Nowotny v. Ryan

534 S.W.2d 559, 1976 Mo. App. LEXIS 1944
CourtMissouri Court of Appeals
DecidedFebruary 24, 1976
DocketNo. 36513
StatusPublished
Cited by3 cases

This text of 534 S.W.2d 559 (Nowotny v. Ryan) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nowotny v. Ryan, 534 S.W.2d 559, 1976 Mo. App. LEXIS 1944 (Mo. Ct. App. 1976).

Opinion

DOWD, Judge.

The plaintiffs in this court-tried class action suit are a number of residents of a condominium development known as “Southridge Town and Terrace Apartment Homes” (hereinafter Southridge). The defendants are the officers of the City of St. George, a fourth-class municipality located in south St. Louis County.

The plaintiffs’ petition for declaratory judgment sought a decree that the defendants be required to maintain and repair the streets in Southridge. The petition also asked for $18,000 actual damages.

Plaintiffs’ theory of recovery was that the condominium streets had been set apart and statutorily dedicated to the City of St. George and the public at the time of South-ridge’s formation. Alternatively, plaintiffs alleged there had been “a de facto dedication and use thereof by said City and the public.” The trial court found for the defendants. We affirm.

Southridge, which has 380 units, is located in south St. Louis County, at the intersection of Interstate Highway 55 and Reav-is Barracks Road. The condominium project was formerly an undeveloped tract of land bordering the City of St. George. In March 1965 the St. Louis County Circuit Court entered an order authorizing the annexation of this land to the City of St. George. In April 1965 the St. Louis County Council passed an ordinance annexing Southridge to the City of St. George.

There are now three streets in South-ridge: Villaridge Court, Echoridge Lane and Bunker Hill Drive. On April 29, 1965, the Southridge developers filed a plat with the St. Louis County Recorder of Deeds. This official plat showed only Villaridge Court and noted: “Villaridge Lane, 50 feet wide, together with its roundings . is hereby dedicated to public use forever. The easements shown on the plat hereon are hereby dedicated to public use forever for public utility, sewer, drainage, or sidewalk purposes.” The easements shown on the plat are narrow 10 foot strips that are marked "10' W Easement.” Echoridge Lane and Bunker Hill Drive do not appear on the plat, but they do tend to follow some of the easement markings. A City of St. George ordinance in April 1965 expressly accepted the dedication of Villaridge Court but did not mention the other two streets.

Villaridge Court, which enters Southridge from Reavis Barracks Road and terminates within the development, is conceded to be a public street that the city has always maintained. The other two streets wind through Southridge, connecting at one place with Reavis Barracks Road and at other places with Villaridge Court. The two streets are 20 feet wide unmarked lanes bordered on both sides by parking places 20 feet deep at right angles to the central driving lane. The only two entrances to Southridge are Villaridge Court and Bunker Hill Drive which intersect with Reavis Barracks Road.

The record does not show just when Bunker Hill Drive and Echoridge Lane were built. Nor is it clear whether these two streets were built by the Southridge developers or the Southridge Board of Managers. But it is clear the City of St. George did not build the two streets and has never repaired or maintained them. Since about 1967, however, the Southridge Board of Managers has expended about $18,000 to maintain and repair Echoridge Lane and Bunker Hill Drive.

The Southridge residents pay taxes to the City of St. George. In return the municipality furnishes police protection and trash collection. The city, as noted above, fully maintains Villaridge Court. Since about 1967 Southridge has requested police traffic patrols on all three Southridge streets, but the record is unclear whether such patrols were ever actually furnished. The testimo[561]*561ny differed as to whether the City of St. George or Southridge had erected the traffic signs on Echoridge Lane and Bunker Hill Drive.

The evidence demonstrated the two disputed streets supported a rather limited public use: the Southridge residents and their guests, deliveries, people who became lost while driving on Reavis Barracks Road, occasional sightseers and motorcyclists, and voters who travelled to and from a polling place in the Southridge community center. At one time a “Private: No Soliciting” sign stood at the Bunker Hill Drive entrance to Southridge, but this sign was removed prior to the trial.

Although Southridge managers had discussed with city officials the possibility of municipal maintenance for the two disputed streets, they did not formally demand public maintenance until the summer of 1973. The City of St. George denied their demand, and this suit ensued.

We review this court-tried case both upon the law and the evidence, giving due regard to the trial court’s opportunity to have judged the credibility of the witnesses. Rule 73.01(3).

On appeal plaintiffs do not seriously contend that Southridge statutorily dedicated Bunker Hill Drive and Echoridge Lane to the public when it filed its plat under Chapter 445 RSMo 1969. As noted above, this plat specifically dedicated only Villaridge Court and various easements. No mention was made of the dedication of the other two streets, nor does the plat even show these two streets. See Welch v. City of Blue Springs, 526 S.W.2d 379 (Mo.App.1975); State ex rel. State Highway Commission v. Johns, 507 S.W.2d 75 (Mo.App.1974).

The plaintiffs alternatively contend Southridge has made a de facto or common law dedication of Bunker Hill Drive and Echoridge Lane to the city. Chapter 445 does not in any way restrict the common law power of an owner to devote his land to the use of the public. City of St. Charles v. DeSherlia, 308 S.W.2d 456[6] (Mo.App.1957). In order to establish a common law dedication it must be shown that (A) the owner, by his clear and unequivocal action, intended to dedicate his land to the public use, and (B) the land so dedicated has been accepted and used by a government unit or by the general public. Hoechst v. Bangert, 440 S.W.2d 476, 478, 479 (Mo.1969).

We do not find a clear and unequivocal intent to dedicate Bunker Hill Drive and Echoridge Lane to the public use. The evidence established the streets have been maintained by Southridge since at least 1967. A “Private: No Soliciting” sign had once stood at the Bunker Hill Drive entrance to the development. Although Southridge residents had sometimes expressed to city officials their desire for municipal maintenance of the two streets, they did not make formal demand on the defendants until 1973. Finally, we cannot view Southridge’s willingness to have a polling place located in its community center as an unequivocal expression of intent to dedicate the streets to the public use.

Nor do we find that the public or the City of St. George ever accepted Southridge’s purported common law dedication offers. The very limited public use of Echoridge Lane and Bunker Hill Drive, as enumerated above, is clearly insufficient to signify the public’s acceptance of the dedication of the streets.

The City of St. George, at the time of the annexation, passed an ordinance accepting the developers’ dedication of Villaridge Court.

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Bluebook (online)
534 S.W.2d 559, 1976 Mo. App. LEXIS 1944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nowotny-v-ryan-moctapp-1976.