Bollinger County v. Ladd, 38354

Citation564 S.W.2d 267
Decision Date14 February 1978
Docket NumberNo. 38354,38354
PartiesCOUNTY OF BOLLINGER et al., Plaintiffs-Respondents, v. Martha LADD, Defendant-Appellant, and Henry Acuff and Harold Glasener, Defendants-Respondents. . Louis District, Special Division
CourtCourt of Appeal of Missouri (US)

Buerkle, Buerkle & Lowes, Albert C. Lowes, Jackson, for defendant-appellant.

Kenneth W. Shrum, Marble Hill, Jim Spain, Bloomfield, for plaintiffs-respondents.

CORRIGAN, Special Judge.

This action for declaratory judgment was brought by the County of Bollinger to determine the rights of the parties with respect to two roads located in Bollinger County. The suit, instituted in Bollinger County was transferred to the Circuit Court of Cape Girardeau County, and it is from the judgment of that court that this appeal was taken.

The old road in dispute runs south through the lands of Martha Ladd, Harold Glasener, and Henry Acuff. Prior to 1968, it was a county road, open to the public. In 1968, in preparation for the construction of a new road, the judges of the county court agreed with the Ladds that if they would give a right of way for the new road, they could have as their own property that portion of the old road which crossed their property, once the new road was completed. This agreement was reached in the county court with all three judges present but no writing, other than the surveyor's plat, was ever made. The three judges and Mrs. Ladd testified concerning the agreement, but the trial court indicated that it would not consider this evidence because a county court can speak only through its records and was admitting the evidence in accordance with Supreme Court Rule 73.01, only for the purpose of allowing review by an appellate court.

Because entrance to the old road across Mrs. Ladd's property had been barricaded by or on behalf of Mrs. Ladd in October, 1975, defendant Harold Glasener cross-claimed against Mrs. Ladd, seeking a declaration that the old road is open and public and further seeking an injunction restraining Mrs. Ladd from obstructing the road and ordering her to remove any obstructions she had placed there. Glasener had used the old road frequently before its obstruction and twice clipped the cable in order to continue using it. The new road does not touch Glasener's land, and he cannot get to it without crossing Mr. Acuff's property. The southern end of the old road is still open, but Glasener cannot use this without crossing Acuff's land except by "going on down and double back and coming back up the old road." This is nearly impossible when pulling machinery. Several other residents of the community also testified to the difficulty of taking a vehicle or equipment up the southern part of the road to Glasener's farm.

Since Mrs. Ladd claims the road was abandoned, and it was stipulated that no formal proceedings were instituted to close the road, much of the testimony at trial concerned the use or nonuse of the old road within the past five years.

Eleven witnesses testified they had used the old road on numerous occasions from 1971 through 1974. Two of these witnesses were county employees who bladed the road on at least two occasions between 1968 and 1973.

Defendant Glasener used the old road every weekend and occasionally during the week until it was barricaded. He has also seen others use this road during that time period.

Defendant Ladd saw no one other than Glasener use the old road on weekends since the new one was built and knew of no grading since that time.

After presentation of all evidence, the trial court entered findings of fact and conclusions of law. It determined that members of the public had continued to use the old road after the construction of the new and that public money had been spent on maintenance of the old road since 1968. The court ruled that the old road is a public road and was not abandoned or vacated by nonusage and that Martha Ladd acted unlawfully in obstructing it. She was enjoined from obstructing the road and ordered to remove obstructions she had placed there. From this judgment defendant Martha Ladd appeals.

The first point to be considered is the effect of the oral contract between the county judges and the appellant regarding the status of the old road. The testimony is uncontroverted that the judges had agreed to abandon the old road and return it to appellant in exchange for the right of way for the new road. Even though this agreement was never committed to writing, there appears to be no doubt as to the good intentions of the various parties.

Section 432.070, RSMo.1969, provides that contracts made by counties shall be within the scope of their powers and committed to writing. Abandonment of a road can only be accomplished in accordance with Chapter 228 RSMo.1969.

Appellant contends that the statutory requirements are inapplicable because the oral contract has been fully performed by all parties. However, the thrust of these statutes is to protect the public interest, and that interest cannot be and was not protected by an oral contract to which the public was not a "party". The only manner in which the public can be made a party to a contract is through statutory compliance. State v. Faith, 180 Mo.App. 484, 490-491, 166 S.W. 649, 651 (1914).

Assuming, arguendo, that an oral contract for abandonment is not per se invalid, appellant contends that the county should be forced to abandon the old road on the theory of implied contract or estoppel. Appellant performed her side of the bargain and argues that the county should be barred from gaining a benefit by retaining title to the old road. In support of her position, appellant relies on Sparks v. Jasper County, 213 Mo. 218, 241, 112 S.W. 265, 271 (banc 1908); Bride v. City of Slater, 263 S.W.2d 22, 26-27 (Mo.1953); and County of St. Charles v. Rollings, 537 S.W.2d 806, 807-808 (Mo.App.1976). In all three of these cases, although there is some language to indicate some statutory compliance, the matter involved was totally within the contractual powers of the county court. In the case at bar, however, the county court had no authority to bargain for the abandonment of the road short of statutory compliance. For the county judges to say that the road is abandoned does not make it so. Such a promise is inoperable as outside the scope of their powers as provided in § 432.070, RSMo.1969. In addition thereto, there was no compelling public interest at stake in the cited cases as here where the county court was attempting to divest the public of its vested right to a public road.

The Missouri courts have consistently held that municipalities cannot be held liable either on a theory of implied contract or estoppel "by reason of . . . accepting and using the benefits derived from void contracts . . . ." Likes v. City of Rolla, 184 Mo.App. 296, 304, 167 S.W. 645, 647(3) (1914). Without a written contract, even when the other party has performed, no legal liability is created on a theory of satisfaction, estoppel or implied contract.

Clearly, this contract was void because it exceeded the statutory powers of the county court; because it was not committed to writing; and because the vested public interest must be protected from even innocent abuses of power.

The next issue to be considered is whether the old road was abandoned by a nonuser pursuant to § 228.190 RSMo.1969. Once a road has become established as a public road, and there is no contention to the contrary here, the road becomes vested in and inures to the benefit of the public. The right to use cannot be abandoned unless all the public concur. State ex rel. Carter County v. Lewis, 294 S.W.2d 954, 958(4) (Mo.App.1956); Oetting v. Pollock, 189 Mo.App. 263, 271, 175 S.W. 222, 224 (1915); Connell v. Baker, 458 S.W.2d 573, 577 (Mo.App.1970). And the loss of such right of use may result only from the acts and doings of the parties entitled to the public road or highway. Johnson v. Rasmus, 237 Mo. 586, 592, 141 S.W. 590, 591 (1911), Connell, 458 S.W.2d at 577.

In both Lewis and Connell, even though travel on the disputed road had greatly diminished, the court nevertheless held that decreased travel over the road did not work an abandonment, nor affect its status as a public road so long as it was open for use by the public generally and was being used by those who desire or have occasion to use it. For the character of a road as to whether it is public or private is determined by the extent of the right to use it, and not by the extent to which that right is exercised.

Numerous witnesses testified in the case at bar that they had either used the old road or had observed others use it during the period of time in question. Clearly, there was substantial evidence from which the trial court could have found, and in fact did find, that there had been continuous though intermittent use of the road by the public. Appellant has failed to prove by clear and cogent evidence that the road was abandoned in conformity with Lewis, supra. Hence, we are constrained to find that the old road was not abandoned and title cannot revert to appellant but must remain with the county.

The trial court did not rule on the parties' rights with respect to the new road. Respondent county argues that appellants' actions in giving the land to the county and permitting the public to use the new road amounted to an outright common law dedication of her land to public use. To reach this conclusion the county would ignore any evidence of the agreement between it and appellant, including their intent, and would consider only the action and acquiescence of appellant in permitting the county to take, construct, maintain and use the land as a public road.

Addressing the problem of common law dedication, our courts have clearly stated that a property owner may by his actions so express an intention to dedicate that he is estopped to deny that...

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