Bradley v. Jackson County

• Decision Date: 12 June 1961
• Docket Number: No. 48232,No. 2,48232,2
• Citation: 347 S.W.2d 683
• Parties: Anthony M. BRADLEY et al., Plaintiffs-Respondents, George L. Hilfinger et al., Intervenors-Respondents. v. COUNTY OF JACKSON, Appellant
• Court: Missouri Supreme Court

Page 683

347 S.W.2d 683

Anthony M. BRADLEY et al., Plaintiffs-Respondents George L. Hilfinger et al., Intervenors-Respondents. v. COUNTY OF JACKSON, Appellant.

No. 48232.

Supreme Court of Missouri, Division No. 2.

June 12, 1961.

Motion for Rehearing or for Transfer to Court en Banc Denied

July 10, 1961.

James L. Williams, County Counselor, Gilbert R. Titus, Asst. County Counselor, Independence, for appellant.

Cornelius Costello, County Counselor, James C. Morris, Asst. County Counselor, Kansas City, for appellant.

Irving Achtenberg, Kansas City, for respondents; Achtenberg, Sandler & Balkin, Kansas City, of counsel.

EAGER, Judge.

The plaintiffs, as owners of lands surrounding Prairie Lee Lake in Jackson County, filed this declaratory judgment action seeking a construction of various conveyances and a declaration that they possess riparian rights in the lake, including the right to swim, boat and fish therein, to take water for domestic purpose, and to build private boat docks at the shore line. Chronologically, the history of the matter began in 1936 and 1937 when six property owners, Todd M. George, Solomon Wall, Edward Mathias, Emory Ritter and their respective wives, and Betty Winburn, a single woman, executed 'Right of Way Conveyances' substantially similar in form to Jackson County; therein they did 'remise, release and forever quit claim' certain lands for the creation of the lake, but in the bodies of the conveyances the grants were described as easements. The instruments were in some respects peculiar, but we regard them essentially as easements. Among other provisions were the following, which are typical: 'That said easement covers only an easement for the building of the dam and taking care of the water, and the 150 feet for the building of the road and parking, and that there shall be no privileges for the building of places of amusement, stores, hot dog stands or the like, on said 150' and that only the owners of abutting property shall have the sole right to build boat docks. * * * This easement is granted, provided the project of building a lake has been completed within two years from date of this agreement. * * * To Have And To Hold the same, with all the rights, immunities, privileges and appurtenances thereto belonging unto the said party of the second part for the purposes of construction, and maintenance of a lake or reservoir on the said land herein conveyed, Forever.' All of the grants except that of Callaway specifically required the completion of the roadway or the completion of the lake 'project' within two years, upon penalty of a reverter.

Prior to the making of these grants, sundry negotiations took place between the property owners, representatives of the County (including County Judge Hostetter), an engineer for the Federal Government and others. The lake was built as a WPA project with federal money; delays ensued, and it was not completed until about 1943. It is clear from all the circumstances that the lake was intended to be permanent. The named grantors received no monetary consideration whatever. The County purchased an additional 20 acres upon which the dam was constructed, and some of the original grantors ¹ assisted in that with contributions and otherwise. Mr. George platted all or part of his remaining land into approximately 80 lots, most of which faced the shore line, with the 150-foot strip intervening. The original plat was filed and approved by the County Court in or about August 1937. A reproduction of that plat is in evidence. Ritter and Callaway later platted all or parts of their remaining land; those plats are not in evidence. Ritter's plat was filed in July 1944. Twenty of the plaintiffs (individually or as husband and wife) purportedly own lots in George's Addition, one in Callaway Heights, and seven in Ritter's Subdivision. Several other parties were permitted to intervene as lot owners in Ritter's Subdivision or Callaway Heights.

When the lake project was started, it was soon found impracticable to build a road around the lake because of the terrain; it seems to be conceded by all the the 150-foot strip bordering the lake and intended as a road and parkway (50 feet in one instance) reverted to the original grantors. This was adjudicated by quiet title decrees for George (1946), Wall (1954), and Mathias (1948). The County Court entered an order for Callaway (1954) relinquishing and vacating all claims of the County above the contour line of the lake adjoining his property, which, of course, included the 50-foot strip granted by him for a road and parkway. Even prior to those recognitions of a revertes there seems to have been some apprehension that the original grants might have become invalid in toto for failure to fully perform; consequently, in 1944 the County procured from George, Ritter, Mathias and Gabriel (apparently the grantee of Callaway) so-called 'Indentures' releasing and quitclaiming the submerged land included in the prior conveyances. Defendant contends that these conveyed the fee; plaintiffs assert that they were merely additional easements. These instruments contained a provision that the grantors 'reserve all rights to erect boat docks for noncommercial purposes * * *'; and they also provided that the conveyances were made for the purpose of the construction, maintenance and operation of a lake or reservoir on the lands conveyed, forever, and that in the event the use of the lands as a lake or reservoir was ever abandoned or terminated, title should revert to the grantors, their heirs or assigns. Wall and Winburn did not execute such instruments.

Mr. George, one of the grantors, testified; much of his testimony was received over objection. That will be referred to later. He stated: that no consideration was paid for the deeds; that some of these grantors contributed to help buy the 20-acre dam site; that the WPA built the lake; that the instruments were drawn by an engineer in the County Surveyor's Office; that 'we' built boat docks; that he platted his remaining property and sold 67 lots facing the lake, and that he put out a 'brochure' (received in evidence) describing his addition and its benefits and restrictions; that his grantees of lots built docks and used the lake, when completed for boating and swimming; that docks were also built and the lake was used by purchasers of lots in Ritter's Subdivision and Callaway Heights; that a good many houses were built, all facing the lake; that the County did not interfere with the use of the lake until 'recent years' (apparently 1951), and that the values of all the lots would be considerably less if the lake privileges were not available to them. He further testified that he had to build a road back of the lots, and that he sold portions of the reverted perimeter strip to some lot owners; that there was originally a valley where the lake was built, with water from a number of springs forming two streams; that there was water 'usually * * * the year round,' and a swimming hole about 10 feet deep. Two lot owners testified that they had built homes, docks and walkways, had drawn water for domestic purposes, and had boated, fished and swum in the lake without interference until 1951; that at that time the County stopped them from swimming; that they had relied on these advantages in purchasing their lots; that the County had permitted or caused the lake level to drop so materially (and sometimes precipitately) as to affect their property and enjoyment seriously; also, that the water rights definitely affect the values of these properties. The County rents boats to the public from boat docks on its 20-acre tract. It contends that the use of the lake by so many lot owners seriously interferes with its use by the public.

The trial court found and adjudged that defendant owned the land under the lake in fee simple, that 'plaintiffs are the owners of tracts of land which abut and adjoin the shore line of the lake * * * that by reason of such ownership, plaintiffs and each of them are riparian owners and as such are entitled to certain rights as riparian owners * * * including the right to swim, boat and fish in and on the waters of said lake, to take water therefrom for domestic use only, to skate and ride on ice formed thereon, to erect private boat docks and similar structures on said tracts of land at or near said shore line * * * but in no event * * * beyond and below said shore line * * * that defendant is not entitled to prohibit or interfere with the reasonable exercise of said riparian rights by plaintiffs and is not entitled to levy or collect license taxes, fees or charges for the exercise by plaintiffs of such rights.'

Respondents have filed a motion to dismiss the appeal for the inadequacy of appellant's statement and also of its points and authorities, under Rule 83.05, V.A.M.R. Appellant was permitted to amend its brief after the motion was filed; it is still subject to criticism, but we overrule the motion to dismiss, partially in view of the public interest involved.

We have in mind the injunctions of Section 512.160 RSMo 1959, V.A.M.S., that 'Unless justice requires otherwise the court shall dispose finally of the case on appeal * * *,' and likewise of Sec. 510.310, applicable to nonjury cases, that 'The judgment shall not be set aside unless clearly erroneous, * * *.' However, we find ourselves unable on this record to determine the rights of all the parties, for reasons which we shall point out. The cause will be remanded, but we shall rule such matters as are sufficiently presented and which would aid in a final disposition.

Both parties consider the privileges involved here as 'riparian' rights. It might be doubted whether they are strictly such in the technical sense (Indian Refining Co. v. Ambraw River Drainage Dist., District Court, D.C.E.D., 1 F.Supp. 937), but any difference would rest largely in terminology, so we pass that question. The original ...