Brehm v. Bacon Twp.

• Decision Date: 29 April 2014
• Docket Number: No. SC 93511.,SC 93511.
• Citation: 426 S.W.3d 1
• Parties: Ronald BREHM, Appellant, v. BACON TOWNSHIP, et al., Respondents.
• Court: Missouri Supreme Court

426 S.W.3d 1

Ronald BREHM, Appellant,

v.BACON TOWNSHIP, et al., Respondents.

No. SC 93511.

Supreme Court of Missouri, En Banc.

March 25, 2014.

Rehearing Denied April 29, 2014.

George D. Nichols, a solo practitioner from Lamar, for Brehm.

J.D. Baker of the Baker Law Firm in Osceola, David A. McAllister, Jefferson City, for The government entities and The Department of Conservation.

LAURA DENVIR STITH, Judge.

The trial court granted summary judgment against Ronald Brehm in this action in which he sought a declaratory judgment that a gravel road running along the eastern edge of his property, parallel to an abandoned railroad track, belonged to him and was not a public road. The trial court found that the road did not belong to him and was a public road pursuant to section 228.190.2 ¹ because it was designated as such and had been allocated county aid road trust funds (CART funds) for at least five years. Mr. Brehm appeals, arguing that section 228.190.2 is unconstitutional and that he raised a question of fact as to his ownership interest in the road, precluding summary judgment.

This Court does not reach the issue on which the trial court granted summary judgment because Mr. Brehm failed to show that he had an ownership interest in the strip of land on which the gravel road runs to which section 228.190.2 could apply. While he asserted in his petition that he owned an interest in the property on which the road runs either by deed or by prescription or through abandonment of the road, the defendants' motion for summary judgment denied that he owned an interest in road and, in support, attached a 2011 judgment quieting title in the Missouri Conservation Commission and stating that he merely had a license to use the road. Mr. Brehm's response admitted that the judgment quieted title in someone other than him, and he did not present any contrary evidence that he owned the 40–foot strip on which the road runs. His affidavit averred only that he owns the land adjoining the road. Because Mr. Brehm failed to show he has a current ownership interest in the strip of land on which the road runs, he failed to show an interest in the lawsuit sufficient to give him standing to bring this action. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

A gravel road known as Road 2710 ² runs along the western side of a portion of the now-abandoned Missouri Kansas Texas (MKT) Railroad track from Schell City in Vernon County to the Schell—Osage conservation area. Mr. Brehm owns the property to the west of the gravel road. The Missouri Department of Conservation, through the conservation commission, owns the property to the east of the railroad bed.

In approximately 1990, Aquila Inc., formerly known as the Missouri Public Service Company, erected a gate at the intersection of Road 2710 and 5th Street in Schell City. Aquila, Mr. Brehm and Union Pacific Railroad each held keys to the gate and used the gate to access the property.³

Schell City removed the gate in 2008. Mr. Brehm then filed the instant action seeking a declaratory judgment that Schell City had no right to remove the gate without his permission because he owns an interest in the land on which the gravel road is located. He further sought to enjoin the defendants named in the suit, Schell City and Bacon Township, from removing any gate or other device restricting access to the road.

Mr. Brehm's petition alleges that the Vernon County deed records describe his property as including the land west of the MKT railway bed “subject to whatever rights were acquired by the State of Missouri, (if any) in ‘a strip of ground 40–feet wide lying west of and adjacent to the ( original ) MKT right-of-way’ ”—that is, the strip on which Road 2710 runs. (Emphasis original to the petition). The petition alleges that this deed gave him either a fee interest in the land west of Road 2710 and a prescriptive right to ingress and egress over Road 2710, or outright ownership of the land on which Road 2710 runs. Alternatively, should the trial court find that Road 2710 was not his by deed, the petition alleges that the road was abandoned after five years without public use, pursuant to the version of section 228.190 in effect in 1990 when the gate first was erected across the road. ⁴

Subsequent to the petition's filing, Vernon County was joined as a defendant, and the Missouri Department of Conservation was granted leave to intervene. ⁵ The Department of Conservation moved for summary judgment on the basis that, whatever its former ownership, Road 2710 indisputably became a public county road by operation of section 228.190.2.⁶ This section provides that a road for which a county receives CART funds for at least five years is “conclusively deemed to be a public county road.” The Department provided affidavit evidence that these statutory requirements were met, and it also attached a 2011 judgment quieting title to the strip of land in the conservation commission. Mr. Brehm responded by challenging the constitutional validity of the statute. The trial court granted summary judgment against Mr. Brehm based solely on the operation of section 228.190.2, without resolving any constitutional issues.

Because this case involves the validity of a state statute, this Court has exclusive appellate jurisdiction pursuant to article V, section 3 of the Missouri Constitution.

II. STANDARD OF REVIEW

The grant of summary judgment is an issue of law that an appellate court determines de novo. City of St. Louis v. State, 382 S.W.3d 905, 910 (Mo. banc 2012), citingITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). An appellate court “review [s] the record in the light most favorable to the party against whom judgment was entered” and gives the non-movant “the benefit of all reasonable inferences from the record.” Id. It may affirm if the record shows that summary judgment was appropriate either on the basis it was granted by the trial court or on an entirely different basis, if supported by the record. See ITT Commercial, 854 S.W.2d at 387–88. Here, Mr. Brehm raises a constitutional challenge to section 228.190.2. This Court also reviews de novo questions about the constitutional validity of a statute, and about a party's standing to raise such constitutional questions. Schweich v. Nixon, 408 S.W.3d 769, 773 (Mo. banc 2013).

III. THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT

On appeal, Mr. Brehm's sole point relied on asserts that section 228.190, as amended in 2006, is unconstitutional because it conclusively presumes that a road is public, regardless of prior ownership or abandonment of the roadway, after a county receives CART funds for the road for five years. The statute provides, in pertinent part:

From and after January 1, 1990, any road in any county that has been identified as a county road for which the county receives allocations of county aid road trust funds from or through the department of transportation for a period of at least five years shall be conclusively deemed to be a public county road without further proof of the status of the road as a public road. No such public road shall be abandoned or vacated except through the actions of the county commission declaring such road vacated after public hearing, or through the process set out in section 228.110.

§ 228.190.2. The summary judgment record shows that Road 2710 met the five-year requirement for it to be “conclusively deemed ... a public road” under section 228.190.2; it had appeared on Vernon County's inventory of CART-funded roads at least since 1992 and had been allocated CART fund payments for approximately 22 years.

On appeal, Mr. Brehm does not dispute these facts. He claims instead that the statute, as applied to him, violates the due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 10 of the Missouri Constitution because it allowed Road 2710 to become a public road, simply through its designation on a map in a private government office and the passage of five years time, without providing him notice and an opportunity to assert his property interest. He says that he also has been deprived of his ownership interest in the road without just compensation, in violation of the Fifth Amendment and article I, section 26 of the Missouri Constitution.⁷

Constitutional considerations relating to due process could be implicated had the sole basis of the Department's claim to the road been that it became public land by virtue of the State privately listing it as a public road for five years without any noticeto Mr. Brehm.⁸ Similarly, if this statute were used to take private property without just compensation, constitutional implications would follow.⁹

This Court need not reach these issues, however, because they are not properly before it. “Generally, only those adversely affected by a statute have standing to challenge the constitutionality of the statute.” State v. Young, 362 S.W.3d 386, 396 (Mo. banc 2012), quotingLester v. Sayles, 850 S.W.2d 858, 873 (Mo. banc 1993). To raise these constitutional issues, therefore, Mr. Brehm must show he has “some legally protectable interest in the litigation so as to be directly and adversely affected by its outcome.” Schweich, 408 S.W.3d at 775,quotingMo. State Med. Ass'n v. State, 256 S.W.3d 85, 87 (Mo. banc 2008). Proof of a legally protectable interest requires a showing of “a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief.” Id., quoting Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 25 (Mo. banc 2003).

Here, Mr. Brehm claims his legally protected interest is his alleged ownership interest in the strip of land on which Road 2710 runs. He points to his petition, which alleges that he has an ownership interest in the strip of land either by deed, by prescription or because...