Burris v. Mercer County

THOMAS H. NEWTON, Judge.

Factual and Procedural Background

Mr. Eric Stack, Mr. Chad Cain, and Mr. Lute Cain (Appellants) appeal the trial court’s decision finding that a road had not been abandoned. Appellants own land in Mercer County, Missouri, which they purchased in 2003 for hunting and recreation. To the west of Appellants’ land is property owned by Mr. Gerald Burris and Mr. Jerry Burbridge (Respondents). Mr. Burbridge purchased his land in 1994, and Mr. Burris purchased his land in 2003. A road, known by several different names including River Bend Road (road), ran through Appellants’ land, and led to the river. At one time a bridge crossed the river, but in the 1950s the bridge was destroyed. Without the road, Respondents’ property is landlocked. Most of the witnesses testified that the road was overgrown with brush and trees. Only one of the witnesses, Mr. Kent Donelson, testified that there were no trees in the road.

Mr. Burbridge testified that he had used the road to access his land from 1994 until 2004. His use ended in 2004 when Appellants blocked access by erecting a gate across the entrance to the road. Mr. Burris requested that the county commission reopen the road. The commission informed him that he would need a petition in order for the county to expend funds to open the road. Mr. Burris also testified that he was told that if he spent the money no petition would be needed. He decided to clear the road so that he could get to his land. He hired Mr. Donelson to clear the trees from the road. They started to remove the trees and brush from the road with a bulldozer and had cleared approximately three hundred yards. One of Appellants’ neighbors noticed the sound from the bulldozer. He confronted the bulldozer operator, asking him what he was doing and if he knew where the property line was located. In response, the operator contacted Mr. Donelson, and the bulldozing ceased. Shortly thereafter, Appellants retained a lawyer and filed a trespassing complaint with the sheriffs office. ■

Appellants notified Respondents of the damage to their land. Respondents initiated a declaratory judgment action against Mercer County to declare that the road was an open public road. Appellants later intervened and filed a cross-petition for trespass and damages against Respondents.

The trial court entered judgment declaring the road to be an open public road and denied Appellants’ cross-claim. On appeal, Appellants argue that the road was abandoned because it had not been used for five continuous years by the public; the road was impossible to use for more than five continuous years; witnesses testimony proved that the road was abandoned by nonuse for five continuous years; the judgment was against the weight of the evidence because it disregarded Respondents’ own testimony, the testimony of numerous witnesses, and the Respondents’ stipulation regarding abandonment; the judgment erroneously failed to apply the five year statutory term for abandonment; and the judgment did not adequately describe the road. We affirm the judgment of the trial court.

Standard of Review

The standard of review for a declaratory judgment action is the same as in any other court-tried case, the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Harrison v. DeHeus, 230 S.W.3d 68, 74 (Mo.App. S.D.2007). We will affirm “unless it is against the weight of the evidence, there is insufficient evidence to support it, or it erroneously declares or applies the law.” Id. ‘We accept as true the evidence and reasonable inferences therefrom in favor of the prevailing party and disregard the contrary evidence.” Id. We defer to the credibility determinations of the trial court. Id. When there is conflicting evidence, we defer to the trial court, even if the conflicting evidence would support a different conclusion. Id. “One asserting abandonment of a public road must carry the burden of showing such abandonment by clear and cogent proof.” Faustlin v. Mathis, 99 S.W.3d 546, 550 (Mo.App. S.D.2003) (citation and quotation marks omitted).

Legal Analysis

“ ‘[Vjaeations of highways are not favored, and ... the presumption will always be in favor of their continuance.’ ” Oetting v. Pollock, 189 Mo.App. 263, 175 S.W. 222, 224 (1915)(quoting Kyle v. Bd. of Comm’rs of Kosciusko, County, 94 Ind. 115, 116 (1884)). “‘The only limitation upon the abandonment of an established public road is that it must not be done to the injury of the vested rights of abutting owners or persons similarly situated.’ ” Id. (quoting Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590, 591 (1911)). In Oetting, the court held that where abandonment will result in the deprivation of the way of ingress and egress to plaintiffs property, the road could not be abandoned. Rather, it could only be vacated by a proceeding held for that purpose, in which the plaintiffs would be allowed to appear and assert their rights. Id. In this case, Respondents’ property will become landlocked if the road is deemed abandoned by nonuse. There has been no formal proceeding for vacation of the road, so the only basis Appellants have is abandonment by non-use, which is inappropriate unless Respondents have acquiesced to the abandonment. Although the court in Oetting went on to analyze abandonment by nonuse in that case, the rule is clearly stated that abandonment by nonuse cannot be accomplished where the public road is the only method of ingress and egress. The remainder of the opinion seems to serve only to show that the trial court’s analysis of abandonment for nonuse was incorrect, because the appellate court’s treatment of the abandonment issue was not needed to justify reversal.

The dissent cites two pieces of evidence from the record that indicate that Mr. Burbridge’s use of the road was permissive, so he did not use the road as a public road. First, after the bulldozer was prevented from clearing the road, Mr. Bur-bridge encountered Mr. Stack on the property and asked for permission to use the road to get to his property. This was not until 2004, after ten years of use. Second, Mr. Burbridge testified that there had never been any problem with the previous owners accessing his land. He was then asked, “As long as you were hunting?” He replied, “Yes, as long as I was hunting.” It does not say that he sought permission. Nor did he say that he had permission, just that the previous owners had never mentioned a problem with him using that portion of land to access his property. This evidence has two equally valid interpretations. First, that Mr. Burbridge used the road and never had any conversation about it with the owners. Second, that he used the road with their permission. Under our standard of review, we make reasonable inferences in favor of the judgment. Therefore, we must interpret the second piece of evidence to indicate that for ten years Mr. Burbridge used the road without obtaining permission from anyone. Thus, any permissive use began in 2004, which did not provide the requisite five years of nonuse.

Furthermore, assuming that any use prior to 2004 was not permissive, Mr. Bur-bridge’s request for permission after the bulldozing incident does not necessarily indicate the he believed he needed permission to use the land. His request could be interpreted as seeking to diffuse a complicated and contentious issue with his neighbor during an ongoing legal dispute and not as an indication that he thought he always needed permission. Mr. Burbridge has not acquiesced to the abandonment of the road for five years because he used the road appropriately without permission until 2004, supporting the finding of public use.

The road was used by the public for five continuous years

In their first two points, Appellants argue that the road was not in public use for five continuous years and that it was impossible for the road to have been used by the public for five continuous years. A public road can be abandoned in one of two ways: through either a formal vacation accomplished by filing a petition, section 228.110,¹ or nonuse by the public for five years continuously, section 228.190. Hedges v. County Court for Ray County, 581 S.W.2d 73, 77-78 (Mo.App. W.D.1979).

The trial court found that the road was not abandoned, and citing State ex rel. Perkins v. Taylor, 666 S.W.2d 853, 856 (Mo.App. S.D.1984), the court stated:

The question is not whether any county money or labor has been expended in a given time period, or even that the road may be impassable by all but those walking. Rather, the question to be answered is did the Defendant and/or Third-party Plaintiffs herein show a complete, clear and entire abandonment in which all the public concurs for a five year period.

The trial court continued, stating that the Appellants did not meet their burden of proof in light of the evidence presented at trial, in particular the testimonies of Mr. Burbridge and Mr. Donelson, which the trial court found to be credible. Mr. Bur-bridge testified that he had used the road to reach his land from 1994 until 2004 when he was denied access. Mr. Donelson testified that the road was maintained and used by him when he farmed ground near this road in the late 1980s. Furthermore, county minutes reflected that there was uncertainty about whether the road had been abandoned, which conflicted with the testimony of many county officials that the road had been abandoned. The trial court noted that although many county officials stated that the road was abandoned, their testimony indicated that their use of the term abandoned did not conform to the legal definition. While there was evidence that contradicted Mr. Donelson and Mr. Burbridge, the trial court specifically found that their testimony was credible, rather than the contradictory testimony.

Appellants rely on statements made by Mr. Burbridge that his property is landlocked, that the road had not been maintained for over five years, and that he could not have driven a four wheel drive truck down the road. This reliance is misplaced and misconstrues the testimony. Mr. Burbridge was asked if any part of his property was not landlocked, to which he replied that the land in question was landlocked. However, in subsequent testimony, he indicated that there was a road leading to the land, which he used and claimed was a public road.

Whether the road was maintained is relevant but not determinative of whether the road was used by the public. See Perkins, 666 S.W.2d at 856. The dissent discusses the lack of maintenance by the county on the road to support a finding of abandonment. However, the statute only requires maintenance to establish a public road. § 228.190.1. The abandonment of a public road is exclusively determined by use according to the statute. Id. While some cases have considered whether there was maintenance, if there was any use by the public, they often have confused opinions, which seem to conflate the issue of establishing county roads and abandoning them. See Kleeman v. Kingsley, 167 S.W.3d 198, 204, 206 (Mo.App. S.D.2005)(although the court mentioned testimony establishing that no public moneys had been expended on maintenance of the road, the judgment of the court that abandonment had been established only referred to nonuse); Ankrom v. Roberts, 126 S.W.3d 798, 802 (Mo.App. S.D.2004)(the only mention of maintenance is in regard to whether the road was established as a county road); Faustlin, 99 S.W.3d at 549-50, 551 (maintenance established that road was a county road; evidence of maintenance also supported finding that road was not abandoned); Taylor, 666 S.W.2d at 855-56, 857 (maintenance established that road was a public county road; evidence against abandonment included use and maintenance of the road before an alternate road was created). In Seaton v. Weir, the road had been used and maintained to about 1950. 633 S.W.2d 212, 213 (Mo.App. E.D.1982). There was no evidence of maintenance after the early 1950s, but there was evidence of sporadic use up until the time of trial. Id. at 214-15. The court found that the road was not abandoned because there was sporadic use of the road. Id. at 215. Thus, the fact that the road was not maintained is not determinative in this case because there is evidence of sporadic use, and nonuse for five years is the only determinative factor in abandonment cases. Although Mr. Bur-bridge said he “wasn’t driving a four-wheel-drive truck down it,” he had walked and driven a four-wheel ATV on the road. So while he indicates he could not drive a larger vehicle, he could walk or drive a smaller vehicle on the road, which supports a finding of use.

Furthermore, although Mr. Donelson testified that there were no trees in the road when he went to clear the road, the trial court apparently disbelieved his assessment. “‘The trial court is free to believe or disbelieve all, part, or none of the testimony of any witness.’ ” Cuda v. Keller, 236 S.W.3d 87, 91 (Mo.App. W.D.2007)(quoting T.B.G. v. C.A.G., 772 S.W.2d 658, 654 (Mo. banc 1989)). The trial court found that it was a public road and that removal of trees from the road did not constitute trespass because the trees could not belong to Appellants. Therefore, the trial court found Mr. Donel-son credible on the issue of farming and maintaining the road in the past but not in regard to whether there were trees in the road.

The dissent argues that there was no use by the “public” because there was only evidence that the Respondents used the road. Missouri courts have discussed and defined public use of roads. “ ‘That [a public road] is used infrequently, intermittently or rarely does not meet the standard [of abandonment]. If used at all, the road will not be deemed abandoned.’” Taylor, 666 S.W.2d at 856 (quoting Hedges, 581 S.W.2d at 78 (Mo.App.1979)). See also Oetting, 175 S.W. at 224. “ ‘The fact that the road is rarely, if ever, used by persons other than the appellants, makes it none the less a public highway.’ ” Oetting, 175 S.W. at 224 (quoting Small v. Binford, 41 Ind.App. 440, 83 N.E. 507, 510 (1908)) (emphasis added). This indicates that a use by Mr. Burbridge alone is sufficient to meet the use requirement.

The dissent cites Kleeman for the proposition that we look at the use of neighbors and the public at large to determine whether a road has been abandoned. Although we do look at the public at large, “ ‘[t]he right to use a public road cannot be surrendered or abandoned unless all of the public concur therein.’ ” Kleeman 167 S.W.3d at 203 (quoting Chapman v. Lavy, 20 S.W.3d 610, 613 (Mo.App. E.D.2000)). “‘The law does not fix the number of persons who must travel upon a road to determine its existence.’ ” Oetting, 175 S.W. at 224 (quoting Small, 83 N.E. at 510). Thus if even one member of the public, e.g. Mr. Burbridge, does not concur in its abandonment and uses the road, it is not abandoned. Mr. Burbridge used the road; therefore, the whole public did not abandon it. This point is denied.

The road was not rendered impossible to use for five continuous years by the presence of trees and brush

In their second point, Appellants argue that the law was incorrectly applied because there were trees and brush growing in the road. In Ankrom v. Roberts, the court found that “timber was growing in the alleged public road, that fences and debris obstructed the road, and that the public had not used the road for a continuous period of five years.” 126 S.W.3d at 802. In Kleeman v. Kingsley, the trial court had found that the area was nearly impassable by foot or horse, trees up to fifteen inches in diameter had grown there, and the road was covered in brush. 167 S.W.3d at 204. The trial court found this testimony credible, and the appellate court found that trial court’s decision was sufficiently supported. Id. at 204-05.

In both of these cases the fact that there were trees in the roadway was a contributing factor to finding that the road was abandoned. However, trees in a roadway do not necessarily mean that the road has been abandoned, particularly when there is evidence that the public has used the road. Furthermore, in Ankrom there were other contributing factors to the impassability, and in Kleeman the growth was so bad it was nearly impassable even on foot. That is not the case here, where Mr. Burris had used the road both on foot and in an all-terrain vehicle to reach his property. Thus, the road was not impossible to use due to the trees and brush. This point is denied.

The witnesses all testified that there were trees growing in the roadway but this does not require a finding of abandonment

In addition to the two cases cited in the previous point, Appellants claim that the Western District stated that a road was abandoned which had trees, brush, and grass growing in it. Corbin v. Galloway, 382 S.W.2d 827, 829 (Mo.App.1964). The issue in this case however, was not whether the road had been abandoned; all parties agreed that it had been. Id. Rather the issue was reversion of the former right of way and damages for conversion of hedge for fence posts. Id. at 831-32. This court did not find that the road had been abandoned because it had trees and brush growing in it. Instead, this comment was merely a description of the condition of the former right-of-way, which each of the parties agreed to have been abandoned before it was cleared. See id. at 828-29.

This argument is an extension of the previous point as all the witnesses testified about the number and size of the trees. This testimony is not enough on its own to show that the road was impassable or that it was not used. Furthermore, the key is whether the public had used the road, not whether it was impossible for certain uses by the public. This point is denied.

The trial court did not incorrectly disregard Respondents’ witnesses or stipulation regarding abandonment

Appellants argue that the trial court’s judgment was against the weight of the evidence because so many witnesses testified that the road had been abandoned. Many Mercer County officials and local individuals did testify that the road had been abandoned. However, ‘abandoned’ is a statutorily defined concept with a distinct legal meaning, which may not conform to a county official’s or local resident’s understanding of the colloquial meaning of abandoned. The trial court points to this in a footnote in its judgment in which the court states that the terms “abandoned” and “vacated” have been misused throughout the trial. Thus, the trial court found that the terms as the witnesses used them were not the same as the statutorily defined meaning, and, therefore, the weight of the evidence regarding their testimony that the road was abandoned is not substantial in determining whether the road was abandoned.

Appellants also argue that it was stipulated by the county and Respondents that the road was abandoned. The trial court’s judgment stated that the stipulation signed by both parties reflected the agreement by the parties as to what the county would have argued. The signed stipulation filed June 22, 2006, stipulates that the road was a public road, which had not formally been closed. The stipulation further stated that the county was claiming that the road had been abandoned for at least five years. This is not an agreement to the proposition that the road had been abandoned; Respondents merely agreed that the county was claiming that the road was abandoned. This point is denied.

The trial court correctly applied the five-year term

Appellants claim that the only evidence of use was in the late 1980s by Mr. Donel-son and after 1994 by Mr. Burris. But because the bridge had collapsed in the 1950s, the road had been abandoned long before this use, and there was no evidence of use during those times.

However, this is an improper shift in the burden of proof. “One asserting abandonment of a public road must carry the burden of showing such abandonment by clear and cogent proof.” Faustlin, 99 S.W.3d at 551 (citation and quotation marks omitted). This is a difficult standard for a party to meet. Id. Therefore, Appellants were required to show a period of five continuous years in which the road had not been used. Merely stating that the bridge had been destroyed in the 1950s is not clear and cogent evidence of abandonment. Thereafter, the evidence focused on the age of the trees. Aside from the diameter of the trees, the only evidence is that some of them were at least five years old. Mr. Burbridge’s use since 1994 means that if the evidence of the age of the trees were enough, they would have to be at least ten years old. Such evidence was not presented. The diameter of the trees is no help without testimony about the type of tree and its approximate age based on its diameter. This point is denied.

The lack of a legal description in the judgment was not an error

Appellants claim that the judgment contained no legal description and, therefore, that the judgment should be reversed. Although a judgment regarding real property should contain the location of the real property in question, and the judgment did not contain a legal description, the judgment was nevertheless sufficient for this purpose. Courts in this state have held that although property should be precisely defined, the degree of precision is different for different types of cases. Allen v. Smith, 375 S.W.2d 874, 882-83 (Mo.App.1964). Less detail is required to describe and define the route of a country road or way of access across a farm than the description of a driveway easement between two city lots. Id. at 883.

In this case three exhibits, each of which marked the location of the old road, were entered at trial without objection. Additionally, the road is still shown on county maps and aerials. Thus, the location of the road was defined sufficiently for the purposes of the judgment as the location set forth in the exhibits. This point is denied.

For the foregoing reasons the judgment of the trial court is affirmed.

THOMAS NEWTON, Judge, writes for the majority.

VICTOR HOWARD, Chief Judge, HAROLD LOWENSTEIN, JAMES SMART, RONALD HOLLIGER, LISA WHITE HARDWICK, JAMES WELSH, and ALOK AHUJA, Judges, concur.

JOSEPH ELLIS, Judge, writes for the dissent.

PAUL SPINDEN and JOSEPH DANDURAND, Judges, concur.

1 . All statutory references are to RSMo 2000 and the Cumulative Supplement 2005.