Will Inv.S Inc v. Young

• Decision Date: 31 August 2010
• Docket Number: No. SD 29586.,SD 29586.
• Citation: 317 S.W.3d 157
• Parties: WILL INVESTMENTS, INC., Danny Street, and Catherine Street, Plaintiffs-Appellants,v.Peter J. YOUNG, Defendant-Respondent.
• Court: Missouri Court of Appeals

317 S.W.3d 157

WILL INVESTMENTS, INC., Danny Street, and Catherine Street, Plaintiffs-Appellants,
v.
Peter J. YOUNG, Defendant-Respondent.

No. SD 29586.

Missouri Court of Appeals,
Southern District,
Division Two.

June 10, 2010.
Motion for Rehearing and Transfer Denied
July 2, 2010.
Application for Transfer Denied
Aug. 31, 2010.

317 S.W.3d 158

Richard L. Schnake and Judson P. Poppen, Neale & Newman, L.L.P., Springfield, for appellants.

Donald L. Cupps, Ellis, Cupps and Cole, P.C., Cassville, Darlene F. Parrigon, Parrigon

317 S.W.3d 159

Law Office, L.L.C., Pierce City, for respondent.

GARY W. LYNCH, Presiding.

Will Investments, Inc., a Kansas corporation, Danny Street, and Catherine Street (“Plaintiffs”) appeal the judgment of the Circuit Court of Barry County denying their claims for injunctive relief and damages for trespass against Peter J. Young (“Defendant”) and reforming the language of an easement granted in favor of Defendant. Finding that the reformation of the easement was not in error and that it precludes the grant of affirmative relief to Plaintiffs on their claims, we affirm the trial court's judgment.

Factual and Procedural Background

In 1962, Grover and Freda Renick purchased approximately thirty-five acres situated on a peninsula between the main channel of Table Rock Lake and Mill Creek in Barry County. Lake Road 39-9 runs north to south through the property and bisects the peninsula. The Renicks' property bordered the main channel on the east side and Mill Creek on its south side. In September 1999, the Renicks offered for sale a 10.25-acre parcel. Monte Goodman, a real estate broker with Goodman Realty in Shell Knob, represented the Renicks and listed this parcel for sale.

The 10.25-acre parcel was situated in an area without boat dock zoning adjacent to the property, as placement of a boat dock on the main channel of Table Rock Lake was not allowed. However, Mr. Renick was aware that zoning for a boat dock existed along the shoreline of Mill Creek on the south side of his property. In order to entice a prospective purchaser desiring a boat dock, the Renicks were prepared to grant an easement for boat dock access on the southern portion of their property, “across the road and south, within a quarter of a mile of” the 10.25 acres. Mr. Renick instructed Goodman to “investigate getting a boat dock.” However, Mr. Renick instructed Goodman to try to sell the property without having to provide such an easement, if possible.

Goodman investigated the procedures necessary to acquire a permit from the Army Corps of Engineers (“Corps”) for the placement of a boat dock along the shoreline of the property bordering Mill Creek. Dock zoning for a community boat dock was available along approximately 400 feet of shoreline on Mill Creek, proximate to the area where the Renicks' remaining property was situated. The Corps refers to such a zone as a “red zone.” According to permit requirements, community docks must provide a minimum of twelve stalls and can have no more than twenty. The dock must be placed perpendicular to the shoreline and at least 100 feet away from any other dock. In this location, the Corps' regulations required “[p]roof of access and parking on private property within 200 [feet] from the 915 msl (mean sea level) elevation” to the government fee take line (“GFTL”). However, this requirement may be waived, as it was for Defendant here, where the distance is greater than 200 feet if access and parking can be located on private property directly above the dock site being considered. At a minimum, one parking area-10 feet by 20 feet-for every three boat slips on the dock is required.

Mr. Renick set forth the dimensions of an easement utilizing the known Corps markers as shown on a drawing of the plat. He sketched the boundaries of an easement extending approximately 200 feet westward from the roadway across the Mill Creek side of the property then owned by the Renicks and south of the 10.25 acres offered for sale. The easement measured 25 feet in width at the roadway

317 S.W.3d 160

on the east, continued at that width westward, and then flared to a width of 50 feet at the GFTL. Mr. Renick believed these dimensions would accommodate parking and meet the minimum requirements to allow for the placement of a community boat dock immediately adjacent to the easement.

In a letter dated March 26, 2000, the Renicks informed Goodman of the terms of the easement they were proposing to grant “for the purpose of locating a boat dock.” Along with the letter, the Renicks sent the sketch of the easement they proposed to grant. The letter provided that “[t]he easement would be 25 feet wide and approximately 200 feet long with 50 foot lake frontage.” It was also stated that “[t]he longest dimensions of the dock must be perpendicular to the lake shore line.” The Renicks further indicated that they “would be interested in buying one or maybe two slips in this new dock.”

In February 2004, Defendant contacted Goodman about purchasing the 10.25-acre parcel. Within a few weeks, Defendant made an offer to purchase the parcel, as well as the “boat dock easement on Section 22 owned by seller[.]” Defendant wanted the easement as part of the transaction so that he could place a community dock adjacent to the easement. Attached to Defendant's offer was a copy of Mr. Renick's sketch of the easement Mr. Renick provided to Goodman Realty, labeled “Dock Zoning Easement.”

After the Renicks accepted Defendant's offer to purchase, Monte Goodman took the contract and Mr. Renick's sketch of the easement to Richard Asbury, of Asbury Land Title Company, who ultimately drafted the language of the easement and the warranty deed, and the easement was incorporated into the warranty deed when the property sold. The reference to the easement in the warranty deed between Defendant and the Renicks included the following language: “Together with an easement for ingress and egress to dock area over and across the following described tract[.]” On March 29, 2004, Asbury Land Title closed the transaction between Defendant and the Renicks.

After closing, Defendant employed Austin Survey to survey and flag the easement. No further work was performed on the easement until late April or early May 2006, at which time Defendant employed Bob Stewart of Lakeshore Construction to clear trees and install a culvert on the easement.

Apparently, at the same time the Renicks listed the above-referenced 10.25 acres with Monte Goodman, they also had listed with another realtor, Jennifer Busen, from Kimberling Hills Realty, a 24-acre parcel situated south of the 10.25 acres that Defendant purchased. This parcel did not sell for some time, and at some point, Ms. Busen ceased to represent the Renicks in their attempt to sell.

In mid-January 2005, Mike Fitzpatrick, a self-employed marina contractor who was interested in developing property around the lake, contacted Busen to determine if the remaining southern portion of the Renicks' property was for sale. Fitzpatrick initially partnered with Danny Street, a contractor, and his wife, Catherine, in planning a residential development, Mill Creek Landing, which included at least one community dock. Fitzpatrick later introduced Danny Street to Chuck Singleton, who ultimately joined in the endeavor after Fitzpatrick bowed out. Singleton was sole owner of Will Investments, Inc., a plaintiff herein. Although no longer a principal in the development, Fitzpatrick continued to assist in the acquisition of the real estate.

317 S.W.3d 161

At the time Fitzpatrick contacted her, Busen no longer represented the Renicks, but she contacted them with information that she had an interested purchaser and obtained a new listing from them. The Renicks dealt only with Busen and had no contact with Fitzpatrick, the Streets, or Singleton. Mr. Renick informed Busen of the sale of the 10.25 acres to Defendant and the easement burdening the parcel that Plaintiffs wanted to purchase. He provided to Busen a copy of the drawing and the easement and discussed the fact that there was an easement “ ‘[t]o get through it,’ that he had sold some land to another guy.” Busen could not remember if she showed the drawing to Fitzpatrick and had “no idea” if a boat dock was discussed, but she was sure that he knew of the easement, and “[Fitzpatrick] didn't have a problem with it.” Busen further stated that she communicated only with Fitzpatrick and never met Street or Singleton.

After Busen informed Fitzpatrick of the easement granted to Defendant, Fitzpatrick shared that information with Singleton and the Streets. In an attempt to learn whether the easement as granted would allow for Defendant's placement of a community boat dock, Fitzpatrick spoke with a Corps duty ranger and discussed the language of the easement, particularly in reference to the “ingress and egress” provision, and the easement drawing. Plaintiffs were concerned about whether the language of the easement would allow parking rights, as access for parking is necessary to meet the Corps' requirements for approval of a community dock. Parking rights are not required for private boat docks. Believing that the language of the easement would not permit parking, Fitzpatrick reported back to Street and Stapleton that they could move forward with their purchase of the property.

Fitzpatrick and Danny Street personally inspected the site of Defendant's easement and measured from the GFTL at the north corner to the shoreline along Defendant's easement. Plaintiffs intended to place their dock “immediately in front of the boundary line between the Mill Creek Landing easement and [Defendant's] easement.” The admitted intent of this placement was to prevent Defendant from placing a dock within a distance of 200 feet from his easement; placement of a dock at any greater distance, they believed, would not be approved by the Corps.

Danny Street admitted that prior to Plaintiffs' purchase of the...