Harrison v. State Highways and Transp. Com'n, 14814

• Decision Date: 09 June 1987
• Docket Number: No. 14814,14814
• Citation: 732 S.W.2d 214
• Parties: Glen HARRISON, Jr. and Sophia B. Harrison, Plaintiffs-Appellants, v. STATE HIGHWAYS AND TRANSPORTATION COMMISSION, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 214

732 S.W.2d 214

Glen HARRISON, Jr. and Sophia B. Harrison, Plaintiffs-Appellants, v. STATE HIGHWAYS AND TRANSPORTATION COMMISSION, Defendant-Respondent.

No. 14814.

Missouri Court of Appeals,

Southern District,

Division Two.

June 9, 1987.

C.H. Parsons, Jr., Parsons, Mitchell & Wilson, P.C., Dexter, for plaintiffs-appellants.

Rich Tiemeyer and John W. Koenig, Jr., Sikeston, for defendant-respondent.

FLANIGAN, Judge.

Plaintiffs Glen Harrison, Jr., and Sophia B. Harrison brought this declaratory judgment action against the State Highways and Transportation Commission ("the commission"). The petition sought a determination of the present status of a "temporary borrow pit easement," ["the 1959 easement"], acquired by the commission as a result of a 1959 condemnation action, across land now owned by the plaintiffs in Stoddard County. ¹ The petition alleged that the easement "has heretofore expired and no longer conveys to the commission any rights for digging of road building material."

The petition further alleged: In 1983 the commission filed against plaintiffs a condemnation action affecting the same land which was subject to the 1959 easement; in the 1983 action the commission claims that it is still the owner of the 1959 easement and that "therefore the 1959 easement is not (sic) to be considered in taking into account any damages of the plaintiffs in the [1983 condemnation action]"; in the 1983 condemnation action "no appraiser can reach any proper decision concerning plaintiffs' damages" until it is first determined whether the commission still owns the 1959 easement or whether the easement "has already expired" or "has been terminated."

The answer of the commission pleaded that the plaintiffs were the owners of the described land, subject to various encumbrances, including the 1959 easement in favor of the commission, the easement having been acquired by the commission's statutory predecessor. The answer admitted the pendency of the 1983 condemnation action and claimed that the 1959 easement should be considered when establishing the "before-taking" value of the subject property. The answer prayed that the 1959 easement "be confirmed." ²

Following a nonjury evidentiary hearing, the trial court made findings of fact and entered its judgment declaring that the 1959 easement "remains in full force and effect" and that the commission "now has all of the rights obtained by it upon the original taking of the easement, including the right to remove road building material." Plaintiffs appeal.

Plaintiffs' sole "point relied on" is that the trial court erred in finding that the 1959 easement was still in effect because the 1959 easement "was extinguished by non-use of the easement by the commission, combined with exclusive use of the land by the underlying landowners [plaintiffs and their predecessors in title] adverse to the easement for more than 20 years and the expenditure by the landowners of substantial funds to improve the land during that period."

There is no significant factual dispute. In 1959 the statutory predecessor of the commission filed a condemnation action against the land now owned by plaintiffs. In that proceeding the commission obtained, and paid for, the 1959 easement with respect to 22.33 acres of plaintiffs' land. The easement was described as follows: "a temporary easement in the following 22.33 acres for obtaining road building material, all right of [the commission] in said tract to forever cease upon the completion of the construction of the future south lane (eastbound lane ) and the completion of the north lane (westbound lane ) [of U.S. Route 60, Stoddard County ], to-wit: [metes and bounds description of the 22.33 acres]." (Emphasis added.)

A witness for the commission testified that "the future south lane (eastbound lane) has never been constructed but construction of it is still planned."

In 1959 the land subject to the easement was owned by plaintiffs' predecessor in title. Plaintiffs obtained title to the land in 1973, although plaintiff Glen Harrison, Jr. had farmed it with a partner since 1964.

Plaintiffs farmed the 22.33 acres described in the 1959 easement and spent "$250 to $350 per acre on the property in rough grading to fill in holes and sloughs and to land plane and smooth it." Plaintiffs also spent about $50 per acre per year for fertilizers and chemicals on that acreage. The commission has never removed any road building material from the 22.33 acres.

At the time of the 1959 condemnation action the commission planned to develop Highway 60 as an expressway with some direct access to the highway. In the 1983 condemnation action the commission's plans were changed to "a freeway design with access only at interchanges, with outer roads on both sides and an interchange and overpass at Route AD."

In the 1983 condemnation action the commission sought to condemn, as an additional temporary borrow pit easement, a strip of land west of, and adjacent to, the 1959 easement and also to condemn, for right-of-way purposes, 1.19 acres located in the 22.33 acres described in the 1959 easement. According to the commission's brief, to which plaintiffs make no reply, it is the valuation of the 1.19 acres which gave rise to the issue of the present status of the 1959 easement. The commission argues that "the newly acquired 1.19 acres of right-of-way was subject to the [1959 easement], [and] it should not be valued the same as unencumbered farm land."

The trial court found that all of the conveyances of the land since the taking of the 1959 easement were made subject to the easement, that the 1959 easement was at all times a matter of public record, and that when plaintiff Glen Harrison, Jr. became the owner of the property, he knew of the existence of the 1959 easement. The trial court also found that the commission "has never intended to abandon the easement, that it has not committed any acts constituting abandonment, that it has not relinquished possession of the property with intent to abandon the easement, and that it has not abandoned the easement."

Plaintiffs advance three grounds in support of their assertion that the 1959 easement was extinguished prior to the commencement of the 1983 condemnation action. The grounds are: (a) nonuse of the easement by the commission; (b) exclusive use of the land, by plaintiffs and their predecessors in title, adverse to the easement and for more than 20 years; (c) expenditure, by plaintiffs and their predecessors in title, of substantial funds to improve the land for over 20 years.

"[M]ere nonuser, for a period however extended or continued, of an easement created by a grant will not amount to an abandonment." Franck Bros, Inc. v. Rose, 301 S.W.2d 806, 812 (Mo.1957). To the same effect see Dalton v. Johnson, 320 S.W.2d 569, 574 (Mo.1959). A title acquired by eminent domain is, in legal effect, one acquired by grant. Bethany Presbyterian Church v. City of Seattle, 154 Wash. 529, 282 P. 922, 924 (1929). See also Comm'r of Int. Rev. v. Plestcheeff, 100 F.2d 62, 64 (9th Cir.1938); Petition of City of Seattle, 43 Wash.2d 445, 261 P.2d 416, 417 (1953).

One of the cases relied upon by plaintiffs in support of ground (a) is Barkshire v. Drainage Dist. No. 1 Reformed, 136 S.W.2d 701, 707 (Mo.App.1940), where this court said: "[T]he non user of an easement for a period prescribed by the statute of limitations, constitutes an abandonment of the right." The foregoing is a misstatement of the law as pointed out in Franck Bros, Inc., supra, where the supreme court said, at p. 812:

"However, we note that in the case of Barkshire v. Drainage Dist. No. 1 Reformed, Mo.App., 136 S.W.2d 701, the Springfield Court of Appeals construed our case of Hatton v. Kansas City, C. & S.R. Co., 253 Mo. 660, 162 S.W. 227, as holding that nonuser of an easement for the period prescribed by the statute of limitations constitutes an abandonment. We do not agree with that construction. The statement (which was actually dictum) referred to was, 253 Mo. 675, 162 S.W. 232: 'Mere nonuser of an easement resting in grant * * * for a period short of that prescribed by the statute of limitations, will not extinguish the easement, unless accompanied by an intention on the part of the owner of the dominant estate to abandon it.' This is not the equivalent of saying that mere nonuser for the period prescribed by the statute will extinguish the easement. We note that the court, in support of the foregoing statement, cited the Roanoke Inv. Co. case, supra, which clearly states that nonuser for the statutory period will not extinguish the easement unless accompanied by the adverse possession of the servient owner or other acts by the dominant owner indicating a clear intention to abandon the easement. This was the meaning we think the court intended to convey in the quoted statement from the Hatton opinion."

"As a general rule, an easement acquired by grant or reservation cannot be lost by mere nonuser for any length of time, no matter how great. The nonuser must be accompanied by an express or implied intention to abandon." 25 Am.Jur. Easements and Licenses, § 105, p. 509. Similarly, with respect to rights taken by eminent domain "[M]ere nonuser will not work an abandonment unless continued for a sufficient length of time to indicate an actual intention to abandon." 26 Am.Jur.2d Eminent Domain, § 146, p. 809. See also 30 C.J.S. Eminent Domain, § 458, pp. 660-661.

The nature of the 1959 easement was such, especially in view of the unpredictability of highway appropriations, that the commencement and duration of its exercise were indefinite. Such factors have been recognized in cases involving borrow pit easements.

In Mo. High. & Transp. v. Cir. Ct. Franklin Cty., 656 S.W.2d 829 (Mo.App.1983), the court held that in a condemnation action to obtain a temporary construction easement the petition of the highway commission did not have to specify the length and...