Short v. S. Union Co.

• Decision Date: 10 April 2012
• Docket Number: No. WD 74096.,WD 74096.
• Citation: 372 S.W.3d 520
• Parties: Gregory E. SHORT, Appellant, v. SOUTHERN UNION COMPANY, et al., Respondents.
• Court: Missouri Court of Appeals

372 S.W.3d 520

Gregory E. SHORT, Appellant,

v.SOUTHERN UNION COMPANY, et al., Respondents.

No. WD 74096.

Missouri Court of Appeals, Western District.

April 10, 2012.

Michael P. Joyce, Kansas City, MO, for appellant.

Roy C. Bash and Christopher L. Johnson, Kansas City, MO, for respondent Stadium Industrial Park Association, Inc.

Before Division One: CYNTHIA L. MARTIN, Presiding Judge, THOMAS H. NEWTON, Judge and ALOK AHUJA, Judge.

CYNTHIA L. MARTIN, Judge.

Gregory Short (“Short”) appeals from the trial court's judgment that granted a directed verdict in favor of the defendants, Southern Union Company d/b/a Missouri Gas Energy (“Southern Union”) and Stadium Industrial Park Association, Inc. (“Stadium Industrial”). Short claims that the trial court erred by concluding that the definition of “strict necessity” as used in section 228.342¹ required Short to prove that his property could legally be put to an industrial use before he was entitled to the establishment of a private road to permit access to his landlocked property. Because we conclude that the trial court erroneously construed section 228.342, specifically the definition of “strict necessity” intended by the legislature, we reverse and remand.

Factual and Procedural Background²

On August 8, 2008, Short, as the trustee for the Gregory E. Short Trust, purchased a tract of undeveloped property from Harold King (“King”). The tract is approximately 3.72 acres in size and is located at 7651 Interstate–70 (“Property”). The Property is landlocked. ( Appendix 1, attached ). It is bounded on the north by the Interstate–70 right of way. It is bounded on the west by two tracts owned and/or occupied by Jack Cooper Transport Co., Inc. (“Jack Cooper Transport”) and Manchester Properties LLC (“Manchester Properties”). It is bounded on the south by two tracts known as Lot 1 Stadium Industrial Park and Lot 1 Stadium Industrial Park II. The parties stipulated at trial that Lot 1 Stadium Industrial Park is owned by Southern Union (which took title to the tract in 2007). Short and Stadium Industrial stipulated at trial that Lot 1 Stadium Industrial Park II is owned by D.M. Enterprises ³ (the developer of Stadium Industrial Park). Lot 1 Stadium Industrial Park is located immediately to the west of Lot 1 Stadium Industrial Park II.

Manchester Trafficway, a public thoroughfare, runs roughly north/south and lies to the west of the Jack Cooper Transport/Manchester Properties tracts. Those tracts have direct access, therefore, to Manchester Trafficway. Lot 1 Stadium Industrial Park and Lot 1 Stadium Industrial Park II do not abut Manchester Trafficway but have access to that public road through the use of a private road (hereinafter “Tract C”). ( Appendix 2, attached ). The Property does not abut Manchester Trafficway and has no direct access to Manchester Trafficway.

Tract C was established by a plat recorded by D.M. Enterprises in 1994. That plat commenced development of Stadium Industrial Park. The plat describes Tract C as a private street for ingress and egress to lots in Stadium Industrial Park. The Property is not a part of Stadium Industrial Park and has no legal right to use Tract C to access Manchester Trafficway. D.M. Enterprises conveyed title to Tract C to Stadium Industrial ⁴ in 2006.

Tract C connects in a perpendicular fashion to Manchester Trafficway and runs east along the southern boundary of the Manchester Properties tract. Tract C then runs roughly northeast to the southeast corner of Lot 1 Stadium Industrial Park (Southern Union's property) and then continues to run along the western boundary of Lot 1 Stadium Industrial Park II (D.M. Enterprises' property). Tract C ends at a point that is approximately 200–250 feet south of the southern boundary of the Property.

After his purchase, Short accessed the Property by traveling the length of Tract C from Manchester Trafficway, and then crossing north across 200–250 feet of paved area on either Lot 1 Stadium Industrial Park or Lot 1 Stadium Industrial Park II to the southern boundary of the Property. Short testified that Tract C was not marked as a private road when he bought the Property, and as a result, he believed he had the right to use the road. An aerial photograph introduced at trial reflects that the portion of Tract C extending from Manchester Trafficway to just south of Lot 1 Stadium Industrial Park is called (and thus presumably posted as) “East 35th Terrace.” After about a year of using Tract C to access the Property,⁵ Short was notified that he was using a private road without authorization.

Short filed a petition for the establishment of a private road to afford the Property access to a public road as a matter of strict necessity pursuant to section 228.342. Short named Southern Union and Stadium Industrial as defendants. The petition proposed that the Property be afforded access to Manchester Trafficway by use of the private road known as Tract C and by the establishment of an additional stretch of private road from the end of Tract C to the southern boundary of the Property. Short proposed two alternatives for this additional stretch of private road: either a 30–foot–wide private road running roughly north/south along the eastern boundary of Lot 1 Stadium Industrial Park (the property owned by Southern Union) (“Alternative I”) ( Appendix 3, attached ), or a 30–foot–wide private road running roughly north/south along the western boundary of Lot 1 Stadium Industrial Park II (the tract owned by D.M. Enterprises) (“Alternative II”). ( Appendix 4, attached ).⁶

After Southern Union and Stadium Industrial each filed an answer and counterclaims,⁷ Stadium Industrial filed a motion for summary judgment, arguing that Short's claims were barred by the ten-year statute of limitations described in section 516.010. In its motion, Stadium Industrial contended that Short's cause of action accrued, at the very latest, when King (Short's predecessor in title) filed a suit in 1982 against adjoining landowners seeking an easement of necessity to access the Property.⁸ As more than ten years had passed since the King suit, Stadium Industrial argued that Short's petition for the establishment of a private road to access the Property was barred by the statute of limitations.

In response to Stadium Industrial's motion for summary judgment, Short claimed that because he used Tract C and land north of the end of Tract C to access the Property for over a year following his purchase, his cause of action to establish a private road did not accrue until he was advised he could no longer use Tract C. Short's petition to establish a private road was thus filed, according to Short, well within the ten-year statute of limitations.

A hearing on Stadium Industrial's motion for summary judgment was scheduled for the same day Short's petition was set for trial to the court. The trial court declared on the record that it was “going to deny the motion for summary judgment.” A bench trial on Short's petition immediately followed.

The parties stipulated to certain facts on the record.⁹ Then Short's counsel called two witnesses: Robert Parks, a civil engineer and surveyor, and Short. Parks's testimony concerned a survey that he completed in 2010 to ascertain the relationship of the properties surrounding the Property. Parks testified that there exists no access to the Property directly from a public road. Parks testified that the only realistic access to a public road for the Property required use of Tract C and the creation of a relatively short extension of private road from the end of Tract C to the southern boundary of the Property. Parks discussed two alternatives for this extension of private road: Alternative I (across Southern Union's property) and Alternative II (across D.M. Enterprise's property). Parks testified that the only other route that could be conceived would require the establishment of a private road from Tract C north along the undeveloped western boundary of Southern Union's property. According to Parks, this route was not feasible, however, because of rough terrain and topography.

Short testified about his use of Tract C to access the Property for about a year until he was informed by D.M. Enterprises that he was trespassing. Thereafter, Short could not access his Property from a public road. Short was asked about his plans for the Property. Short testified that he “envision[s] or anticipate[s] or hope[s]” to put the Property to a use typical of the rest of the area: industrial, industrial warehousing, or semi truck parking.

During cross-examination, Short admitted that he did not “have a specific use in mind” for the Property. Short stated that he had not yet requested the City of Kansas City to authorize a particular use of the Property because he does not yet have access to the Property. Short admitted that he would not be able to use the Property for an industrial purpose unless he complies with the City of Kansas City's zoning ordinances. Short was asked about the availability of utilities on the Property. Short testified that there were no water lines on the Property and that, to obtain access to public water, he would have to secure an easement. Short testified that there was a sewer line on the north side of his Property. Short testified that he had not yet inquired about the availability of electric service but that he knew there to be a three-phase electric line on the Property.

At the conclusion of Short's case-in-chief, Stadium Industrial and Southern Union moved for a directed verdict. They argued:

[E]ven if this Court were to determine that a private road should be established to allow Mr. Short access in whatever direction, he still can't use the property because he can't get an easement for water, electrical, sewer, or natural gas service. Without establishing that, [he has] failed to meet the elements of the statute to show that there is any use permitted by law to which this piece...