Kleeman v. Kingsley

• Decision Date: 31 May 2005
• Docket Number: No. 26308.,26308.
• Parties: B. Leon KLEEMAN and Glenda Kleeman, Respondents, v. Kiman J. KINGSLEY and Betty Darlene Kingsley, et al., Appellants.
• Court: Missouri Supreme Court

167 S.W.3d 198

B. Leon KLEEMAN and Glenda Kleeman, Respondents, v. Kiman J. KINGSLEY and Betty Darlene Kingsley, et al., Appellants.

No. 26308.

Missouri Court of Appeals, Southern District, Division Two.

May 6, 2005.

Motion for Rehearing or Transfer Denied May 31, 2005.

COPYRIGHT MATERIAL OMITTED

Richard L. Schnake and Andrew J. Hager, Jr., for Appellants.

Randy J. Reichard, for Respondents.

ROBERT S. BARNEY, Judge.

This is an appeal from the Circuit Court of Lawrence County's judgment pursuant to section 228.190, determining that a certain portion of a strip of land located in Lawrence County has been abandoned and vacated as a public road.¹ The strip of land (hereafter referred to as the "old county road") divides property owned and/or leased by Respondents B. Leon Kleeman and Glenda Kleeman ("Plaintiffs"). It also runs south of Plaintiffs' land and divides properties owned by Appellants (collectively "Defendants").² The old county road abuts a road designated as Lawrence County Road 2010 ("county road 2010"), which runs east and west; whereas, the southernmost end of the old county road abuts a road designated as Lawrence County Road 2022 ("county road 2022"), which also runs east and west. The old county road varies in width from thirty-nine feet where it abuts county road 2010 to twenty-six feet at the southern end where it meets county road 2022. Defendants all access their properties by traveling north on the old county road from county road 2022.

Plaintiffs' property consists of three tracts of real estate and they rent a fourth tract from a relative. Plaintiffs run a cattle operation and let their cattle roam freely across their land. They also maintain a small portion of the old county road for ingress and egress for their cattle operation.

As previously related, Defendants' properties are located south of Plaintiffs' property. To the west of the old county road, Ragan owns sixty acres which adjoin the south property line of Plaintiffs' Tract 2; the Duvalls own twenty acres which adjoin Ragan's south property line; and, Louis and Clea Kleeman own forty acres which adjoin the Duvall's south property line. To the east of the old county road, across from Louis and Clea Kleemans' property, lies the Kingsleys' one hundred and thirty-four acres.

It appears that, at various times in the past, Plaintiffs have barricaded parts of the northern portion of the old county road. In 1979 they placed a gate across the road. This particular orange gate was located slightly south of a house on their property and had a "Keep Out" sign on it. That same year, Plaintiffs also installed a cattle panel across the old county road just north of White Oak Creek and in 1986 they placed a cattle panel across the old county road at the northern edge of Defendant Ragan's property. When Plaintiffs' nephew was living on their property "in the mid-80's," he put a "Private Drive" sign on the corner where the old county road meets county road 2010 and the sign remained there until 1996. At some point in time, Plaintiffs also strung a piece of barbed wire and a "No Trespassing" sign across the old county road where it meets county road 2010.

The relief Plaintiffs sought in the trial court included a declaration that the entirety of the old county road was either never established as a public road or had been abandoned by non-use for more than five years per section 228.190. Plaintiffs also sought an injunction to prohibit Defendants from entering onto and removing fencing, trees, and brush from the northern portion of the old county road (hereafter referred to as the "disputed area"), which they claimed to own, and requested a judgment for ejectment of Defendants from the disputed area.

Defendants claimed the entirety of the old county road "is a common law public road," and sought to enjoin Plaintiffs from having gates across the disputed area. They also requested an order for Plaintiffs to remove the gates they had previously erected.

Following the second trial in this matter, the trial court entered its "Findings of Fact and Conclusions of Law and Judgment."³ In its findings, the trial court gave a detailed recitation of the evidence and testimony of the various witnesses who testified live and by way of the stipulated "Exhibit 13." The trial court found and concluded that the old county road was "legally established as a public road by implied or common-law dedication at least as early as 1916 or 1917." The trial court concluded that "based upon the credible evidence the North portion of [the old county road] has been abandoned by nonuse," pursuant to the non-user provision of section 228.190.⁴ In its judgment, the trial court declared that "the disputed area has been abandoned as a public road for the reason that for at least five (5) years prior to July of 1996 the disputed area had not been used as a public road," and entered judgment in favor of Plaintiffs and against Defendants on "Plaintiffs' Amended Petition for Preliminary and Permanent Injunction, Ejectment and Declaratory Judgment."⁵ This appeal followed.

Defendants raise three points on appeal. They maintain the trial court erred: (1) by its determination that the disputed area of the old county road had been abandoned under the five-year non-user provision of section 228.190, because such a determination was unsupported by the evidence and was against the weight of the evidence; (2) by erroneously applying the law when it determined the disputed area of the old county road had been abandoned per the five-year non-user provision of section 228.190, because Plaintiffs had barricaded the road beginning in 1979, and Plaintiffs cannot rely on any abandonment resulting from their own actions; and, (3) by erroneously applying the law in declaring the disputed area of the old county road had been abandoned under the five-year non-user provisions of section 228.190, because section 228.190 does not apply to roads created by common law dedication.

An appellate court is to sustain a judgment in a court-tried case "unless there is no substantial evidence to support it, unless it is against the weight of the evidence unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).⁶ "In assessing if there is substantial evidence, we must defer to the trial court on factual issues and cannot substitute our judgment for that of the trial judge." Chapman v. Lavy, 20 S.W.3d 610, 612 (Mo.App.2000). On review of a court-tried case, "due regard is given the opportunity of the trial court to judge the credibility of witnesses." Matter of Hancock, 828 S.W.2d 707, 708 (Mo.App.1992). "In determining the sufficiency of the evidence, an appellate court accepts as true the evidence and inferences favorable to the trial court's judgment, disregarding all contrary evidence." Behr v. Bird Way, Inc., 923 S.W.2d 470, 472 (Mo.App.1996). This Court sets aside a judgment on the grounds that it is against the weight of the evidence only when we have a firm belief that the judgment is wrong. Flathers v. Flathers, 948 S.W.2d 463, 465 (Mo.App.1997).

We begin our analysis by turning to Defendants' third point on appeal. Defendants assert that, based on Coffey v. State ex rel. County of Stone, 893 S.W.2d 843 (Mo.App.1995), section 228.190 "does not apply to roads created by common-law dedication." Accordingly, Defendants maintain the trial court erroneously applied the law in determining the disputed area had been abandoned pursuant to section 228.190. We cannot agree.

We immediately observe that no party challenges the trial court's determination that the old county road, including the disputed area, was created by implied or common law dedication.⁷ Here, the record shows the old county road had been opened as a roadway from the north end to the south end as early as 1916 or 1917, without interruption by anyone. As the trial court noted, "[t]he existence of the roadbed, the fencing along it, and the refusal of adjoining landowners to prevent the public from using the [old county road] plainly imply a purpose to create a right in the public to use the land and therefore to dedicate the [old county road] to the public."⁸ Additionally, public acceptance was shown in the instant matter by the public making use of the roadway, State ex rel. Selby v. Day, 929 S.W.2d 286, 289 (Mo.App.1996), and by public maintenance of the land involved. See Coffey, 893 S.W.2d at 847.

Defendants incorrectly argue that, based on this Court's decision in Coffey, the non-user provision of section 228.190 has no application to the present matter. In Coffey, this Court determined that "the nonuser provision of § 228.190 does not apply when ... lands are voluntarily conveyed to a county to be used for a road for public purposes." Id. at 848. Saliently, in the present matter there is no evidence of a conveyance of the relevant property by deed or by other formality as was the case in Coffey. See State ex rel. State Hwy. Comm'n v. Herman, 405 S.W.2d 904, 907-08 (Mo.1966).⁹ Accordingly, Coffey does not prevent the application of the five-year, non-user provision to the instant case. Defendants' third point is denied.

In their first point on appeal, Defendants maintain the trial court erred in determining that the disputed area was abandoned. Specifically, they argue that such a determination was against the weight of the evidence in light of Plaintiff Leon Kleeman's ("Leon") testimony regarding the use of the disputed area for his cattle operation and other activities as well as other witness testimony that the disputed area was used from the 1960's to the 1990's.

"The right to use a public road cannot be surrendered or abandoned unless all of the public concur therein, and the loss of such right to use may result only from the acts and doings of the parties entitled to the road...." Chapman, 20 S.W.3d at 613. "One asserting abandonment of a...