Sheedy v. Missouri Highways and Transp. Com'n

• Decision Date: 21 December 2005
• Docket Number: No. 26893.,26893.
• Citation: 180 S.W.3d 66
• Parties: Robert SHEEDY, Jr. and Sharon Sheedy, Husband and Wife, Plaintiffs-Appellants, v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Defendant-Respondent.
• Court: Missouri Supreme Court

180 S.W.3d 66

Robert SHEEDY, Jr. and Sharon Sheedy, Husband and Wife, Plaintiffs-Appellants, v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Defendant-Respondent.

No. 26893.

Missouri Court of Appeals, Southern District, Division Two.

December 21, 2005.

John M. Albright, Poplar Bluff, MO, for Appellants.

Michael L. Jackson, John W. Koenig, Jr. and Rich Tiemeyer, Sikeston, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Plaintiffs Robert and Sharon Sheedy ("the Sheedys") appeal from a summary judgment in favor of Defendant Missouri Highways and Transportation Commission ("the Commission"). The instant lawsuit arose after the Commission brought an action to condemn some of the Sheedys' real estate for an expansion of Highway 60. The area to be condemned excluded a parcel of land, approximately 1.2 acres in size, which the Sheedys' predecessors in title had conveyed to the Commission by quit-claim deed in 1929 to serve as a highway right-of-way. Based on this prior conveyance, the Commission contended that it was not required to condemn the 1.2 acre tract because it had already purchased, and continued to possess, an easement interest in this land.

In response, the Sheedys filed a lawsuit challenging the Commission's position that it currently possessed an easement over the 1.2 acre tract. Relying on § 228.190, the Sheedys claimed the Commission had abandoned its easement through five years of nonuse.¹ The Commission and the Sheedys filed cross-motions for summary judgment. The trial court decided § 228.190 does not apply to state highways and granted summary judgment to the Commission. On appeal, the Sheedys challenge that ruling; alternatively, they request that the case be remanded so they can proceed on a theory of common law abandonment. Finding no merit in either argument, we affirm the trial court's judgment.

I. Facts and Procedural History

This case involves a segment of Highway 60 in Carter County, Missouri, that was constructed over seventy years ago. On June 29, 1929, the Commission paid $550 to the Sheedys' predecessors in title to purchase a right-of-way for a state highway. The Commission's right-of-way interest in this land was conveyed by way of a quit-claim deed. The deed, which was titled "CONVEYANCE OF RIGHT OF WAY," granted the Commission an easement interest in this 1.2 acre tract of land. See Ogg v. Mediacom, L.L.C., 142 S.W.3d 801, 811-12 (Mo.App.2004) (quitclaim deed titled "RIGHT OF WAY DEED" conveyed an easement for state highway right-of-way purposes); Hartman v. J & A Dev. Co., 672 S.W.2d 364, 365 (Mo.App.1984) (the use of terms such as "right of way," "road," or "roadway" as a limitation on the use of land is a strong, almost conclusive indication that the interest conveyed is an easement).

At some point in time prior to 1986, the intersection of Highway 60 and Highway A was rebuilt in such a fashion that the disputed 1.2 acre tract became an unused roadbed. This portion of the old highway ran about 200 feet from Highway A to a dead end about 75 feet from the new location of Highway 60. In 1986, the Sheedys purchased the property on which the roadbed lies. The public has not used the old roadbed at any time since the Sheedys acquired the property. Robert Sheedy, who makes his living as a truck driver, utilized the roadbed as a place to park his tractor-trailer unit when he was not on the road.

In 2003, Defendant filed an action to condemn other portions of the Sheedys' property for the purpose of expanding Highway 60 into a four-lane highway. The Commission did not seek to condemn the 1.2 acres on which the unused roadbed lies. The Commission claimed it still had the right to use the easement it purchased in 1929 for the same purpose; i.e., a highway right-of-way. Thereafter, the Sheedys filed a multi-count lawsuit against the Commission. The Sheedys' petition included counts for declaratory relief, ejectment, inverse condemnation, quiet title and trespass. All of the requests for relief in the Sheedys' petition were based on the premise that the Commission had abandoned its easement by operation of law pursuant to § 228.190, which states:

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 same.

Although the first sentence of this statute limits its application to roads established by order of a county commission, the Sheedys claimed the five-year nonuser provision contained therein applies to state highways.² The Sheedys' contention was based on § 227.090, which states:

All laws of this state relating to the construction, maintenance or obstruction of roads, which do not conflict with the provisions of chapters 226 and 227, RSMo, and are consistent with the provisions of said chapters, shall apply to the construction, maintenance and obstruction of all state highways, and the duties and powers imposed by such laws on certain officials shall devolve upon the engineer, or other officer of the highways and transportation commission designated by the commission.

The Commission disputed the Sheedys' contention that § 228.190 applies to state highways.

The Commission and the Sheedys filed cross-motions for summary judgment presenting this legal issue for the trial court to resolve. In the Sheedys' response to the Commission's motion, they admitted that "their claims in each count of the petition are only dependent of the application of § 228.190 to the property and/or property rights owned by [the Commission]." In the Sheedys' suggestions opposing the Commission's motion, they agreed that "the entire case hinges on whether § 227.090 makes § 228.190 applicable to State highways." In the Sheedys' own motion, they stated that "the undisputed facts as set forth below establish that they are entitled to judgment as a matter of law as the road on their property was abandoned by non-use by the public for five years as provided for in § 228.190." They repeated their admission that they were not entitled to relief on any count of their petition unless § 228.190 applies to state highways.

The judge ruled that issue against the Sheedys. The court decided § 228.190 did not apply to state highways because this statute was not a law "relating to the construction, maintenance or obstruction of roads." The court entered summary judgment for the Commission, and the Sheedys appealed.

II. Standard of Review

In the Sheedys' lawsuit, the Commission was the defending party as that term is defined by Rule 74.04(b).³ A defending party "may establish a right to summary judgment by showing: (1) facts negating any one of the claimant's elements; (2) that the party opposing the motion has presented insufficient evidence to allow the finding of the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support a properly pleaded affirmative defense." Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 58-59 (Mo. banc 2005).

The Commission moved for summary judgment on the ground that it had not abandoned its easement interest in the 1.2 acre tract of land. The Sheedys' response to that motion admitted they were not entitled to relief on any of the five counts in their petition unless § 228.190 applies to state highways, resulting in an abandonment of the Commission's easement interest by operation of law. Thus, the Commission sought to establish its right to summary judgment by the first method listed above: negating the essential element of abandonment. The material facts relevant to this legal issue are not in dispute. The trial court decided the issue in favor of the Commission.

For reasons to be stated anon, the only question properly presented by the Sheedys' appeal is whether § 228.190 applies to state highways. Since there is no genuine issue as to any material fact pertinent to this question, we are presented with an issue of law to decide. See City of Springfield v. Gee, 149 S.W.3d 609, 612 (Mo.App.2004). We review the trial court's determination of that legal issue de novo without any deference to how the question was decided below. Bumm v. Olde Ivy Development, LLC, 142 S.W.3d 895, 896-97 (Mo.App.2004). Our task is to determine whether the Commission, as the party moving for summary judgment, was entitled to judgment as a matter of law. Rule 74.04(c)(6); A & E Enterprises, Inc. v. Clairsin, Inc., 169 S.W.3d 884, 886 (Mo.App.2005).

III. Discussion and Decision

In the court below, the Sheedys presented only one theory for the trial court's consideration. They argued that § 228.190 applies to state highways as well as county roads; consequently, by not using the easement for five years, the Commission abandoned its interest in that property by operation of law. On appeal, the Sheedys have substantially modified their position. The Sheedys' point relied on asserts that, even if the trial court was correct in concluding that § 228.190 does not apply to state highways, we should remand the case so they can proceed anew on a theory of common law abandonment. Accordingly, our first task in treading out the grain of this appeal is to decide whether the Sheedys may rely on a new theory, advanced for the first time on appeal, to overturn the trial court's judgment.

We begin by noting that appellate review of a decision to grant summary judgment is limited to the issues put before the trial court. Barner v. The Missouri Gaming Co., 48 S.W.3d 46, 50 (Mo.App.2001); Country Mut. Ins. Co. v. Matney...