Mccullough v. Doss
| Decision Date | 31 August 2010 |
| Docket Number | No. SC 90673.,SC 90673. |
| Citation | 318 S.W.3d 676 |
| Parties | Lynn Kay McCULLOUGH and Shirley Ann McCullough, his wife, Respondents,v.Nadine DOSS and Howard Allen, Appellants. |
| Court | Missouri Supreme Court |
Donald L. Cupps, Ellis, Cupps and Cole, Cassville, Cordelia F. Herrin, Melton & Herrin PC, Cassville, for Appellants.
Richard L. Schnake, Neale & Newman LLP, Springfield, for Respondents.
Lynn Kay and Shirley Ann McCullough (Plaintiffs) filed suit against Nadine Doss and Howard Allen (Defendants) to quiet title to a disputed parcel of land referred to as “Tract A.” At trial, Plaintiffs claimed title to Tract A by deed and adverse possession, while Defendants asserted that Tract A was a public roadway. The trial court entered a judgment that quieted title in favor of Plaintiffs. The judgment is affirmed.
In 1954 and 1955, the Missouri highway department constructed Missouri state Highway 39. The new highway followed a public road that ran between Plaintiffs' property and Defendants' property. Near the north end of the two properties, the new highway left the route of the existing public road and curved eastward through Plaintiffs' property. This route left a portion of the public road intact as a border between Plaintiffs' land and Defendants' land. This portion of the public road, Tract A, is the disputed property in this case. At trial, the parties agreed that Tract A was originally a public road. Plaintiffs claimed part of Tract A, up to the center of the former road, by the prior deed and the rest of Tract A by adverse possession. Defendants maintained that Tract A remains a public road. The court quieted title to Plaintiffs with no findings of fact requested or given. Defendants appeal.
This case was tried without a jury. Consequently, the judgment will be affirmed unless there is no evidence to support it, the judgment is against the weight of the evidence, or the judgment erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Factual issues on which no specific findings are made shall be considered as having been found in accordance with the result reached. Rule 73.01(c).
At trial, Plaintiffs asserted that the public road traversing Tract A was abandoned pursuant to section 228.190.1, RSMo Cum. Supp. 2007. Section 228.190.1 provides as follows:
All roads in this state that have been established by any order of the county commission, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same.
Plaintiffs introduced evidence showing that more than five years had passed since the public had used the public road on Tract A. As such, Plaintiffs assert that the trial court properly determined that road was abandoned as provided in section 228.190.1.
Defendants argue that Plaintiffs' claim fails as a matter of law because the nonuse provision of section 228.190.1 is not applicable to land voluntarily conveyed to a county to be used for a road. Because there is no evidence demonstrating how the road traversing Tract A became a public road, it is impossible to determine whether the evidence presented by Plaintiffs was sufficient to determine how the road could be vacated or abandoned. Defendants' argument is premised on a line of cases that holds that the abandonment provision of section 228.190.1 is not applicable to roads built on land that was conveyed voluntarily to a county for road purposes. See, e.g., Coffey v. State ex rel. County of Stone, 893 S.W.2d 843, 848 (Mo.App.1995) (); Kleeman v. Kingsley, 167 S.W.3d 198, 203 (Mo.App.2005). Therefore, under Defendants' argument, the public road traversing Tract A may have been established via a voluntary conveyance, which would render section 228.190.1 inapplicable. Without evidence of the manner in which the road was created, Defendants contend there is no way to properly apply section 228.190.1. This argument hinges on the validity of the decisions in Coffey and Kleeman.
The plain language of the nonuse provision applies to “any public road.” This Court's precedent consistently has applied the plain language of section 228.190.1 and never has required proof of the manner in which the public road was established. In Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590, 591 (1911), this Court interpreted a predecessor to section 228.190.1, which provided that “[a]nd non-user by the public for a period of ten years continuously of any public road shall be deemed abandonment of the same.” This Court held that the nonuse provision “is applicable to any public road; hence, there is no reason why it should be construed as having been intended to apply only to roads which the public acquired through imperfect proceedings in the county court.” Id. at 591. The court further noted that “the statute, by clear and positive terms, is made applicable to any highway or public road, however acquired.” Id.
In State ex rel. Highway Commission v. Herman, 405 S.W.2d 904 (Mo.1966), this Court limited Johnson by noting that the nonuse provision of section 228.190 does not apply to property “voluntarily conveyed in trust to be used for the purpose of establishing streets thereon as they shall be needed and that lands so dedicated in perpetual trust and platted for such purposes can only be abandoned by an act as deliberate as that by which they were acquired, that is, by proceeding under § 228.110....” Id. at 908. The Herman court cited Robinson v. Korns, 250 Mo. 663, 157 S.W. 790 (1913); Bobb v. City of St. Louis, 276 Mo. 59, 205 S.W. 713 (1918); and Winschel v. County of St. Louis, 352 S.W.2d 652 (Mo.1961), as examples of the proper limitation of the section 228.190.1 nonuse provision. In each of these three cases, this Court held that the nonuse provision did not apply to property conveyed for road purposes but on which the roads had not yet been built. In other words Herman, through reliance on Robinson, Bobb and Winschel, recognizes the self-evident proposition that the public cannot abandon a public road that never was built or otherwise established. The party asserting abandonment of an existing public road only needs to prove what section 228.190.1 provides; namely, “nonuse by the public for five years continuously....” The decisions in Coffey and Kleeman misinterpret the nonuse provision of section 228.190.1 and, on that point, no longer should be followed. The trial court did not err in applying the nonuse provision of section 228.190.1 in the absence of evidence demonstrating the method used to establish the public road on Tract A.
Defendants also argue the nonuse provision is inapplicable because section 228.190.2 provides that “from and after January 1, 1990,” roads for which a county received county aid road trust (CART) funds may not be abandoned except through formal abandonment proceedings. A prerequisite to the application of section 228.190.2 is that the alleged abandonment must have occurred after 1990. Therefore, even if the county received CART funds for the road on Tract A, the road still could be abandoned as long as the abandonment occurred before 1990. The flaw in Defendants' argument is that Plaintiffs' evidence demonstrated that the road was abandoned prior to 1990.
Plaintiff Lynn McCullough bought the land in 1955 after Highway 39 was completed. McCullough testified that the public stopped using Tract A when the highway was completed....
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