Short v. Southern Union Co.
2012 Mo. App. LEXIS 484
Mo. Ct. App.2012Background
- Short appeals a directed verdict in favor of Southern Union and Stadium Industrial.
- Property is about 3.72 acres, landlocked with no direct access to a public road.
- Tract C is a private road providing access to Stadium Industrial Park; Property has no right to use it.
- Short used Tract C to access his Property for about a year after purchase.
- Short petitions for establishment of a private road under §228.342 for strict necessity to access a public road; trial court granted directed verdict.
- On remand, the court must determine the correct scope of “strict necessity” and proper road location under §228.342.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Definition of strict necessity under §228.342 | Short: strict necessity does not require proven lawful use. | Stadium/ Southern Union: requires lawful use proof. | Court erred; strict necessity includes lack of access and ability to use for lawful uses; remand. |
| Whether lack of access alone suffices or requires future lawful use | Short sufficient to show lack of access. | Defendants: must show contemplated lawful use. | Both aspects may apply; interpretation favors Short. |
| Effect of statutory construction on statute of limitations | Strict necessity is ongoing; limitations tolls. | No tolling under current reading. | Statute of limitations not an independent obstacle on remand. |
| Procedure for locating the private road after establishing strict necessity | Location decided to minimize damage; two alternatives proposed. | Court determines location with minimal burden. | Remand to determine interlocutory order and road location consistent with §228.342. |
Key Cases Cited
- Blue Pool Farms, LLC v. Basler, 239 S.W.3d 687 (Mo.App. E.D.2007) (defines strict necessity as lack of enforceable access.)
- Beery v. Shinkle, 193 S.W.3d 435 (Mo.App. W.D.2006) (easement affects strict necessity; no enforceable right.)
- Kirkpatrick v. Webb, 58 S.W.3d 903 (Mo.App. S.D.2001) (defines strict necessity as lack of practical lawful access.)
- Reid v. Jones, 594 S.W.2d 339 (Mo.App. W.D.1980) (allowed widening to permit lawful use; informs construction.)
- Hill v. Kennoy, Inc., 522 S.W.2d 775 (Mo. banc 1975) (strict necessity for access where none exists; no convenient route.)