State ex rel. Shannon County v. Chilton, 12262

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PREWITT; MAUS
• Citation: 626 S.W.2d 426
• Parties: STATE of Missouri, ex rel. COUNTY OF SHANNON, Plaintiff-Respondent, v. William H. CHILTON and Linda Chilton, Defendants-Appellants.
• Docket Number: No. 12262,12262
• Decision Date: 22 December 1981

Page 426

626 S.W.2d 426 STATE of Missouri, ex rel. COUNTY OF SHANNON, Plaintiff-Respondent,
v.
William H. CHILTON and Linda Chilton, Defendants-Appellants. No. 12262. Missouri Court of Appeals, Southern District, Division Two. Dec. 22, 1981.

Page 427

No appearance for plaintiff-respondent.

Margaret Zonia Morrison, Walter J. Gelber, Inc., Clayton, for defendants-appellants.

PREWITT, Presiding Judge.

This action was brought by the prosecuting attorney of Shannon County at the instigation of one or more members of the county court purporting to act for the county. ¹ The petition requested an injunction ordering defendants to remove "boulders" they had placed on the right-of-way of a county road lying immediately west of defendants' property and to refrain from harassing, interfering, or impeding county employees from discharging their duties in connection with maintaining that road. On the day the petition was filed the court entered a temporary restraining order prohibiting defendants from harassing, interfering or impeding county employees from discharging their duties and ordering defendants to remove "huge rocks (boulders) from the County road's right-of-way lying immediately West of Defendants' property."

Defendants answered by denying that they placed any rocks in the right-of-way of a county road or harassed, interfered with or impeded any county employees in their duties. They also filed a counterclaim in two numbered counts. Count I sought damages for damage to defendants' property and fences due to "careless and negligent use" of county grading equipment by county employees. Count II sought damages for the appropriation of defendants' property by the county by its widening the roadway along defendants' property. Defendants also sought a declaratory judgment asking the trial court to declare that the claimed roadway is not a public road but if the court declares it is so, that the county has only an easement of 71/2 feet along the edge of defendants' property for the west half of the roadway.

The evidence showed that defendants had placed large rocks around their fence posts along the road, but there was no evidence that defendants had placed any rocks or boulders upon the traveled portion of the roadway. Nor was there evidence that defendants had harassed, interfered with or had impeded any of the county employees in performing their duties. Defendants presented evidence that they were damaged due to the county grading equipment cutting into their land beyond the roadway, striking their fence posts, and pushing dirt up against their fences. Their witnesses also testified that in recent years the county's employees by use of grading equipment had moved or expanded the roadway further onto defendants' property.

Page 428

The trial court found that the roadway was a public road, and "that the acts complained of, one against the other are nothing more than technical violations of property under the control of said parties and that both parties have sustained damages as a result of the conduct of each other but that said damages are inconsequential." The trial court denied all relief sought by the parties.

Defendants have five points relied on. Summarized they are: 1) The trial court erred in not assessing damages against plaintiff on Count I of defendants' counterclaim because there was evidence of damages suffered by defendants but none by plaintiff; 2) the trial court erred in not awarding defendants actual and punitive damages on Count II of their counterclaim because of plaintiff's unlawful appropriation of defendants' land; 3) the court erred in declaring that the roadway was public, but if this was not error, then the court erred in not specifically identifying the boundaries of the road; 4) the trial court erred in not granting to defendants their costs and attorney's fees; and 5) the court erred in not granting defendants' motion for reconsideration, for the same reasons as are set forth in points one through four.

We initially consider defendants' first point. They contend there that the trial court should have assessed damages against plaintiff on count one of defendants' counterclaim. It is claimed that defendants' land and fences were damaged as a result of negligent operation by county employees of the county's road grading equipment.

We first consider whether Count I can be maintained against the county. Section 537.600, RSMo 1978, restores the doctrine of sovereign immunity as it previously existed in this state prior to September 12, 1977, with two exceptions, one being "Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles within the course of their employment". On September 12, 1977, the decision in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo.banc 1977), was handed down which abrogated sovereign immunity against tort liability to claims arising on or after August 15, 1978. Prior to that decision counties were immune from tort liability. Mattingly v. St. Louis County, 569 S.W.2d 251, 252 (Mo.App.1978). See also Conner v. Crawford County, 588 S.W.2d 532 (Mo.App.1979). No challenge was made here to the validity of this statute.

It was not disputed that employees of the county operated the grader within the course...