492 S.W.3d 159
Mo.2016Background
- Avery Contracting bought property in 2013 that abutted Route M; a 1996 condemnation to MHTC (by the Raebel Trust) had restricted or prohibited direct access from that parcel to Route M.
- Avery sued under Mo. Rev. Stat. § 228.342 seeking a 40-foot private way of necessity following Creekstone Drive and terminating at Moss Hollow Road (crossing property owned by Creekstone HOA members and by MHTC).
- Creekstone Drive is shown on a recorded subdivision plat that references a declaration creating an owner’s association; the petition expressly sought application of the private-way statutes to that road.
- Defendants moved to dismiss under Rule 55.27 arguing, among other things, that § 228.341 bars private-way claims over roads in recorded plats referencing an owner’s association and that § 228.342 does not authorize condemnation across public (state) land.
- The trial court dismissed Avery’s petition without prejudice; the Missouri Supreme Court treated the dismissal as effectively terminating the claimed relief and reviewed the dismissal de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 228.341 permits establishing a private way over Creekstone Drive (a road in a recorded plat referencing an owner’s association) | Avery: statutes for private ways apply and authorize a private road following Creekstone Drive | Creekstone parties: § 228.341 expressly excludes roads created or included in recorded plats referencing an owner’s association | Held: Dismissed — § 228.341 bars application of §§ 228.341–228.374 to such roads; Avery’s claim fails as a matter of law |
| Whether § 228.342 authorizes a private way of necessity across property owned by a public entity (MHTC) | Avery: MHTC cannot completely prohibit access; the condemnation language was ambiguous and MHTC must provide limited access | MHTC: § 228.342 does not apply to public lands; Avery took property subject to prior condemnation restrictions | Held: Dismissed — § 228.342 does not authorize private condemnation of public land; proceeding must be strictly construed and statute contains no authorization to take public property |
| Whether dismissal without prejudice is appealable here | Avery: appealable because relief is effectively terminated | Defendants: dismissal without prejudice ordinarily not final | Held: Appeal allowed — practical effect terminated the specific litigation; Court proceeded to merits |
| Standard for construing private-way statutes | Avery: broad application to secure access | Defendants: strict construction, limiting delegation of condemnation power | Held: Statutes construed strictly; scope limited to what is expressly conferred or necessarily implied |
Key Cases Cited
- Conway v. CitiMortgage, Inc., 438 S.W.3d 410 (Mo. banc 2014) (standard of review for Rule 55.27 dismissal)
- Dujakovich v. Carnahan, 370 S.W.3d 574 (Mo. banc 2012) (affirmance if any ground in motion to dismiss supports judgment)
- Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1 (Mo. banc 1997) (dismissal without prejudice can be appealable when it practically terminates litigation)
- Templemire v. W & M Welding, Inc., 433 S.W.3d 371 (Mo. banc 2014) (statutory construction: strict; presume nothing not expressed)
- Anderson v. Mantel, 49 S.W.3d 760 (Mo. App. 2001) (proceedings to acquire private ways are against common law and must be strictly construed)
- Jobe v. Weyerhaeuser Co., 684 P.2d 719 (Wash. App. 1984) (legislation authorizing private ways of necessity must be strictly construed because it delegates condemnation power)