State ex rel. Perkins v. Taylor

666 S.W.2d 853, 1984 Mo. App. LEXIS 3543
CourtMissouri Court of Appeals
DecidedJanuary 27, 1984
DocketNo. 13128
StatusPublished
Cited by10 cases

This text of 666 S.W.2d 853 (State ex rel. Perkins v. Taylor) 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
State ex rel. Perkins v. Taylor, 666 S.W.2d 853, 1984 Mo. App. LEXIS 3543 (Mo. Ct. App. 1984).

Opinion

MAUS, Judge.

The defendants own a farm of 320 acres that lies along the Eleven Point River in Oregon County. The farm is located between a community known as Wilderness and the county seat of Alton. A dirt and gravel road extends in a southwesterly direction from Wilderness, enters the defendants’ farm from the north and runs to the bank of the river. In 1981 the defendants built a gate and obstructed the road. The petition in this case alleges that road was a public road by reason of § 228.190. The petition sought a declaration to that effect and an injunction compelling the removal of the obstruction and enjoining the defendants from interfering with the public use of the road. As the defendants have assumed the capacity of the plaintiff, § 56.060, that question will not be considered by this court. The trial court entered judgment for the defendants. The plaintiff appeals.

While the same must be gleaned from the testimony of several witnesses, many of the ultimate facts are undisputed. A summary of the evidence follows. In the early days, as far back as the 1920’s, a [855]*855country road ran from Wilderness to Alton. It crossed the defendants’ farm substantially along its present route. The road crossed the river at the McFry Ford. It then meandered to Alton. The origin of the road was unexplained except by usage and maintenance. There was no evidence of a formal dedication by deed or otherwise. For many years it apparently was the principal road from Wilderness to Alton. One witness crossed the ford in a vehicle as late as 25 years ago. Another witness, 82 years old, used the road many times driving a “Model T” to Alton. In more recent times, it was crossed by people on foot, horseback and tractor. There was evidence that county maintenance extended across the ford as recently as 35 years ago. However, in more recent years, the public use of the road has been primarily for launching boats, swimming and other recreational activities on the river.

There was an abundance of evidence the road was established and maintained by public money and labor. Two witnesses recalled that residents did “work out” their poll taxes by labor on the road. Another testified to maintenance by public money for five or six years commencing in 1962. Another testified to such maintenance in 1975. A former judge of the county court, before assuming that office, had worked for the county from 1947 to 1972. He stated that during that period he regularly maintained the road with the county motor grader.

About 1940, trees were felled across a portion of the road on the defendants’ farm. Defendant Frankie Taylor testified her father “cut the timber and they left the tree tops anywhere they fell.” The road was thereafter rerouted by a loop that extended around the obstructed area. The loop, for approximately half of its distance, utilized a road that extended to the house and improvements on the defendants’ farm. It then turned back and rejoined the original route. However, in the early 1960’s, at the request of the then tenant of the premises to move the traffic away from his hog operation, the old roadbed was reopened by the county motor grader and that portion of the road restored to its original route. The trial court found the date of this occurrence to be 1964. Thereafter, the road was used by the public and maintained by public labor or money along the original route until it was obstructed by the defendants in 1981.

Defendant Frankie Taylor testified she was raised on the. farm. She owned it after the death of her father in 1944. She had lived there from about 1927 until 1938. She again lived there from 1947 to 1959. After then leaving Oregon County, she moved back to that county in 1975, although she did not live on the farm. She denied the road was a public road. She contended that in recent years it had been used with her permission. But, she did not question the existence of the road nor the essential facts concerning its use. When asked if the road had been traveled and used for many years, she replied, “Well, it had to be traveled. That was the only way we had to get across the river.” When asked if she granted permission, she replied, “They always asked, my friends did; the rest of them just took over.” She admitted that former County Judge Deth-row had for over 25 years occasionally graded the road. In speaking of the period after 1959, she said, “[TJhat’s when they really took over and used it more for recreation than necessity.”

As stated, the trial court entered judgment for the defendants. That judgment is to be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The applicable portion of § 228.190 provides: “[AJ11 roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same.” The standards of use and maintenance to meet [856]*856the criteria of § 228.190 are well established. They have been reviewed and applied in many cases. Seaton v. Weir, 633 S.W.2d 212 (Mo.App.1982); Hedges v. County Court for Ray County, 581 S.W.2d 73 (Mo.App.1979); Wilson v. Sherman, 573 S.W.2d 456 (Mo.App.1978). The use need not be constant. Wilson v. Sherman, supra. Nor is it necessary to prove a continuous maintenance by public money or labor for each and every year during the ten-year period. It is sufficient to show that such maintenance began and continued from time to time- during the ten-year period as reasonably might be considered necessary and expedient by those in authority, and that such maintenance was sufficient to keep the road in condition for public travel. Arrington v. Loehr, 619 S.W.2d 888 (Mo.App.1979). The maintenance required is at least to some degree dependent upon the type of use made of the road. Wilson v. Sherman, supra.

It is sufficient to observe that the uncon-tradicted evidence in this case demonstrated greater use and expenditure of public money or labor than in such cases as Sea-ton v. Weir, supra; State ex rel. Reynolds County v. Riden, 621 S.W.2d 366 (Mo.App. 1981); Wilson v. Sherman, supra. The trial court in one conclusion of law recognized this evidence. In that conclusion it declared: “The Court finds that the roadway known as County Road No. 75 was a public road established prior to 1940 by public user and the expenditure of public money or labor for a period of ten years, as provided in Missouri Revised Statutes, Section 228.190.”

“A road once installed as a public way, the right of the public to use it becomes vested and, absent vacation or abandonment [228.190], cannot be divested thereafter.” Osburn v. Supreme Exp. & Transfer Co., 590 S.W.2d 360, 366 (Mo. App.1979).

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Bluebook (online)
666 S.W.2d 853, 1984 Mo. App. LEXIS 3543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-perkins-v-taylor-moctapp-1984.