Hedges v. County Court for Ray County

• Decision Date: 30 April 1979
• Docket Number: No. KCD,KCD
• Citation: 581 S.W.2d 73
• Parties: Richard C. and Philancy C. HEDGES et al., Appellants, v. COUNTY COURT FOR RAY COUNTY, Missouri, et al., Respondents. 29516.
• Court: Missouri Court of Appeals

Page 73

581 S.W.2d 73

Richard C. and Philancy C. HEDGES et al., Appellants, v. COUNTY COURT FOR RAY COUNTY, Missouri, et al., Respondents.

No. KCD 29516.

Missouri Court of Appeals, Western District.

April 30, 1979.

Max VonErdmannsdorff, VonErdmannsdorff, Zimmerman, Gunn & Trimble, Kansas City, for appellants.

Harold L. Fridkin and Richard D. Rhyne, of Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for respondent Crystal Lakes.

David L. Busch, Richmond, for respondent County Court for Ray County.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

SWOFFORD, Chief Judge.

The appellants (landowners) brought this action against the County Court of Ray County, Missouri and its members (Court); the Crystal Lakes Development Corporation and the Trustees of Crystal Lakes Subdivision (Crystal), wherein they sought a writ of mandamus, injunction and damages. The relief sought by mandamus was a direction to the Court to set aside its order closing and vacating a county road, as described in metes and bounds in the petition. The case went on change of venue from Ray County to Platte County, Missouri.

After the pleadings were filed and the issues made, Crystal filed its Motion to Dismiss the Petition for Mandamus, upon the grounds that mandamus would not lie under the facts as shown by the record inasmuch as the plaintiffs had an adequate remedy at law, the acts of the Court in vacating the road were judicial or quasi-judicial and were a determination of facts and law by an administrative body, and the order of the Court was regular on its face and not subject to collateral attack in a proceeding in mandamus. The other defendants later joined in this motion. The Court below sustained the motion to dismiss, without stating any reasons, and this appeal followed.

The landowners raise two points on appeal, namely, (1) they did not have any remedy by appeal since the Court lacked jurisdiction to make the order vacating the road because it did not follow the procedures under § 228.110 RSMo 1969 and thus, the order was subject to collateral attack by mandamus; and (2) the landowners had no notice of the proceedings in the Court nor of its order vacating the road and to limit their remedy to appeal from such order would deprive them of their constitutional right to due process.

This Court is mindful that in reviewing the propriety of the trial court's action in sustaining the motion to dismiss all properly pleaded facts in the petition and all favorable inferences of fact which may be drawn therefrom must be taken as true. Dolan v. Ramacciotti, 462 S.W.2d 812, 814(1) (Mo. banc 1970); Collins v. Vernon, 512 S.W.2d 470, 475(5) (Mo.App.1974). Further, all pleadings shall be construed to do substantial justice. Rule 55.24. Finally, the propriety of the dismissal depends upon whether substantial legal principles are invoked on which appellant is entitled to relief. Brennaman v. Andes & Roberts Brothers Construction Company, 506 S.W.2d 462, 463(1) (Mo.App.1973).

When so viewed, the landowners' petition discloses that there are seventeen plaintiffs who allege that they are owners of property adjacent to and abutting the road in question; that this road has been in continuous public use since before 1917; that it has been graded and maintained by the County for the benefit of the public as well as the abutting and adjoining property owners; that it has always been connected with other public roadways in the township and county; that it afforded the plaintiffs-landowners the only practical means of ingress and egress to and from their properties; and that these conditions and use existed at the time the plaintiffs acquired their properties and for many years prior thereto.

Further, the record discloses that before the case was dismissed, in answer to interrogatories propounded to them by Crystal, the landowners, under oath, made the foregoing allegations in their petition specific and definite by setting forth in considerable detail the facts and proof in support thereof.

It should be here noted that it is conceded that Crystal also owns land holdings abutting the road in question, which land was a part of other holdings and Crystal was engaged in the development thereof as a lake and recreational facility, for homes and other uses.

The history of these proceedings is long and tortuous and in some respects incomprehensible. On December 30, 1968, the Court had before it the petition of Crystal for an order "closing and vacating" the road. The only part of the Court's record before this Court is its order of December 30, 1968 and it does not appear when Crystal's petition was filed, in response to which the order vacating the road issued. The order does recite that after "being duly advised" the Court finds "that the said road has been and is in such a state of repair that it could not be used by the public; that it has been abandoned for all intents and purposes for a period in excess of ten years; and that to properly repair and maintain the said road for the traveling public would require a prohibitive amount of money to be expanded thereon and place an unreasonable burden upon the county finances". The Court further found "that the vacation of said road will not impose a hardship upon the traveling public". It is also worthwhile to note that the order is referred to in the caption as "in the Matter of Vacation of County Road". (Emphasis added)

The factual or evidentiary basis for these findings does not appear. It is conceded that the landowners were not notified of this petition to vacate or of the hearing before the Court; did not appear nor were they represented at the hearing; and, were not served with the ensuing order nor advised thereof.

It is difficult to determine exactly what happened next in the chain of events leading to the filing of the case. In appellants' petition they allege that " * * * a short time after December, 1968, defendant, 'corporation' * * * blocked off and closed said roadway by erecting thereon and across the same * * * gates and fences which have been manned by armed guards * * * which said gate * * * blocks said road and * * * blocks off plaintiffs sole practical means of ingress onto and egress from their said property * * * ".

Reasonable inferences can be drawn from this record that Crystal as a part of its petition to vacate or in support thereof undertook to build or rebuild the road lying within its property. Following the order of December 30, 1968, vacating the road, by letter dated September 25, 1969 addressed to the Court, as shown by the landowners, Plaintiffs' Exhibit No. 2, made as an offer of proof, that Crystal restated its position that "all residents of Ray County and their quests shall be permitted to use the roads constructed by the company * * * ".

Also in June or July, 1973, the landowners requested the Court to vacate its order of December 30, 1968 and were refused. This appears in landowners' answer to Crystal's Interrogatory No. 6. This action was commenced on October 26, 1973.

On March 31, 1975, pursuant to a stipulation of the parties, the trial court issued a temporary injunction prohibiting Crystal or other defendants from closing or obstructing the roadway involved and permitting the use thereof by the plaintiffs and others during the pendency of the litigation. When the judgment dismissing this action by the trial court was entered on May 2, 1977, the temporary order of March 31, 1975 permitting the use of the roadway in question, was extended and continued as to the plaintiffs-landowners (but not to their successors in interest) during the time of this appeal.

Therefore, the clear facts and the inferences to be drawn therefrom are, that except for a short time after the Court's judgment vacating the road when it was obstructed, the landowners were permitted to use the same as in the past and such use continues to the present. It should be noted and emphasized, however, that such use after December 30, 1968 was at the sufferance of Crystal and its use was not as a matter of right as members of the public using a public road, and that such use can be terminated at the will or caprice of Crystal unless the road is restored to its prior public status. So the problem is real and not moot so far as the plaintiffs-landowners are concerned and they properly raise the challenge as to the legality of the Court's judgment of December 30, 1968, vacating this road.

In viewing this case, it should be stated at the outset that there is no dispute, but is apparently conceded by all parties, that the roadway here involved before the controversy arose, was, in fact, a public road in Ray County, Missouri. Appellants maintain that there is but one statutory method for the lawful vacation of public roads, that being the method provided by what is now § 228.110 RSMo 1969. Sheppard v. May, 83 Mo.App. 272, 275(2) (1900). The method there prescribed requires five distinct procedural steps that must be taken before an order vacating a public road can be entered, namely, (1) twelve freeholders of the township must petition that it be vacated; (2) such petition shall be publicly read on the first day of the term at which it is to be presented and the matter continued to the next term; (3) notice thereof shall be posted in three public places for twenty days; (4) all persons whose lands are crossed or touched by the road shall be served with a copy of the petition to vacate; and (5) the petition shall again be publicly read on the first day of the term at which the matter is to be heard. ¹ Further, that statute contemplates an opportunity for other freeholders to protest and be accorded a hearing in a remonstrance to the proposed vacation order.

A further statutory provision held applicable to a proceeding of this kind to vacate a road is Section 228.070 RSMo 1969. ² See Morris v. Karr, 342 Mo. 179, 114 S.W.2d 962, 965(4) (1938).

No contention is made...