Moulder v. Webb
Decision Date | 20 August 1975 |
Docket Number | Nos. 9538,9527,s. 9538 |
Citation | 527 S.W.2d 417 |
Parties | Morgan M. MOULDER and Nedra Moulder, Plaintiffs-Respondents, v. Ina WEBB, Defendant, and State Highway Commission of Missouri, Defendant-Appellant, and City of Camdenton, Missouri, Defendant-Appellant. |
Court | Missouri Court of Appeals |
Robert L. Hyder, William Darmstaedter, II, Jefferson City, for State Highway Comm., Richard E. Feutz, Camdenton, for City of Camdenton.
John F. Low, Lebanon, Morgan M. Moulder, Camdenton, for plaintiffs-respondents.
In this action to determine interest and quiet title pursuant to Rule 93.01, V.A.M.R., plaintiffs sought an adjudication that a 20-foot strip of land running squarely along the northeast side (front) of their property was not subject to any easement for public use. Upon trial without a jury, the court found all the issues tendered for the plaintiffs and adjudged 1) that title to the realty in question was vested in the plaintiffs in fee simple as tenants by the entirety; 2) that none of the defendants, nor any of them, had any right, title or interest, legal or equitable, in and to the realty. The State Highway Commission (Commission) and the City of Camdenton (City) have appealed and by our order the appeals have been consolidated.
Plaintiffs, husband and wife, own a motel located in part on Lots 1, 6, 7, 8, 9, 10 and 11 in Block 61 in the City of Camdenton, and in part on a 20-foot strip of land which lies squarely along the northeast line of those lots as platted. The 20-foot strip fronts on and abuts Highway 5 in the city limits of the City of Camdenton. Various structures appurtenant to the plaintiffs' motel have been constructed and are being maintained on the 20-foot strip. The record makes it appear that an improvement (widening) of Highway 5 has been undertaken, and that the proposed improvement will involve utilization of part or all of the 20-foot strip in controversy. Plaintiffs' position is that, for various reasons, the 20-foot strip is not part of the State's easement for public use. The Commission maintains that the 20-foot strip was included in and is part of the right-of-way originally acquired when Route 5 was constructed, and it regards plaintiffs' construction and maintenance of part of their motel on the 20-foot strip as an out and out purpresture. The City's position is that the 20-foot strip in question was dedicated to public use by the terms of the deed of dedication and plat filed when the City of Camdenton was incorporated as a city of the fourth class in 1931. The sole question litigated and the sole question presented here is whether or not the highway right-of-way, in the sense that 'right-of-way' means the whole easement condemned or otherwise acquired by the Commission, includes the strip of land claimed by the plaintiffs.
The appeal presents an unusual problem. In this court the parties have briefed a number of involved and somewhat novel issues with vigor and considerable competence, but quite obviously the primary and essential fact which must be established before the parties' rights can be adjudicated is the location and width of the State's easement for public use; that has not been competently established, and there is, therefore, no starting point from which we may proceed to decide the appeal on its merits.
We have repeatedly and recently held that we can no longer indulge litigants with sua sponte review of matters not properly briefed and presented, e.g., State v. Blankenship, 526 S.W.2d 78 (Mo.App.1975). We adhere to that position, but when the appeal is governed by public statutes or statutory principles we may, in the exercise of discretion, consider the effect of those statutes even though they were not called to the attention of the trial court nor considered by it in determining the merits below, 1 particularly when, as here, the public interest appears to be involved. Cf. Berghorn v. Reorg. Sch. Dist. No. 8, 364 Mo. 121, 134--135, 260 S.W.2d 573, 580(3--7) (1953).
We take judicial notice of the constitutional and statutory provisions by which the defendant Commission is vested with its powers and duties, State ex rel. State Highway Commission v. Allison, 296 S.W.2d 104, 106(1) (Mo. banc 1956), and we are bound to take notice of the public statutes of this State. State ex rel. Ford v. Hogan, 324 Mo. 1130, 1138, 27 S.W.2d 21, 23(1) (1930). Moreover, as a court we take notice of geographical facts and matters of current history. Reineman v. Larkin, 222 Mo. 156, 170, 121 S.W. 307, 311 (1909). We therefore know, judicially, that Route 5 is part of the system of highways established by the Centennial Road Law, L.1921 (1st Extra Session), pp. 131--167, and specifically that the route here involved (Highway 5 in Camden County) was designated and made a part of that system by the second sentence of para. 15, § 29 of that act, now codified as para. 15, § 227.020, RSMo 1969, V.A.M.S. Section 31 of the Centennial Road Law provided that the Commission would 'determine the width of the right of way and of the surface roadway' of the routes designated in the act as 'state highways'. Section 30 required the Commission's chief engineer to cause surveys to be made and to prepare detailed plans and specifications 'for each part (of the system) as soon as practicable'. Nevertheless, § 32 provided that the Commission might 'approve, disapprove, modify or amend' the plans laid out by the chief engineer, and further provided that 'the action of the commission thereon shall be the action of the department (sic) on such subject'. (Our emphasis) Further in this connection, we know by consulting census statistics, which we may notice, State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 424 S.W.2d 73, 79(11) (Mo.App.1968), that at the time of its incorporation the City of Camdenton had a population less than 2,500, and § 36 of the Centennial Road Law provided that ...
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