Shepherd v. State ex rel. State Highway Commission

• Decision Date: 13 May 1968
• Docket Number: No. 53261,No. 1,53261,1
• Parties: Edna D. SHEPHERD, Plaintiff-Respondent, v. STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Defendant-Appellant. Edna D. SHEPHERD, Plaintiff, Appellant and Cross-Respondent, v. STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Defendant, Respondent and Cross-Appellant
• Court: Missouri Supreme Court

Page 382

427 S.W.2d 382

Edna D. SHEPHERD, Plaintiff-Respondent, v. STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of

Missouri, Defendant-Appellant.

Edna D. SHEPHERD, Plaintiff, Appellant and Cross-Respondent, v. STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of

Missouri, Defendant, Respondent and Cross-Appellant.

No. 53261.

Supreme Court of Missouri, Division No. 1.

May 13, 1968.

Arthur R. Kincaid, William B. Waters, Liberty, for respondent Shepherd; Hale, Coleberd, Kincaid & Waters, Liberty, of counsel.

Robert L. Hyder, Jefferson City, Earl H. Schrader, Jr., John E. Casey, Kansas City, for defendant, respondent and cross appellant.

FRANK W. HAYES, Special Judge.

Since both plaintiff and defendant have appealed from the judgment of the trial court herein, the parties will be referred to as plaintiff and defendant.

In 1953 and prior thereto, plaintiff Edna D. Shepherd and her husband, Ernest Shepherd (now deceased) owned in Clay County, Missouri, some real estate abutting Route U.S. 69 on the east. On February 20, 1953, plaintiff and her husband duly executed and delivered, for a consideration of four thousand eight hundred and thirty dollars, their deed to a strip of land lying along and adjoining Highway 69 on the east and located in SE 1/4 of SE 1/4 of Section 14, Township 51N and Range 32 West in Clay County, Missouri. The deed was duly recorded.

The deed contained the following reservation and restriction:

'Grantors, for themselves, their heirs, successors, assigns, and invitees, reserve the usual right of direct access between their property, east of present highway in Sections 11 and 14, T51N, R32W, in Clay County, Missouri (outside the right-of-way line), and the adjacent outer roadway shown from Stations 50/65 to 52/15 on the road plans for State Highway now designated Route US 69, and also any adjacent outer roadway which may be maintained by a governmental agency on said highway, and along such outer roadway to the thruway; and during (and only during) such time as no other adjacent outer roadway exists, the right of direct access for ordinary farm or residential purposes is reserved to and from such thruway at two places as indicated on the east side of the road plans as 'F.E.', over which owners may construct entrances 20 feet wide with 14 foot travel width, and certered at the right-of-way, one opposite Station 82/89 and one opposite Station 112/75; and also the present entrance will be maintained south of Station 68/46; but convey and relinquish all other abutter's rights of direct access between said abutting property and highway (including its right-of-way); and ownership of said abutting property shall not give any other right of access greater than, or different from, those belonging to the general traveling public.'

Up to date there has been no outer roadway constructed adjacent to Route U.S. 69 in this area and defendant has not indicated if and when such road will be built.

As stipulated in the trial court, the plaintiff now proposes to build on the land adjacent to the highway, a number of commercial buildings and either multi-family residences or apartment buildings and must use the access points in question in order that the development be profitable. It was stipulated that defendant had informed plaintiff that the use of the access points for such planned development was in violation of the terms of the restrictive covenants in the deed.

To determine the issues between the parties and to have construed the rights and liabilities of the parties under the aforesaid deed, the plaintiff brought her action for a Declaratory Judgment.

It is the contention of the plaintiff that defendant did not and does not have either statutory or constitutional power to limit, by contract or otherwise, the use of access points between the right of way of defendant and plaintiff's adjacent private property and if so, the phrase 'the right of direct access for ordinary farm or residential purposes' in the deed does not prohibit her use of the access entrances for commercial purposes and permits use of such access points in connection with apartment buildings, deplexes, multi-family residences and single-family residences.

The defendant contended that the phrase 'for ordinary farm or residential purpose' restricted the use of the two access points as to such use as would ordinarily result from ordinary farming operations and in its use as a residence for the persons living on the farm.

The trial court held (1) that the defendant had the constitutional authority to restrict access use by the deed of conveyance involved herein and (2) that the phrase 'for ordinary farm or residential purposes' in the deed restricted the commercial use of the entrance other than for ordinary farm purposes or necessary commercial uses incident to maintaining residential use and that the words 'residential purposes' would include the use of the land for apartment building, duplexes, multi-family residences and single-family residences. Each party has appealed from the ruling adverse to them. The court will consider each point in the above order.

Section 29 of Article IV of the Constitution of Missouri, V.A.M.S. among other things provides as follows:

'It (referring to the Commission) shall have authority over and power to locate, relocate, design and maintain all state highways; and authority to construct and reconstruct state highways, subject to limitations and conditions imposed by law as to the manner and means of exercising such authority; and authority to limit access to, from and across state highways where the public interest and safety may require, subject to such limitations and conditions as may be imposed by law.'

Section 227.120, V.A.M.S., among other things provides:

'The State Highway Commission shall have power to purchase, lease, or condemn, lands in the name of the state of Missouri for the following purposes when necessary for the proper and economical construction and maintenance of state highways.'

'(13) Acquiring lands for any other purpose necessary for the proper and economical construction of the state highway system for which the commission may have authority granted by law.'

In the case of State ex rel. State Highway Commission v. James, 356 Mo. 1161, 205 S.W.2d 534 (Supreme Court of Missouri, en Banc), the petition for mandamus filed by relator in the circuit court was in furtherance of a plan duly adopted by the Commission to improve Highway 40 by construction of a new road with access limited to certain designated points. The trial court held that the Commission had no power to condemn or extinguish the easement or right of abutting owners of access to the highway. In the Supreme Court, the respondent contended 'that the power to condemn the right of access has not been granted to the Commission either by constitution or statute.' In the case at bar, plaintiff contends that power to limit access by contract has not been granted Commission by constitution or statute. It is evident that if such right exists by right of condemnation it would certainly exist under voluntary contract entered into by the parties.

The Supreme Court held the constitution gave the Commission the right to limit access and to condemn it, saying l.c. 536:

'* * * Access to highways, even by abutting owners, is often limited by the necessary construction of cuts, fills, viaducts, etc., but Section 29 goes farther than that. It vests the Commission with authority, when it deems the public interest and safety to require, to limit access at points not made inaccessible by the nature of the road's construction.'

In further discussing the Commission's power to limit access, it says, l.c. 537:

'Section 29 of Article IV of the Constitution grants the Commission authority to limit the easement of access. How is it to be limited? Lacking consent of the owner there is only one way to limit or extinguish this interest in land and that is by the exercise of the power of eminent domain. Section 8759 of the statutes grants the power of eminent domain to the Commission not only to procure 'right of way' but for any other purpose necessary for the proper and economical construction of the state highway system. Section 29 of Article IV provides that limitation of access is a proper consideration in the construction of state highways where the public interest and safety may require and, therefore, announces a purpose for which condemnation may be had under the statute. The power to limit access is 'subject to (such) limitations and conditions (as may be) imposed by law.' Existing law, both statutory and constitutional, already limit and condition the taking of any interest in land by providing that just compensation must be ascertained and paid in the manner provided by statute. The general assembly is authorized to impose additional limitations and conditions.'

Also the court says at page 537:

'The foregoing shows that this court and courts of other states have held that the statutory power to condemn 'land' includes the power to condemn appurtenant easements in the land.'

In Handlan-Buck Company, a Corporation v. State Highway Commission of Missouri, Mo., 315 S.W.2d 219, this court, in approving the James case, ruled as follows:

'(6) The authority of the State Highway Commission to construct limited access highways is derived from the 1945 Constitution, Article IV, Secs. 29, 30; State ex rel. State Highway Commission v. James, 356 Mo. 1161, 205 S.W.2d 534, loc. cit. 536--538(6)(7, 8). The Constitution, Article IV, Sec. 29, provides that the Commission shall have 'authority to limit access to, from and across state highways where the public interest and safety may require, subject to such limitations and conditions as may be imposed by law.'

'In the case of State ex rel. State Highway Commission v. James, supra, cited by plaintiffs, this court en banc held that the defendant Commission had the authority to...