State ex rel. State Highway Commission v. Lynch
| Decision Date | 10 December 1956 |
| Docket Number | No. 45325,No. 2,45325,2 |
| Citation | 297 S.W.2d 400 |
| Parties | STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Philip R. LYNCH and Leatl A. Lynch, Appellants |
| Court | Missouri Supreme Court |
Miller, Fairman & Sanford, John H. Fairman, Springfield, for appellants.
Robert L. Hyder, Minor C. Livesay, Jefferson City, for respondent.
BOHLING, Commissioner.
On July 21, 1955, the State of Missouri ex rel. State Highway Commission of Missouri, relator, instituted a condemnation action against Philip R. Lynch and Leati A. Lynch and other defendants. This is an appeal by the above named defendants from an order sustaining the written dismissal by relator of the action against them. Defendants state they are abutting property owners along U. S. Route 66 with the right of direct access to, from and across the highway involved, a valuable property right; that they are statutory and necessary parties to the condemnation action, and that they may not be deprived of their property rights without the payment of just compensation as required by art. I, Sec. 26, Mo.Const. V.A.M.S., and the equal protection and due process provisions of the State (art. I, Sec. 10) and Federal (Amend. 14) constitutions. Defendants' property abuts the highway right of way on the north.
Relator's right to proceed with its condemnation action is not questioned. Consult Mo.Const. art. IV, Secs. 29, 30, Chapters 226 and 227. (Statutory references are to RSMo 1949 and V.A.M.S. unless otherwise indicated.) Among other powers, relator is vested with '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.' Mo.Const. art. IV, Sec. 29. The provisions of Chapter 523 are applicable to condemnation actions instituted by relator. Secs. 226.270, 227.120(13).
The record discloses that the condemnation action contemplated the improvement of 9.189 miles of U. S. Route 66 by establishing a limited-access highway or 'thruway,' with granular type outer or service roads on the existing right of way for entrance and exit to and from the thruway of Route 66; and to that end it was sought to acquire certain easements for right of way purposes and other easements and rights in connection with lands particularly described in the petition. In some instances it was sought to acquire the abutting landowner's right of direct access to U. S. Route 66.
Relator alleged in its petition:
'5. Relator has in compliance with law found, determined, and declared that the public interest and safety require that direct access, and rights of direct access to, from, and across said section of State highway be limited as indicated on said plans; that, except at locations and as otherwise specifically shown on said plans, no abutters' rights in, or of direct access to, from, or across the highway or its right-of-way shall attached or belong to any property abutting on said section of highway, or to any person merely because of ownership of such abutting property; and there shall be the usual right of access over any location shown on said plans as an entrance or where any such entrance, underpass, or an open public highway is being maintained by the governmental agency having authority therefor; that wherever an adjacent outer-roadway is so shown or maintained, there shall be the usual right of direct access between the abutting property and such outer-roadway, and along it to and from the nearest lane of the thruway or a public highway; that, however, during all times while an outer-roadway is being so maintained, there shall be no right of access over any part of an entrance which lies between said outer-roadway and the thruway. * * *' (Emphasis supplied.)
Relator originally sought a 5 foot by 80 foot strip of defendants' abutting land for a drain, the petition reading:
'9.00 Lands, properties or interests, ownership of, or legal rights in which are claimed by Philip R. Lynch, Leati A. Lynch, to wit:
'9.10 An easement for right of way for a highway now known as U. S. Route 66, across the following 0.01 acre, more or less.
'9.11 That part of the NW 1/4 of NW 1/4 of Section 29, T. 36 N., R. 11 w, * * * [Here follows a description of the 0.01 acre, which need not be set out].'
On October 3, 1955, relator, prior to any hearing on its petition, filed a motion to dismiss
On October 7, 1955, defendants filed a 'reply' to relator's motion to dismiss, raising the issues here presented.
After a hearing, the court entered its order reading: 'Plaintiff's Motion to Dismiss as to defendants Philip R. Lynch and Leati Lynch sustained and cause dismissed as to them.'
Defendants argue that they have a predetermined abutters' property right of access directly from their property to, from and across U. S. Route 66, and that they are statutory and necessary parties under Sec. 523.010 to the condemnation action. Kansas City Interurban R. Co. v. Davis, 197 Mo. 669, 680(II), 95 S.W. 881, 883(2), 114 Am.St.Rep. 790; Anderson v. Pemberton, 89 Mo. 61, 65(II), 1 S.W. 216, 217(2). Consult Sec. 507.030.
At the time of the decisions in the Kansas City Interurban R. Co., 1906, and Anderson, 1886, cases, now Sec. 523.010(1) (see Sec. 1264, R.S. 1899) read, in part, with respect to the petition: '* * * to which petition the owners of all such parcels as lie within the county or circuit shall be made parties defendants, by name, if the names are known, and by the description of the unknown owners of the lands therein described, if their names are unknown.' Following the Kansas City Interurban R. Co. case, said Sec. 1264 was amended by Laws 1907, p. 165, to read: '* * * to which petition the owners of any or all, as the plaintiff may elect, of such parcels as lie within the county or...
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