Rice, v. Huff and Bernard
| Citation | 22 S.W.3d 774 |
| Parties | (Mo.App. W.D. 2000) . Jeffrey N. and Theresa M. Rice, Appellants, v. Ruby L. Huff and Donna Bernard, Respondents. Case Number: WD57795 Missouri Court of Appeals Western District Handdown Date: 0 |
| Decision Date | 25 July 2000 |
| Court | Court of Appeal of Missouri (US) |
Appeal From: Circuit Court of Ray County, Hon. Werner A. Moentmann
Counsel for Appellant: Gabrielle Rhodes
Counsel for Respondent: Thomas Christopher Watkins
Opinion Summary:
Jeffrey and Theresa Rice appeal from an order of the Circuit Court of Ray County, Missouri, granting summary judgment determining that Huff and Bernard are owners of a disputed tract of land, and denying the Rices' motion for partial summary judgment in favor of the Rices. The Rices contend that a 1975 City resolution vacated the unused tract, but the trial court found that was not the case until the City passed an official ordinance and signed conveyance deeds in 1998.
AFFIRMED.
Division holds: Division holds that the vacation and abandonment of a street is a purely legislative function and may be exercised only by a formal ordinance. The 1998 ordinance cannot be given retroactive effect to the date of the 1975 resolution because retroactively vacating a street would give legal effect to a past transaction that otherwise would have no such legal effect, vacating and abandoning a street is a purely legislative function of the City, and a may only be exercised by a formal ordinance.
On August 4, 1997, Jeffrey and Theresa Rice ("Rices") filed a quiet title action seeking a declaration that under the doctrine of adverse possession they were the owners of a strip of land located between their property and property owned by Ruby Huff and her daughter Donna Bernard. The Rices now appeal from the circuit court's summary judgment determining that Huff and Bernard are the owners of the disputed tract. The disputed strip is a portion of a dedicated roadway never used for that purpose by the City of Lawson. Under RSMo 516.010,1 one of the elements of an adverse possession claim is continuous possession for ten years prior to commencement of the action to perfect title. The Rices contended that a 1975 City resolution vacated the unused tract. The trial court found that the city did not vacate the tract until it passed an official ordinance and signed conveyance deeds in 1998, less that ten years before the Rices filed their action. The dispositive question is the date upon which the City of Lawson vacated the property within which the disputed tract is located.
The parties reside in the Jefferson Heights Addition subdivision located in the city of Lawson, Missouri, a fourth-class city. The Rices reside at 1113 North Pennsylvania. Huff and Bernard own adjoining property south of the appellants at 1109 North Pennsylvania. When the subdivision was originally dedicated in 1961 there was a strip of land fifty feet wide between 1109 and 1113 Pennsylvania, dedicated for use by the City for construction of the west portion of 12th Street. The original plat also dedicated a similar strip for the portion of planned 12th Street east of Pennsylvania. The west portion of 12th Street (including the disputed tract) was never built. The east portion of 12th Street was constructed after 1975; the property originally dedicated for the planned street was fifty feet wide; the disputed tract is the southern twenty-five feet of this strip of land. For ease of discussion, the properties will be referred to in the following manner: (1) the Rices' property, (2) the Huff property, (3) the undisputed tract (northern half of vacated 12th Street; and (4) the disputed tract (the southern half of vacated 12th Street).
In April of 1961, the plat of the Jefferson Heights Addition in the city of Lawson, Ray County, Missouri, was filed and recorded. The streets running through the Jefferson Heights Addition were dedicated to the public for public use and travel. In 1976, a second plat known as
Jefferson Heights Addition II was approved and recorded. Jefferson Heights Addition II partially overlapped the eastern portion of the original Heights addition, with a boundary line lying half a block to the east of North Pennsylvania Street. One-half block of east 12th Street, therefore, was included in the Jefferson Heights Addition II.
On February 3, 1975, the Lawson Board of Aldermen voted on a motion to deed 12th Street back to the property owners adjacent to the street. The minutes from that meeting read:
Larry Swearingin made a motion that the City deed 12th Street in Jefferson Heights back to the adjacent property owners on either side. Developers to pay any cost of the transfer. Motion seconded by Murle Nolker.
On February 6, 1975, a local newspaper, the Lawson Review, announced that the Board of Alderman determined that In February of 1975, Stephen Nolker,2 a member of the Lawson Board of Aldermen, owned both the Rice and Huff properties. In June of 1975, Stephen Nolker sold 1113 Pennsylvania to Clara Knutter, who sold to the Rices in 1989. Knutter maintained the entire fifty-foot strip, planting trees, bushes and a garden. Neither Knutter's nor Rices' deeds described the disputed or undisputed tracts but only conveyed the property by the same lot descriptions contained in the original 1961 plat. In April of 1976, the Board voted to open and construct 12th Street, beginning at Pennsylvania Street and heading east through a portion of the original Jefferson Heights Addition and through the new Jefferson Heights Addition II. Also in 1976, Nolker sold 1109 Pennsylvania to Mrs. Thomas. She constructed a fence along the northern line of her lot, thus creating the appearance that the unbuilt portion of 12th Street was part of 1113 Pennsylvania. There were several subsequent owners until Huff and Bernard acquired the property in August 1990, from the Janhonens. Only the deed to Huff and Bernard purported to convey the disputed tract as well as the original platted lot.
For over thirteen years after the February meeting in 1975, the Board of Aldermen took no actions with regard to its vote to deed 12th Street to the adjacent property owners. The Board did not execute any deeds to the adjacent property owners or pass an ordinance officially vacating 12th Street. From 1975 until 1989 or 1990, the disputed tract was not on either the city or county property tax rolls. In 1988, a resident inquired about the situation upon placing his house for sale. The minutes from a Board of Aldermen meeting in March of 1988 note that the members had voted "by a motion by the Board of Aldermen instead of by a duly passed ordinance" with regard to the board's 1975 decision to deed the street to the adjoining land owners. The Board voted to contact the city attorney to "draft the appropriate ordinance to vacate W. 12th Street in the Jefferson Heights Addition." On April 11, 1988, the Board passed Ordinance No. KK358 declaring 12th Street vacated, and the mayor approved it. The ordinance reads:
Section 1. That said Board of Aldermen hereby deem it expedient and necessary that the vacation and abandonment of W. 12th Street in Jefferson Heights be formally adopted by ordinance.
Section 2. That said 12th Street in Jefferson Heights having been previously vacated, discontinued and abandoned by unanimous vote of the Board of Aldermen, said vote having been recorded in the minutes of the February 3, 1975, Board of Aldermen meeting. (Emphasis added)
Section 3. That all right, title and interest to said portion of street hereby vacant, held and owned by the City of Lawson, is hereby bargained, granted, sold and conveyed to the owners of property adjacent to said vacant street as of February 3, 1975.
Section 4. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed.
Section 5. That this Ordinance shall be in full force and effect from and after its passage and approval.
At the time the ordinance was passed, the Huff property was owned by the Janhonens, and Clara Knutter still owned the Rice property. On January 20, 1989, Mrs. Knutter conveyed her property to Theresa Rice. On January 31, 1989, the city executed quitclaim deeds conveying the vacated portion of 12th Street to the adjacent property owners; the Janhonens received a deed for the disputed tract, and Theresa Rice (then Theresa Davis) received a deed for the northern half of the vacated street. The deeds were recorded in February of 1989. At approximately the same time, the property tax rolls were changed to reflect the transfer of ownership from the city to the Janhonens and Theresa. In August of 1990, the Janhonens conveyed their property, including the disputed tract, to Huff.
Huff and Bernard removed the fence between their lot and the disputed tract in 1996 and contested the Rices' ownership of the disputed tract. The Rices then filed this action in 1997. The Rices filed a motion for partial summary judgment on the quiet title count3 of their petition. The Rices argued that abandonment of the street occurred in 1975 or alternatively was confirmed retroactively in 1989 to the 1975 action, thus supplying their necessary ten years of continuous possession.4 Huff and Bernard filed a motion for summary judgment, claiming (1) a person cannot take city property by adverse possession, (2) the actions of the Board of Aldermen in 1975...
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