Wendy's of Mid-Missouri, Inc. v. West

• Decision Date: 12 November 1980
• Docket Number: No. WD 30850.,WD 30850.
• Citation: 606 S.W.2d 215
• Parties: WENDY'S OF MID-MISSOURI, INC., a corporation, Respondent, v. I. Leroy WEST, an Individual, and I. Leroy West, R. E. Stevens and Ely Kopman, Statutory Trustees of Property Equities, Inc., a corporation, Appellants.
• Court: Missouri Court of Appeals

606 S.W.2d 215

WENDY'S OF MID-MISSOURI, INC., a corporation, Respondent, v. I. Leroy WEST, an Individual, and I. Leroy West, R. E. Stevens and Ely Kopman, Statutory Trustees of Property Equities, Inc., a corporation, Appellants.

No. WD 30850.

Missouri Court of Appeals, Western District.

September 2, 1980.

Motion for Rehearing and/or Transfer Denied October 1, 1980.

Application to Transfer Denied November 12, 1980.

John W. Inglish, Jefferson City, for appellants.

John E. Burruss, Jr., Michael A. Dallmeyer, Jefferson City, for respondent; Hendren & Andrae, Jefferson City, of counsel.

Before WASSERSTROM, C. J., and PRITCHARD and KENNEDY, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 1, 1980.

PRITCHARD, Judge.

Respondent (Wendy's) brought suit to have a north-south street (Blair Drive) lying to the west and adjoining its property, to which street it had ingress and egress from its property, declared to be a public street and for an injunction preventing closure of the street. The trial court found and concluded that the street was public because of a common law dedication and entered an injunction against its closure. Whether there was a common law dedication is the dispositive issue on this appeal.

Property Equities, Inc., had its charter forfeited by the Secretary of State about January 1, 1973, and its last board of directors, West, Stevens and Kopman, were sued as its last and statutory trustees. Individual defendant West owned and was in possession of property north of that of Wendy's which fronts on its south on Missouri Boulevard. Wendy's property is known as 2108 and 2110 Missouri Boulevard in Jefferson City, Missouri. As Blair Drive runs north along the west side of Wendy's, there is an entrance onto the street from the northern part of its property, then as the street proceeds on north, it enters West's property and turns to the east where it runs through the parking area of Colonial Manor Apartments to Williams Street. Williams Street then connects with Dix Road and St. Mary's Boulevard.

Property Equities' predecessors in title, Herman Bell and Irwin Hilton, employed engineer Spencer Thomas, to prepare plans for development of the area in the early 1960's, and a plat of the area, showing streets, was filed in the Cole County Recorder's Office in April, 1965. It shows Blair Drive to be 30 feet wide at its intersection with Missouri Boulevard, with a total right-of-way of 45 feet. As it goes through the apartment parking area it narrows to 20 feet. Since Blair Drive was completed in 1965, it has been travelled continuously by members of the public as personally observed by witnesses Strobel, Brown and Hebel, neighboring property owners, who also used the street on a regular, continuing basis. There were no "private road" signs or barricades, and the street was not otherwise restricted. These witnesses had seen various forms of city services being performed by city employees on the street, such as maintenance, right-of-way mowing, snow removal, cindering and salting. Witness employees and former employees for the city testified that Blair Drive was treated as a city street from 1965 on, the city providing, at its expense, the services of snow plowing, cindering, weed cutting, grass mowing and sweeping, and no person ever requested that the services be stopped.

The city of Jefferson City, through its council, never did by ordinance accept the plat of the area, hence, as respondent concedes, there was never any completed statutory dedication of Blair Drive under the provisions of § 445.030, RSMo 1969. Appellants concede that the original owners (Bell and Hilton) attempted to dedicate the area in question to public use presumably by the preparation and recordation of the plat in April 1965 but that this constituted an offer to the public which was subject to withdrawal and was withdrawn when the land was sold to Property Equities. It is true, as appellants say, that the deed to Property Equities, dated August 12, 1970, made no mention of Blair Drive or any public way. Although it does not apparently appear to be relevant to the issue here of whether Blair Drive is a public way by reason of a common law dedication, appellants' predecessor in title conveyed an easement of ingress and egress to Wendy's predecessor in title as a driveway for automobiles and pickup trucks over, along and upon a private roadway owned by grantors west of and immediately adjacent to grantee's property. This private easement seems to be a part, at least, of Blair Drive, although appellants...