Horrighs v. Elfrank, 14718

• Decision Date: 07 April 1987
• Docket Number: No. 14718,14718
• Citation: 727 S.W.2d 910
• Parties: Earl HORRIGHS, et al., Plaintiffs-Appellants, v. James E. ELFRANK, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 910

727 S.W.2d 910

Earl HORRIGHS, et al., Plaintiffs-Appellants, v. James E. ELFRANK, et al., Defendants-Respondents.

No. 14718.

Missouri Court of Appeals,

Southern District,

Division Two.

April 7, 1987.

Janice P. Noland, Camdenton, for plaintiffs-appellants.

William Icenogle, Icenogle & Icenogle, Camdenton, for defendants-respondents.

MAUS, Judge.

This is an appeal from a judgment determining title to Lot 10 in Block 2 in First Addition to Sunny Slope Subdivision in Camden County. In addition to its number, the lot on the plat bears the word "Park". The judgment determined the defendants Elfrank and Horn, as remote grantees of the developer, owned the lot in fee simple. The plaintiffs are owners of other lots in the addition. They claim a right to use Lot 10 for park purposes and appeal.

The basic facts are not controverted. The plat of First Addition was recorded on July 11, 1959. First Addition is contiguous to the Lake of the Ozarks. Only a portion of the full plat was in evidence and is before this court. That portion shows in full four blocks containing a total of 42 lots. Eleven of those lots are contiguous to the lake. Access to the lots in those four blocks is provided by three corridors between the blocks and one corridor north of Block 1. On the plat, these corridors bear the designation "Private Road". Each of these private roads extends to the lake. As stated, Lot 10 in Block 2 bears the designation "Park".

The acknowledged declaration of the developer on the plat includes the following statement. "All lots in said subdivision shall be sold subject to the restrictions and conditions set forth and contained in an instrument of even date to be recorded herewith in the Camden County Recorder's Office." The instrument referred to was recorded on July 11, 1959. It contained ten numbered paragraphs. Included were various restrictions on use. In addition, paragraphs 6, 7 and 10 read as follows:

6. Road designated as Sunny Slope Drive is hereby dedicated as public road for public use; other roads designated as 'private roads' are for the use of the lot owners and guests only; roads designated as private roads and abutting on the Lake, Lot Owners shall have the right to use for the launching of boats and tie-on facilities--no docks of any type at said location.

7. Those areas designated as 'parks' shall be for the use of all Lot Owners and guests only and for private non-commercial use. Dedicators reserve the right, however, to grant concessions of a commercial nature in those areas designated as 'parks'.

....

10. All of the Lots and parcels of ground in said subdivision are hereby subjected to all the restrictions herein set out and said restrictions shall operate as covenants running with the land into whomsoever hands said lots or any part thsll [sic] come, and shall be enforceable at the suit of any and every owner of any lot in this subdivision.

The owners of six lots testified concerning the development of First Addition and use of Lot 10. One couple bought a lot in late 1959 or 1960. They built the third house in the addition. Another bought two lots in 1963 and used them for their residence. A third couple bought a house and lot in 1974. Another resident testified that he bought a lot in 1965. Testimony also identified six other individuals who owned a total of 16 lots.

The testimony of these witnesses concerning the use of Lot 10 was in general as follows. All lot owners used Lot 10. A boat dock containing ten slips has been anchored and attached to Lot 10 since 1960. The dock was reached by a ramp from the park. The dock was replaced at one time. It was used, managed and maintained by lot owners. That use included not only docking boats, but fishing, swimming and sunbathing. Lot 10 was equipped with playground equipment, picnic tables and a barbecue fireplace. Those items had been donated to the park. The lot was also used for outdoor recreational activities, including neighborhood visitations and picnics. It had been used for wedding anniversaries, weddings and church services. One witness testified that she handled the financial records concerning the community mowing of Lot 10. These uses of Lot 10 were continuous from 1960 until 1984.

The defendants claimed title to Lot 10 by the following chain of title. On November 28, 1978, Sunny Slope Development Co., Inc., by quit claim deed conveyed its interest in numerous lots in First Addition to Edgar M. Webb and Carolyn Webb, his wife. Lot 10 was among those lots. On October 21, 1980, the Webbs by quit claim deed conveyed Lot 10 to James R. Hager and Margaret E. Hager, his wife. The Hagers otherwise owned Lot 9 in Block 2, which adjoined Lot 10. On November 17, 1980, the Hagers by quit claim deed conveyed a part of Lot 10 to Edward Crawford and Marian Crawford, his wife. On September 17, 1982, the Hagers by quit claim deed conveyed the remaining part of Lot 10 to James E. Elfrank and Myrtle J. Elfrank, his wife. The Elfranks received a separate warranty deed for Lot 9 in Block 2 upon which a residence was located. On May 21 1984, the Crawfords by warranty deed conveyed Lot 15 and their part of Lot 10 to Gary W. Horn and Dawn M. Horn, his wife. The conveyance in that warranty deed was made subject to all restrictions, reservations, conditions, easements and exceptions of record.

In 1982, Hager told other lot owners that he owned the park. He directed that the playground equipment and picnic tables be removed from the area. That direction was complied with. Defendants Elfrank moved to the residence on Lot 9 on Easter Sunday in 1984. Elfrank built a higher fence around Lot 10. On July 5, 1984, he barricaded the ramp to what he described as "the community boat dock." He said he did so because his insurance agent told him he would be liable if anyone got hurt on his property. At Elfrank's instance, the sheriff came to the area and advised the community to stay off of Elfrank's property.

By their brief the plaintiffs contend that upon each of four bases the lot owners in First Addition are entitled to an easement in Lot 10 for park purposes. Those bases are dedication, implied grant, prescription and estoppel. The defendants contend there is no such easement because the community use of Lot 10 was permissive and because there can be no dedication in favor of a private person or a group of private persons. In support of the last proposition the defendants cite the following. "There is no such thing as a 'dedication' between an owner and individuals. The public is the only party to a dedication. The dedication must be of a use that serves the public at large." Marks v. Bettendorf's, Inc., 337 S.W.2d 585, 593 (Mo.App.1960). They also cite Village of Climax Springs v. Camp, 681 S.W.2d 529 (Mo.App.1984).

The creation of easements in platted areas, such as the one in question, has been recently considered by this court in Anderton v. Gage, 726 S.W.2d 859 (Mo.App.1987). The principles controlling the resolution of this case are reviewed in Anderton. It is not necessary to restate in detail those principles.

It is sufficient to observe that the defendants' contention that an easement for park purposes in favor of the lot owners must fail because such an easement was not granted to the general public is without merit. Confusion often exists because of a failure to observe a careful distinction between proper use of the term "dedication" to categorize the creation of rights of use in the general public and the use of that term in reference to the creation of rights of use in an individual or a group of individuals. "[T]he judgment should have declared lot (X) to have been dedicated to the use of all owners of lots in the subdivision." Cassell v. Reeves, 265 S.W.2d 801, 803 (Ky.1954). While such rights may coexist, there are fundamental differences in the creation of and incidents of public and private rights of use. Moseley v. Searcy, 363 S.W.2d 561 (Mo.1962); Deitz v. Johnson, 121 W.Va. 711, 6 S.E.2d 231 (1939). The general subject is analyzed and discussed in Annot., Conveyance With Reference to Plat, 7 A.L.R.2d 608 (1949). As used in the cases cited by defendants, the term "dedication" is properly used in the determination of whether or not rights of use in the general public have been created by acts constituting a statutory or common law dedication. See Weakley v. State Highway Commission, 364 S.W.2d 608 (Mo.1963); State ex rel. State Highway Commission v. Public Water Supply District No. 2 of Jefferson County, 559 S.W.2d 538 (Mo.App.1977).

But, those cases do not stand for the proposition that rights of use in a platted area may not be granted to or acquired by an individual or group of individuals. This is true even though the term "dedication" is used, not in the strict sense noted above, but in the sense of a grant of an easement. See Rose v. Fisher, 130 W.Va. 53, 42 S.E.2d 249 (1947). The relationship of public and private rights of use has been appropriately recognized in many cases. "Independent of dedication, which must be for the benefit of the general public, lot owners may acquire an easement or property right in streets or parks by reason of reference thereto in their deeds, or by reason of a conveyance according to a plat which shows the existence of such facilities." Moore v. Queener, 62 Tenn.App. 490, 464 S.W.2d 296, 301 (1970) (emphasis in original). "[P]rivate rights to the use of land delineated in a subdivision plat exist independently of any public right that might exist by reason of a dedication, and that it is unimportant whether this rule is based on a theory of implied grant, implied covenant, or estoppel." Huning v. Potts, 90 N.M. 407, 564 P.2d 612, 614 (1977). "However, rejection by the City would not necessarily mean that title reverted to the dedicator, free and clear of all claims of lot purchasers. They could have rights against him in the nature of an easement to keep open the space shown on...