State ex rel. Carter County v. Pennington
| Decision Date | 02 December 1986 |
| Docket Number | No. 14482,14482 |
| Citation | 720 S.W.2d 779 |
| Parties | STATE of Missouri, ex rel. CARTER COUNTY, Plaintiff-Respondent, v. Daniel PENNINGTON, et al., Defendants-Appellants. |
| Court | Missouri Court of Appeals |
David G. Neal, Eminence, for defendants-appellants.
Bradshaw Smith, Van Buren, for plaintiff-respondent.
The defendants placed gates across a rural road where it entered and left their property of 782 acres. The road has been known by various names, such as County Road No. 11, Pike Creek Road, Five-Mile Road and the Pennington Road. The trial court found that road to be a public road and enjoined the defendants from interfering with its use.
On appeal, the defendants first contend the action was improperly brought in the name of Carter County rather than the name of the prosecuting attorney of Carter County. They cite § 56.060 and County of Shannon v. Mertzlufft, 630 S.W.2d 238 (Mo.App.1982).
Section 56.060 in part provides:
There are circumstances in which a county may properly be a party-plaintiff or a party-defendant. See State ex rel. Town of Olivette v. American Telephone and Telegraph Company, 273 S.W.2d 286 (Mo.1954). Those circumstances need not be discussed. County of Shannon did not hold otherwise. In County of Shannon the court was considering the interest of the state in abating a public nuisance, an obstruction to a public roadway. That interest exists independent of statute. "The right of the state to abate a public nuisance by proceedings in equity to enjoin is beyond dispute." State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S.W. 665, 668 (banc 1911). The procedure to be employed in enforcing that right has been partially codified in § 56.060. State ex rel. Detienne v. City of Vandalia, 119 Mo.App. 406, 94 S.W. 1009 (1906). Under the statute it has been declared, "It is clear that, if the prosecuting attorney acts at all ex officio, he must act for and in behalf of the state." State ex rel. Thrash v. Lamb, supra, 141 S.W. at 669.
Ex rel. or ex relatione means "upon relation or information." Blacks Law Dictionary 663 (4th ed. 1968). The necessity and significance of naming a relator in an action such as this is discussed in State ex rel. Detienne v. City of Vandalia, supra. Also see State v. Franklin, 133 Mo.App. 486, 113 S.W. 652 (1908). Under the statute it has been held that an action was properly maintained in the name of the state by the prosecuting attorney on the information of an individual sustaining damage by the nuisance. State ex rel. Detienne v. City of Vandalia, supra. This action was not brought in the name of the county or the prosecuting attorney. It was properly instituted and maintained in the name of and on behalf of the state by the prosecuting attorney on the information of the County of Carter. State v. Franklin, supra; State ex rel. Detienne v. City of Vandalia, supra.
By their next point the defendants contend the evidence is insufficient to support the judgment because county maintenance was not sufficient to keep the road reliably passable and there was no evidence to overcome the presumption the public user was permissive. Consideration of this point requires a brief condensation of the evidence which supports the judgment.
The road is in a sparsely populated and rugged part of Carter County. It is graded, but otherwise little improved. The road enters the defendants' property at the southeast corner thereof from an acknowledged county road. This is in close proximity to U.S. Highway 60 east of Fremont. The road extends northwesterly across the defendants' property two and one-half miles. It crosses Pike's Creek three times by "fords." The road leaves the defendants' property at a junction with Highway Y. Highway Y is a blacktop road that extends north and south through the area. Among other things, Highway Y connects Fremont with the area known as Midco. A detailed history of the road is not necessary. It is apparent from the record that at one time it was part of the only route to the Midco area. Illustrative of its history is the following testimony.
Q. Was it traveled all the way through the Pennington property back then?
A. [Mr. Dorris Usery] Oh, yeah; that was the only road there was to get back through there, to Midco and Mill Creek and Rogers Creek and all.
....
Q. Until this road was blocked last fall, was it open to the public for those sixty-seven years?
A. [Mr. Dorris Usery] Yes, sir; for sixty-eight years, it was open up until it was blocked. That is right.
The exact location of the roadway has varied over the years. However, it is conceded it has been in the same location since 1936 or 1937. The road has served as a mail route, school bus route and a road to six residences.
In support of their second point, the defendants argue maintenance of the road was minimal, it was at times impassable, and the use of the road was slight. However, the state presented evidence that public money or labor had been expended upon the road for all but two years from 1960 to 1981, when the defendants barred the entrances. To demonstrate the use of the road, the state in its commendable brief has summarized the evidence of 50 witnesses that established their knowledge of and participation in the maintenance and use of the road for the period 1915 to 1981. The defendants have not controverted that summarization. Those uses included those set forth above, and for patrol by the sheriff and conservation agent, for moving farm machinery and heavy equipment, trips to the Midco area, hauling wood, hunting, sightseeing, horseback riding and use by three wheelers. One Charles Greene used the road 12 to 20 times per year during 1978 to 1982.
The standards by which the sufficiency of the evidence is to be measured against the defendants' first argument are well established. They have received the following expressions.
To establish a public road under the quoted statutory provision [§ 228.190], it is not necessary to prove constant expenditure of public money or labor or, for that matter, expenditure thereof 'each and every year for such 10-year period' [citing cases]; but, it is sufficient to show that the expenditure of public money or labor began and 'continued from time to time for the period of limitation, as (reasonably) might be considered necessary or expedient by those in authority' [citing cases], and that such expenditure was sufficient to maintain the road 'in substantial repair and condition for public travel.'
Dayton Township of Cass County v. Brown, 445 S.W.2d 322, 324 (Mo.1969). The fact that [the disputed road] may be a great benefit to the defendant's farm and used by him and others in getting in and out therefrom does not deprive it of its public character so long as it is open for use by the public generally, and is being used by such of the public as desire or have occasion to use it; nor is its public character affected by the fact, if it be a fact, that only a few may use it.
Gilleland v. Rutt, 63 S.W.2d 199, 202 (Mo.App.1933).
In both [State ex rel. Carter County v.] Lewis] [294 S.W.2d 954 (Mo.App.1956) ] and Connell [v. Baker ] [458 S.W.2d 573 (Mo.App.1970) ], even though travel on the disputed road had greatly diminished, the court nevertheless held that decreased travel over the road did not work an abandonment, nor affect its status as a public road so long as it was open for use by the public generally and was being used by those who desire or have occasion to use it.
County of Bollinger v. Ladd, 564 S.W.2d 267, 270 (Mo.App.1978). The fact the road has been impassable at times is not decisive. State ex rel. Reynolds County v. Riden, 621 S.W.2d 366 (Mo.App.1981). The degree of maintenance required is dependent upon the character of the road.
In determining whether the evidence in this case meets the statutory standard, we take into account the fact that the evidence showed that the road in question was traveled largely by hunters and fishermen, and that it did not lead to any populous area. It would seem reasonable to say that to maintain this road in substantial repair for public travel would not require the same amount or type of labor and money that would be required...
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St. Charles County v. Dardenne Realty Co.
...of, and on behalf of, the State of Missouri by the prosecuting attorney on the information of the county. State ex rel. Carter County v. Pennington, 720 S.W.2d 779, 780 (Mo.App.1986). Because the county's petition was not brought by the prosecuting attorney of St. Charles County for and on ......