropriate public body. A common law dedication may be accomplished when the plat does not comply with the statutory requirements or is not accepted by a public body, but the intent of the owner to vest rights of use in the general public appears, and there is an acceptance by public use. Weakley v. State Highway Commission, 364 S.W.2d 608 (Mo.1963); City of Alexandria v. Kara Baptist Academy, Inc., 680 S.W.2d 416 (Mo.App.1984). For these reasons, there cannot be a dedication, in the strict sense of the word, in favor of an individual or a limited number of individuals. Village of Climax Springs v. Camp, 681 S.W.2d 529 (Mo.App.1984); Marks v. Bettendorf's, Inc., 337 S.W.2d 585 (Mo.App.1960); Moore v. Queener, 62 Tenn.App. 490, 464 S.W.2d 296 (1970).

Nevertheless, a fundamental principle applicable to a dedication is applicable to the grant of an easement by means of a plat to an individual or a limited number of individuals. State ex rel. State Highway Commission v. Public Water Supply Dist. No. 2 of Jefferson Co., 559 S.W.2d 538 (Mo.App.1977). That principle is that the intent of the owner to create an easement must appear from the plat. The modified term "private dedication" has been applied to such creation of private easements by grant by implication. Rose v. Fisher, 130 W.Va. 53, 42 S.E.2d 249 (1947). Factual situations may result in the dedication of a use to the public and the creation by grant of a private easement in the same property. Moore v. Queener, supra; Huning v. Potts, 90 N.M. 407, 564 P.2d 612 (1977). For these reasons, decisions using the terminology of dedication may be applicable to the creation of easements or rights of use, such as those in question, in individuals or a limited number of individuals. The coexistence and differentiation between a dedication of an easement to the public and the grant of an easement in favor of a group of individuals, such as lot owners, is discussed in Annot., Conveyance With Reference to Plat, 7 A.L.R.2d 608 (1949).

The determination of whether or not private easements are established by reference to a plat of a subdivision involves two questions. However, those questions are often intermingled. The first question is, does the plat establish a tract or an area to be subject to an easement for a given purpose? Or stated another way, does the intent of the owner to create an easement appear from the plat? Second, does reference to the plat establish a grant of that easement to the public or to an individual or a class of individuals?

Both questions may be answered by an express declaration on a plat. For example, in Denning v. Manley, 610 S.W.2d 51 (Mo.App.1980), a tract between a road in a subdivision and the Lake of the Ozarks was designated "Easement." A legend on the plat provided: "All road's [sic] and easements are hereby dedicated to the lot owner's [sic] for the purpose of ingress and egress." Id. at 54. The legend was held to be the basis of a grant to the lot owners an easement in the tract for ingress and egress to the lake. In this case, the legend dedicates the roads to the lot owners but makes no mention of the tracts designated "Easement."

However, it is not essential that a plat expressly designate the purpose of an unmarked or an ambiguously marked area in a subdivision. "In construing plats of this character, we must...