Osburn v. Supreme Exp. and Transfer Co.

• Decision Date: 01 October 1979
• Docket Number: No. KCD,KCD
• Citation: 590 S.W.2d 360
• Parties: Morris E. OSBURN and Adaline Osburn, his wife; Gary Kyle Williams, Individually and as Executor of the Estate of Eva L. Williams, Deceased; Maxwell P. Casey and Sammy Casey, his wife; D. Gary Spencer and Nita A. Spencer, his wife; Paul E. Sapp and Jessie E. Sapp, his wife, Plaintiffs-Appellants, v. SUPREME EXPRESS AND TRANSFER COMPANY, a Missouri Corporation; Harry T.Bussmann, Jr.; and James A. Gresham, Defendants-Respondents. SUPREME EXPRESS AND TRANSFER COMPANY et al., Defendants-Appellants, v. Morris E. OSBURN et al., Plaintiffs-Respondents. 29931.
• Court: Missouri Court of Appeals

Page 360

590 S.W.2d 360

Morris E. OSBURN and Adaline Osburn, his wife; Gary Kyle

Williams, Individually and as Executor of the Estate of Eva

L. Williams, Deceased; Maxwell P. Casey and Sammy Casey, his

wife; D. Gary Spencer and Nita A. Spencer, his wife; Paul E.

Sapp and Jessie E. Sapp, his wife, Plaintiffs-Appellants, v. SUPREME EXPRESS AND TRANSFER COMPANY, a Missouri

Corporation; Harry T.Bussmann, Jr.; and James A.

Gresham, Defendants-Respondents.

SUPREME EXPRESS AND TRANSFER COMPANY et al., Defendants-Appellants, v. Morris E. OSBURN et al., Plaintiffs-Respondents.

No. KCD 29931.

Missouri Court of Appeals, Western District.

Oct. 1, 1979.

Motion for Rehearing and/or Transfer Denied Oct. 29, 1979.

Application to Transfer Denied Dec. 6, 1979.

Robert L. Hawkins, Jr., Hawkins, Brydon & Swearengen, Jefferson City, for plaintiffs-appellants.

Ronald K. Carpenter, Phillips, McElyea, Walker & Carpenter, Camdenton, for defendants-respondents.

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

SHANGLER, Presiding Judge.

The dispute concerns a promontory of land, known as Cooper's Point, on the main channel of the Lake of the Ozarks in Morgan County. The plaintiffs own contiguous tracts of land on the Point on which stand their dwelling houses. These tracts are on an eminence high above the water. The defendant Supreme Express and Transfer Company (wholly owned by defendant Bussmann) has a splendid edifice the Chateau du Lac on the waterfront. ¹ Two ways interlace the Bussmann property, the Upper Road and the Lower Road, and are the only practical means of access to and from the lakefront for the plaintiffs and others on the elevated portion of the Point. The defendant Bussmann installed gates across the Upper Road and the Lower Road, tended by the defendant Gresham caretaker for the Bussmann property to prevent pedestrian and vehicular movement to the lakefront, and this litigation ensued.

The petition of the plaintiffs comes in two counts. Count I pleads that the Upper Road is a public road and seeks to enjoin the defendants from interference with that use by the plaintiffs and to enforce removal of the posts and gates installed by the defendants. Count II seeks determination that the plaintiffs own easements by prescription over the Lower Road access to the Lake and over a strip of lakefront used to dock their boats, and seeks also to enforce removal of posts and gates installed across that road by the defendants and to enjoin interference with the use of the easements by the plaintiffs.

The court found for the plaintiffs on Count I and adjudged that a twenty-foot width of the Upper Road was a public roadway, enjoined the defendants from obstruction of the roadway or interference with use by the plaintiffs and ordered the defendants to remove the posts and gates installed within the public way. The court found for the defendants on Count II of the petition. The parties cross-appeal from the judgment adverse to each.

COUNT I: THE UPPER ROAD

The defendants contend that the judgment on Count I was erroneous because the evidence proved neither a public road established by dedication nor a user and public expenditure under Chapter 228, RSMo 1978. More exactly, the defendants contend that a donation by deed of the Upper Road failed for want of a certain description and that the order of the County Court to open the Upper Road as a public way was not recorded as required by § 228.190.

A public road may be established by prescription, or by dedication, or by the effect of statute. Gover v. Cleveland, 299 S.W.2d 239, 241(1-4) (Mo.App. 1957). The judgment on Count I does not say by what principle of law the Upper Road was adjudicated as an established public road, but only that: "the roadway along and upon the twenty feet strip of land hereafter described is a public roadway."

The evidence on Count I, taken most compatibly with the judgment, shows: The present location of the Upper Road dates from about year 1932 when the Union Electric Company impounded the Osage River at the Bagnell Dam to form the Lake of the Ozarks. The lowland road to the Osage River inundated by the Lake waters was relocated on the Point with funds paid to Morgan County by the Union Electric Company. The Upper Road ² was intended to supplant that access to the waterfront previously available by the lowland road and so was graded to the edge of the Lake for that purpose. Even before the inundation, however, there was a lane roadway along the general contours of the later Upper Road used by the public which traversed the Point to a ferry on the river bank.

The lands on the Point were at that earlier date in the common ownership of Peter Milton Cooper. In September of 1923, Cooper undertook to convey to Morgan County by recorded quitclaim deed A strip of land (40) feet wide for a public road across my farm in Section 16, Township 40 North, Range 16 West, of the 5th Principal Meridian, as surveyed and located by the Highway Engineers of Morgan County, Missouri.

The deed by which defendant Supreme Express and Transfer Company (the defendant Bussmann) acquired title to the land on Cooper's Point mentions the conveyance by quitclaim.

The defendants contend that the description in the Cooper quitclaim transfer so lacks definiteness as to render location of the roadway impossible. They contend also that the allusion by the deed to a survey by the Highway Engineers of Morgan County cannot be borne out by the records of the County Clerk. We conclude that the deed by Cooper in year 1923, even if sufficient to locate the roadway over his land, did not, without a public acceptance, amount to establishment of a public way. A county court alone has authority to establish a new county road with or without petition. Foster v. Dunklin, 44 Mo. 216, 218 (1869). Thus, to constitute a common law dedication of a county road, there must also be an adoption of that deed by the county court an action altogether lacking. Vossen v. Dautel, 116 Mo. 379, 22 S.W. 734, 735 (1893); Hayes v. Kansas City, 294 Mo. 655, 242 S.W. 411, 414 (1922). The quitclaim deed by Cooper absent acceptance by a proper authority was without efficacy to invest the Upper Road as a public way.

After the lake flooded the lowland, Cooper in November, 1931, once again conveyed a right-of-way by deed filed with the County Clerk, this time as an incident of a (now) Chapter 228 proceeding to open a public way. The petition to the County Court to locate the public road gave the beginning, course, and terminus of the way, the names of the owners of the lands affected (§ 228.020), notice to them of the proceedings (§ 228.030), upon which, in the absence of remonstrance (§ 228.040), the County Court directed the county highway engineer to survey the proposed way (§ 228.060) and, upon proof that the right-of-way was secured, the County Court then ordered the road established (§ 228.080). Thus, the Upper Road was declared a legally-established county road in year 1932. The relinquishment of the right-of-way by Cooper was filed in the County Court of Morgan County as public record (§ 228.090) but not with the Recorder of Deeds of that county as also required by that statute.

The defendants contend that neither they nor their predecessors in title had either the constructive notice of a public road over their lands that a recorded deed imparts, nor actual knowledge of the instrument of relinquishment of that strip to public use, so that the conveyance is invalid as against them.

The jurisdiction of a county court to open a public way, once vested, does not lapse merely because other formal requirements of Chapter 228 have been met only imperfectly. Ripkey v. Binns, 264 Mo. 505, 175 S.W. 206, 208(4) (1915). The power of a county court to render such an order rests by statute on a petition in due form attended by the names and notice to the persons affected by the placement of the road. Stutz v. Cameron, 254 Mo. 340, 162 S.W. 221, 226 (1914); Bennett v. Hall, 184 Mo. 407, 83 S.W. 439, 440 (1904). In this case, Cooper and his wife the only landowners affected consented to the county action by their deed of donation so there was no question of sufficiency of notice or objection by remonstrance, and since the precise course of the proposed road was plotted by survey, there could be no question of the formal sufficiency of the petition either.

The defendants concede that the failure to record the conveyance of right-of-way as required by § 228.090 was a defect in the statutory proceeding to establish a county road not essential to jurisdiction to adjudicate the subject matter of the petition, and so is cured by a proof compliant with § 228.190:

All roads in this state that have been established by an order of the county court, 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.

The defendants contend, however, that there was no proof of public money or labor spent on the Upper Road for ten continuous years for any period from December 31, 1932, the date of the order to establish the road, so the failure to record the conveyance of right-of-way was not meliorated as to them and they are entitled to the land unburdened by that public use.

We conclude, however, that the Upper Road was lawfully opened as a public way by as to the defendants a regular order and proceeding of the county court under Chapter 228 and that whatever formal defect resulted from the neglect to record the conveyance of right-of-way did not affect the defendants. Accordingly, the plaintiffs had no need for resort to §...