State ex rel. Rhodes v. City of Springfield

• Court: Missouri Court of Appeals
• Writing for the Court: FLANIGAN; GREENE
• Citation: State ex rel. Rhodes v. City of Springfield, 672 S.W.2d 349 (Mo. App. 1984)
• Decision Date: 09 May 1984
• Docket Number: 13049,Nos. 13039,s. 13039
• Parties: STATE of Missouri, ex rel., and William S. RHODES, et al., Plaintiffs- Respondents (Cross-Appellants), v. CITY OF SPRINGFIELD, Springfield, Missouri, et al., Defendants-Appellants, and STATE of Missouri, ex rel., and William S. RHODES, et al., Relators- Respondents, (Cross-Appellants), v. William E. ROBINETT, et al., Respondents-Appellants.

Page 349

672 S.W.2d 349

STATE of Missouri, ex rel., and William S. RHODES, et al.,

Plaintiffs- Respondents (Cross-Appellants),

v.

CITY OF SPRINGFIELD, Springfield, Missouri, et al.,

Defendants-Appellants, and STATE of Missouri, ex rel., and William S. RHODES, et al., Relators- Respondents, (Cross-Appellants), v. William E. ROBINETT, et al., Respondents-Appellants.

Nos. 13039, 13049.

Missouri Court of Appeals,

Southern District,

Division One.

May 9, 1984.

Motion for Rehearing or to Transfer Denied

June 1, 1984.

Application to Transfer Denied

July 17, 1984.

Howard C. Wright, Jr., City Atty., Springfield, for defendants-appellants.

Royal M. Miller, Springfield, for plaintiffs-respondents (cross-appellants).

FLANIGAN, Presiding Judge.

Doubt concerning whether the north portion of Airwood Drive was a "street" gave rise to two civil actions which were consolidated and tried, without a jury, before Honorable Jack A. Powell, Judge of Division I, Circuit Court of Greene County.

In 1978 the owners of Lots 25, 26, and 27 in Cherrymill Subdivision, an addition to the City of Springfield, desired to build a new house on each of the three lots. The owners obtained building permits from the appropriate city officials and commenced construction. A few days later, the city's Director of Building Regulations issued a "stop work order." Unable to obtain relief from the stop work order from the Board of Adjustment of the City of Springfield, or from the city council, the owners instituted the two actions in the circuit court. The first action is a certiorari proceeding against the five members of the Board of Adjustment. The second action is an injunction proceeding in which the defendants are Springfield and various city officials.

In 1956 Cherrymill Subdivision was surveyed and platted and the plat was recorded in Greene County. At that time the subdivision was east of, and outside, the city limits of Springfield. The subdivision contained two north-south streets--Prince Lane and Airwood Drive. Airwood Drive is one block west of Prince Lane. The third street in the subdivision is Cairo Street which runs east and west. Both Airwood Drive and Prince Lane cross Cairo Street and continue past the south line of the subdivision. In 1964 Cherrymill Subdivision was annexed by Springfield.

The crucial inquiry is the legal status of that portion of Airwood Drive which lies north of Cairo Street. That portion will be referred to as "the north portion."

The three lots are contiguous and they lie, generally, at the northeast corner of the intersection of Airwood Drive and Cairo Street. Lot 26 is rectangular and is the corner lot, abutting both the north portion and Cairo Street, with its frontage on the north portion being the longer side of its rectangle. Lot 25, which adjoins Lot 26 on the east, abuts Cairo Street. Lot 27, which adjoins Lot 26 on the north, abuts the north portion.

The stop work order set forth the following reasons for its issuance: (1) the north portion is not a street as required by the city's Zoning Ordinance; (3) even if the north portion is a street, it does not extend "primary means of access" to the three lots because the north portion has not been improved as required by the Zoning Ordinance; (2) even if the north portion is a street, the city charter and the Subdivision Ordinance of the city will not permit [the owners] to improve the north portion "except to standards established by the city."

Those standards include curbing and guttering.

The owners challenged the stop work order by filing, with the Board of Adjustment, an appeal from its issuance and an "alternative request for variance." In their application to the board the owners stated that they were willing to improve the north portion to a stated extent. After an evidentiary hearing the board denied both the appeal and the request for variance.

The owners then filed the certiorari proceeding in the circuit court and requested that the record of the proceedings before the board be certified to the court so that the court could adjudicate the legality of the board's action. The owners also filed the injunction action seeking an order restraining the injunction defendants from interfering with the construction of the new houses on the three lots and from cancelling the building permits previously issued to the owners.

After directing its writ of certiorari to the board and receiving the board's record the court heard evidence at a consolidated trial and rendered a judgment which was entered in both actions. That judgment, in essence, reversed the decision of the board and permitted the owners to build the houses after the owners had improved the north portion "to the same street standard as exists on Airwood Drive south of Cairo Street, said standard being 'graded street with chip and seal surface.' " The judgment discharged the city from any duty to maintain the street improvements made by the owners. Before proceeding with construction of the houses the owners were required to complete the improvements of the north portion or post a sufficient bond that they would do so.

Both sides to the two actions appeal to this court. Defendants in both of the actions below will be referred to as "the city." The appeals will be considered in this order: the city's appeal in the certiorari action, the city's appeal in the injunction action, the owners' appeals in both actions.

CITY'S APPEAL IN THE CERTIORARI ACTION

The city's first point is that the trial court erred in holding that there had been a common law dedication of the north portion because that holding was contrary to § 82.190 ¹ and various provisions of the Springfield City Charter. Specifically, the city argues there was no such dedication because there was no clear showing that the city accepted the north portion.

In its findings, which were incorporated in the judgment, the trial court stated that there were "very few" facts in dispute and the "problem is one of applying the law to the facts." Among the findings of the trial court, fully supported by the record, are those set forth in the next seven paragraphs.

In 1956 one Holt owned certain land in Greene County east of the city limits of Springfield. Holt improved the land by having it surveyed and platted. The plat, known as "Cherrymill Subdivision," was duly executed, acknowledged and filed in 1956 in the Greene County recorder's office. The plat numbered and described the lots and delineated three streets and utility easements. The three streets were Prince Lane, Airwood Drive, and Cairo Street, all of which have been mentioned earlier in this opinion. The plat and the restrictions which were recorded with it recited that the streets were dedicated to the public.

After the plat was filed Holt improved the three streets by grading, ditching, and surfacing them with some type of material. Prince Lane was covered with a "chip and seal" surface, both in the subdivision and in that portion of Prince Lane which extends south of the subdivision. Cairo Street was covered with "dirt and gravel" and so was Airwood Drive. After the north portion was treated with dirt and gravel and was ready for an oil seal, the seal was not applied because a nearby landowner "did not want it covered with oil."

In 1964 Cherrymill Subdivision was annexed by the city. Although city records for 1964 reflected that "chip and seal" was to be placed all along Airwood Drive, including the north portion, the city did not maintain the north portion. The north portion was "perhaps overgrown with grass" in 1964, but "there was a physical street there." The city did maintain, in the subdivision, the rest of Airwood Drive and Prince Lane and Cairo Street. After annexation the city issued a number of building permits for the construction of new houses on both Prince Lane and that portion of Airwood Drive lying south of Cairo. The recipients of those permits were not required to construct curb and gutters or otherwise improve the abutting street.

After annexation of the subdivision, Airwood Drive, including the north portion, was shown on "the official map" of the city, on the city "zoning maps," and on the map used for assignment of house numbers.

In 1979 the city condemned a portion of Cherrymill Subdivision, including six lots owned by the plaintiffs. Those six lots lie at the north end of the north portion, five of them on the east side and the sixth on the west side of the north portion. The city provided the condemnation defendants, who are the instant owners, with a map showing the portion of their property being taken. All of Airwood Drive was shown on that map. Although the north end of the north portion was taken, the owners were not paid any compensation for that north end but were paid for the land taken from the six lots.

In 1981 Mark Young, a graduate engineer with considerable experience in street design, drove his "Jeep" the entire length of the north portion. There had been no maintenance of the north portion for a number of years and some of it was grown over with grass, weeds, and small trees. The trees were north of the three lots. An expert witness for the city testified, with respect to the north portion, that "probably 10 or 15 years ago something was there ... but we never maintained that public right-of-way." A culvert, of the "tin whistle" type, permitted entry onto the north portion from Cairo Street.

The owners offered to improve the north portion but the city refused permission unless the north portion was "curbed and guttered." No streets in the subdivision have been curbed and guttered, although the city has improved all of the streets in the subdivision except the north portion.

The city's contention is that it has not "accepted" the north portion. The trial court's finding, however, that the north portion was a street by reason of a common law dedication, is supported by the record. The conduct of the city in accepting and...