Szombathy v. Ferguson-Florissant Reorganized School District R-2

675 S.W.2d 24, 19 Educ. L. Rep. 1226, 1984 Mo. App. LEXIS 3937
CourtMissouri Court of Appeals
DecidedJune 5, 1984
DocketNo. 44705
StatusPublished
Cited by2 cases

This text of 675 S.W.2d 24 (Szombathy v. Ferguson-Florissant Reorganized School District R-2) 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
Szombathy v. Ferguson-Florissant Reorganized School District R-2, 675 S.W.2d 24, 19 Educ. L. Rep. 1226, 1984 Mo. App. LEXIS 3937 (Mo. Ct. App. 1984).

Opinion

SATZ, Judge.

Plaintiff, Louis R. Szombathy, sued to vacate a private way. Following a court tried case, the court entered its findings of fact, conclusions of law and judgment in favor of defendant, Ferguson-Florissant Reorganized School District R-2 (School District). We reverse with directions.

For clarity, we set out a diagram of the road in question and the property surrounding it.

[25]*25[[Image here]]

[26]*26In 1948, plaintiff purchased a 12 acre tract of land, bordered on the south by Airport Road, in Berkeley, Missouri. Plaintiff decided to develop this tract. In 1949, he dedicated a street, known as Alice Drive, which ran northwardly from Airport Road into his tract.

In 1953, the School District’s predecessor in interest acquired approximately 4.8 acres of plaintiff’s tract by eminent domain. The west line of this tract abutted some 290 feet along the east line of Alice Drive but stopped about 174 feet north of Airport Road. Shortly thereafter, plaintiff revoked his dedication of Alice Drive. This left the School District’s tract landlocked.

The School District then acquired the 30 foot private way in question, as a way of necessity under § 228.340 RSMo 1978. This way runs north from Airport Road, across plaintiff’s land, to the southwest corner of the 4.8 acre tract. The west line of the private way abuts what was the east line of Alice Drive. In 1954, Airport Elementary School was built on the 4.8 acre tract.

The 30 foot way was paved and provided the sole pedestrian and vehicular ingress and egress to Airport School. In 1980, exercising its rights of eminent domain, the School District acquired an approximate 2 acre tract, fronting on Airport Road and abutting the west line of the 4.8 acre tract on which Airport School was built. This 2 acre tract has 117 feet fronting on Airport Road, and the total length of the common property line between the 2 acre tract and the original 4.8 acre tract is approximately 588 feet.

The School District planned to use the 2 acre tract for a U-shaped driveway and a parking lot. Each side of the U-shaped driveway was to be 20 feet wide and serve one-way traffic — the east side of the U would be the entrance from Airport Road and the west side would be an exit on to Airport Road. The parking lot would be adjacent to and north of the driveway and would be west of the school building. Thus, school buses could enter from Airport Road, load and unload immediately adjacent to the school building, turn around on the parking lot and the exit on to Airport Road.

The School District discontinued the use of the 30 foot private way for vehicular traffic, removed the black top and built a 6 foot wide sidewalk on this 30 foot way. On the west side of the walk, trees and grass separate the walk from the east driveway to the parking lot, and grass extends from the east side of the walk to the east boundary line of the 30 foot way.

As part of the construction of Airport School, the School District had installed water and gas lines running from Airport Road underneath the 30 foot way into the school. At the place the 30 foot way meets Airport Road, St. Louis County installed an electric signal which pedestrians could activate for crossing Airport Road. Also, there is a utility pole located on Airport Road just back of the existing curb halfway between the entrance and exit drives.

Plaintiff petitioned for vacation of the 30 foot way. Plaintiff’s petition rested on § 228.440 RSMo 1978 which provides for the vacation of a private road “if the owners and occupants of [the land which was originally landlocked] shall acquire title to and possession of adjoining lands which give them convenient and practical access to a public road without passing through the lands of others ...” In denying plaintiff’s petition to vacate the 30 foot way, the trial court found:

“15. Even with the acquisition of the additional [approximate 2] acres fronting on Airport Road it is not convenient and practical for the School District to abandon the use of the 30 foot road. This road is necessary to insure a safe and accessible path for students walking to and from Airport School.
16. The abandonment of the 30 foot road would cause substantial expense to the School District. The water and gas lines would have to be relocated. The electric pedestrian signals would have to be relocated at a cost of $16,000.00 to $18,000.00. One utility pole would have to be moved at a cost of $5,000.00 to [27]*27$8,000.00. The plan of construction designed by Team Four, Inc. is based upon avoiding the removal of any utility poles or lines and the utilization of the existing curb cuts into Airport Road.
17. The access to Airport Road acquired by Defendant School District is not convenient and practical without use of the 30 foot road described in the evidence. It would be inconvenient and impractical to vacate said road.”

Plaintiff argues there is no substantial evidence to support the trial court’s finding the newly acquired 2 acre tract did not provide convenient and practical access to Airport Road without the use of the 30 foot way.1 We agree.

The parties’ research as well as ours has uncovered only one Missouri case in which the court was confronted with the proper meaning of “convenient and practical access” as used in § 228.440 RSMo 1978. See, Reading v. Chandler, 269 Mo. 589, 192 S.W. 94, 95 (banc 1917). In Reading, the court held that an alternate access which required the defendant to travel one extra mile to and from his place of business was not a convenient and practical access so as to warrant vacation of a private road of necessity. Reading is of little practical use here. However, § 228.340 RSMo 1978 defines the prerequisites for establishing a private way, the obverse of the situation here, and we find court interpretation of that statute relevant and helpful here.

Literally read, § 228.340 RSMo 1978 permits establishment of a private road only as a way of “strict necessity.” In practice, however, this “necessity” occurs when there is an absence of reasonable and practical alternative access. As stated by our Supreme Court in Evans v. Mansfield, 364 S.W.2d 548, 551 (Mo.1963):

“In order to be a defense to plaintiff’s right to obtain a private road through defendant’s property the other available way must be reasonable and practical.”

We find this “reasonable and practical” standard for establishing a way of necessity is equivalent to the “convenient and practical” standard used in § 228.440 RSMo 1978 for vacating a way originally acquired as a way of necessity. Necessity, the absence of alternative reasonable and practical access, must be proved to acquire a private way. It follows, we believe, that vacating the private way is required when the necessity is removed; i.e., with proof of the same kind of access that would have vitiated the need for the private way in the first place. This proposition has been tacitly approved by our courts which repeatedly cite the “convenient and practical” standard of Reading v. Chandler, supra, for the vacation of a private way, as an appropriate standard in actions seeking the establishment of a private way. See, e.g., Evans v. Mansfield, supra, at 551; Madison v. Sheets, 231 S.W.2d 869, 873 (Mo.App.1950).

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Bluebook (online)
675 S.W.2d 24, 19 Educ. L. Rep. 1226, 1984 Mo. App. LEXIS 3937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/szombathy-v-ferguson-florissant-reorganized-school-district-r-2-moctapp-1984.