Chapter 228 Establishment and Vacation of Roads
228.180 - Condemnation of private property for public road — survey — claims for damages — hearings — jury trial, when.
1.The right of eminent domain is vested in the several counties of the state to condemn private property for public road purpose, including any land, earth, stone, timber, rock quarries or gravel pits necessary in establishing, building, grading, repairing or draining such roads, or in building any bridges, abutments or fills thereon.
2.If the county commission be of the opinion that a public necessity exists for the establishment of a public road, or for the taking of any land or property for such purposes, it shall by an order of record so declare, and shall direct the county highway engineer within fifteen days thereafter to survey, mark out and describe said road, or the land or material to be taken, or both, and to prepare a map thereof, showing the location, courses and distances, and the lands across or upon which the proposed public road will run, or the area, dimensions, description and location of any other property to be taken for such purposes, or both, and the county highway engineer shall file the map and a report of his proceedings in the premises in the office of the county clerk.Thereupon the county commission shall cause to be published in some newspaper of general circulation in the county, once each week for three consecutive weeks, a notice giving the width, beginning, termination, courses and distances and sections and subdivisions of the land over which the proposed road is to be established, or the location, area, dimensions and descriptions of any other land or property to be taken, or both, and that such land or property is sought to be taken for public use for road or bridge purposes.
3.Claims for damages for the taking of any of such land or property may be filed in the county clerk's office by the owner of the property or by the conservators of disabled persons or minors owning the property, within twenty days after the last day of publication.If any claim for damages be filed, the same shall be heard on the first day of any regular or adjourned term of the county commission after the expiration of such twenty days.
4.If the county commission and the land or property owner be unable to agree on the amount of the damages, or if persons owning land or property sought to be taken or the conservator of any disabled person or minor owning such property shall fail to file a claim for damages, the county commission shall make an order reciting such fact, or facts, as the case may be, and cause a copy of same to be delivered to the judge of the circuit court of that county, and a transcript of the record and the original files in such cause shall be transmitted by the county clerk to the circuit clerk of the county.Upon receipt of the copy of the order of the county commission by the circuit judge, the circuit court, or the judge thereof in vacation, shall make an order setting the cause for hearing within thirty days, and if the order fixing the date of the hearing be made by the judge in vacation, it shall be filed in the office of the circuit clerk and the clerk shall cause copies of the orders to be served on owners of the property or material to be taken, and also the conservators of disabled persons or minors having any interest in such property or material, not less than ten days before the date of the hearing.
5.The court, or judge in vacation, shall cause to be impaneled a jury of six residents of the county not interested in the matter or of kin to any member of the county commission, or to any landowner in interest.The jury shall view the land, or other property, proposed to be taken, and shall hear the evidence and determine the question of damages under the direction of the court or judge.Five of the jury concurring may return a verdict, and in case of a disagreement another jury may be impaneled.
6.The public necessity for taking the property shall in no wise be inquired into by the circuit court, and the judgment of the circuit court, or judge thereof in vacation, in the cause shall not be reviewed on appeal or by writ of error.
228.080 - Order to establish road, when.
If it shall appear from the engineer's report that the right-of-way has been secured, and needs therefor filed, or that the damages claimed do not exceed the amount offered by the commission or deposited by the petitioners, or both, the commission shall order the road established.
228.090 - Relinquishments, deeds, plats to be filed and recorded.
The county highway engineer shall file all relinquishments, deeds and plats of said road in the office of the county clerk, who shall preserve them together with the order of the commission establishing the road as public records in a book to be provided for that purpose.All such deeds shall be filed and recorded in the office of the recorder of deeds.
228.190 - Roads legally established, when — deemed abandoned, when — roads deemed public county roads, when.
1.All roads in this state that have been established by any order of the county commission, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all 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.
2.From and after January 1, 1990, any road in any county that has been identified as a county road for which the county receives allocations of county aid road trust funds from or through the department of transportation for a period of at least five years shall be conclusively deemed to be a public county road without further proof of the status of the road as a public road.No such public road shall be abandoned or vacated except through the actions of the county commission declaring such road vacated after public hearing, or through the process set out in section 228.110.
3.In any litigation where the subject of a public road is at issue under this section, an exact location of the road is not required to be proven.Once the public road is determined to exist, the judge may order a survey to be conducted to determine the exact location of the public road and charge the costs of the survey to the party who asserted that the public road exists.
228.362 - Use of road allowed, when — damages for use allowed, when — abandonment of proceedings, effect.
If any party has filed exceptions to the commissioners' report pursuant to section 228.358, the plaintiffs shall be entitled to use of the private road before judgment is entered and becomes final and appeals, if any, have been exhausted, if the plaintiffs shall have given an appeal bond in such amount as the circuit court deems sufficient to pay the probable damages that plaintiffs will owe plus costs.Otherwise, the plaintiffs shall not be entitled to use of the private road until judgment is entered and becomes final and appeals, if any, have been exhausted and the plaintiffs have satisfied the damage award contained in the judgment.The plaintiffs may voluntarily abandon the proceedings and dismiss the petition at any time prior to satisfaction of the damage award, and if the plaintiffs do not satisfy the damage award within sixty days following the date upon which the judgment becomes final and appeals, if any, have been exhausted, then the proceedings shall be deemed abandoned.In either instance, the circuit court shall retain jurisdiction solely to enter an order vacating the judgment, dismissing the petition, and ordering disposition of the bond, if any.No execution shall issue on the damage award.If the plaintiffs shall have used the private road before judgment has become final and appeals, if any, have been exhausted, and the private road is not, for any reason, established according to the terms of sections 228.342 to 228.368 after final judgment and appeals, the plaintiffs and their sureties shall be liable on their bond for all damages and costs occasioned by such use of the private road.If the petition is voluntarily dismissed after the filing of the commissioners' report or is deemed abandoned, the plaintiffs and the successors and assigns to the real property which was the subject of the petition shall be barred for a period of seven years from the date of the abandonment or dismissal from filing another petition under sections 228.342 to 228.368, for the establishment or widening of a private road over the same or any part of the real property over which the private road was sought in the prior petition.
228.342 - Establishment or widening of private road — strict necessity defined — who may petition.
A private road may be established or widened in favor of any owner or owners of real property for which there is no access, or insufficiently wide access, from such property to a public road if the private road sought to be established or widened is a way of strict necessity.As used in this section, the term "strict necessity" shall include the necessity to establish or widen a private road in order to utilize the property for the uses permitted by law.Any petition for the establishment or widening of a private road shall be filed and the proceeding shall be conducted in the circuit court of the county where the proposed road is to be located.The owners of the real property over which the proposed private road shall pass shall be named as defendants.
228.352 - Nonjury hearing, purpose — court order, issued when.
After the time for filing the answer to the petition has expired and after the parties have had a reasonable time for discovery, the court shall conduct a nonjury hearing during which the parties may submit evidence pertaining to the allegations of the petition and to the proposed location of the private road.If the court determines upon a petition to establish a private road that there is access to a public road or that the way sought is not a way of strict necessity, then the petition shall be dismissed.If the court determines that there is no access to a public road and the way sought is a way of strict necessity, then it shall further determine the location of a private road that is situated so as to do as little damage or injury and cause as little inconvenience as practicable to the defendants.If the court determines upon a petition to widen a private road that there is not sufficiently wide access to utilize the property for the uses permitted by law, then it shall further determine the location at the side or sides of the existing private road of the widening so as to do as little damage or injury and cause as little inconvenience as practicable to the defendants.The court shall then enter an interlocutory order for the establishment or widening of the private road at the location determined by the court.As part of such interlocutory order, the court shall also designate which party or parties shall be responsible for the construction, maintenance and repair of the private road and shall set out the nature and scope of the parties' rights to the use and the enjoyment of the private road.However, the court shall not order the defendants to share responsibility for the construction, maintenance or repair of the private road if, under the court order, the defendants are not granted any rights to the use and enjoyment of the private road, or if any such rights are granted and the defendants waive such rights.
228.140 - Roads on county lines established, how.
1.The county commissions of the several counties in this state shall have authority to establish highways on the boundary lines of their respective counties in the same manner as provided in sections 228.020 to 228.130, and when so established such roads shall not be less than forty feet wide.Each county shall provide one-half of the cost of establishing and keeping in repair such road.
2.The proceedings may be brought in any one of the counties concerned, but the commissioners of the county commission of each of the counties shall sit as one commission, and a majority of the commissioners shall decide all questions, and all matters therein shall be heard and determined in the county where the proceedings are first instituted.A certified copy of any final judgment establishing such road and the report of the county highway engineer thereon shall be filed in the office of the clerk of the county commission of each county, and spread of record therein.The commission having jurisdiction of the proceedings shall set all hearings for such days as may not interfere with like proceedings in the other counties concerned.
228.040 - County commission required to open road, when.
When the petition required by section 228.020 is presented, and upon proof of notice having been given as required in section 228.030, if no remonstrance is filed and if the petitioners give the right-of-way for the proposed road or pay into the county treasury an amount of money equal to the whole amount of damages claimed by landowners through whose land the proposed road would run, the county commission may open said road if the commission determines that it is in the public interest of the county, and thereupon the commission shall proceed as in sections 228.010 to 228.190 provided in cases where upon a hearing the commission finds* it necessary to establish a road.
228.348 - Service of process, how issued — rules of civil procedure to apply, when.
Upon the filing of the petition, service of process shall be issued as provided in the rules of civil procedure.Thereafter, the rules of civil procedure shall apply when not inconsistent with the statutory proceedings set out in sections 228.342 to 228.368.
228.358 - Report of commissioners, exceptions to, filed when — jury impaneled, when — judgment, contents.
Within ten days after notification of the commissioners' report, either party may file exceptions to the report and assessment of damages.If no exceptions are filed, the court shall enter a judgment establishing or widening the private road and assessing the damages as set forth in the commissioners' report to be paid by the plaintiffs to the defendants.If either party files exceptions, the court shall impanel a jury and conduct a trial to determine the amount of damages to be paid by the plaintiffs to the defendants.Thereafter, the court shall enter a judgment establishing or widening the private road and assessing the damages as set forth in the jury's verdict, and the provisions of the interlocutory order as provided in section 228.352 shall be included in such judgment.The private road so established or widened shall be a permanent easement appurtenant to the plaintiffs' real property.
228.050 - Remonstrances — hearing — findings.
1.If a remonstrance is presented signed by twelve or more persons residing in the municipal township or townships through which it is proposed to establish such road, three of whom which reside in the immediate neighborhood, the county commission shall hear such witnesses as the respective parties may produce in regard to the public necessity, practicability and probable damages, if any claimed, to the owner of the land through which it is proposed to establish such road, and the expense of establishing and building the same, including bridges and culverts therein.
2.If the commission upon such hearing shall find that the facts in the case do not justify the establishing of such road, the proceedings shall be dismissed.If the commission shall find that the facts do justify the establishing of such road, either at the expense of the county, or of the petitioners, or both, it shall make an order accordingly.
228.150 - Districting and repair of new roads — owner of land given time to yield possession — penalty for refusal.
1.When a new road has been opened, it shall be districted and kept in repair as other public roads.
2.The county commission or circuit court, as the case may be, at the time of giving judgment for the establishment of the road, shall specify the time when possession shall be given by the owner, allowing the owner of the land a reasonable time, not exceeding six months, to erect fences, if any are required, and also time to gather growing crops, if any are growing at the time on the premises, which time shall be stated in the judgment.Any landowner who shall fail or refuse to open said road within the time specified in the judgment shall be deemed guilty of obstructing a public highway and punished accordingly.
228.374 - Amending or modifying agreements or plans of maintenance by recorded agreement, when.
1.A prior agreement or court order establishing a plan of maintenance may be amended or modified and may be restated at any time by a recorded agreement signed by all the homeowners or other benefitted owners.
2.No court proceeding under section 228.369 to amend, modify, or restate a plan of maintenance may be filed sooner than seven years from the entry of a prior order, except upon a prima facie showing that the real property benefitted by the private road has been developed or divided in a manner rendering the plan of maintenance obsolete or showing that the existing apportionment of the use and benefit to residences benefitted by the access to the private road is no longer equitable.
228.160 - Roads may be enclosed and route changed, when.
Any person wishing to cultivate or enclose land through which any road may run may petition the county commission, first giving notice, as in the case of new roads, for permission to turn such road on his own land or on the land of any other person consenting thereto, at his own expense.The commission shall thereupon cause the county highway engineer to view the same and report the practicability of the proposed change and distances and situation of the ground, and proposed changes, at the first term of the commission thereafter; and if upon the report the commission be satisfied that the public will not be in any manner injured thereby, or said road lengthened or the grade thereof increased, or the road thrown on rougher land, it shall order such a change, and upon satisfactory proof of such road being opened in such manner as to be equally convenient to travelers, the commission shall make an order vacating so much of the former road as lies between the different points of intersections, and cause the report thereof to be recorded.
228.060 - Survey of road by county highway engineer, when — report.
If the county commission finds it necessary to establish such road, either at the expense of the county or wholly or partly at the expense of the petitioners, and the petitioners pay into the county treasury, on or before a time to be fixed by such commission, the probable amount of damages or a sum to be fixed by the commission, to the use of the owners of such lands, the county commission, by order, shall direct the county highway engineer, within sixty days thereafter, to view, mark out and survey such road, take all relinquishments of the right-of-way of those who will give the same, and take the names of all owners of land through which said road may run who have not given or will not give the right-of-way, and the amount of damages claimed by each one separately, together with a legal description of the lands of each owner sought to be taken, and also the engineer's estimate of the cost of the bridges, culverts, and grading that may be necessary upon such road.The engineer shall report his proceedings in the premises, together with his survey and plat of said road to the county commission.
228.368 - Costs.
The costs of the proceedings to establish or widen a private road incurred up to and including the filing of the commissioners' report shall be paid by the plaintiff; and the court, as to any costs incurred in proceedings subsequent thereto, including the costs of the jury trial, may make such order as in its discretion may be deemed just, including, in the case of a proceeding to obtain a maintenance order, assessing the costs to all benefitted homeowners.
228.365 - Change of judge, venue.
Any application for change of judge must be filed within thirty days after the answer to the petition is due or within thirty days after designation of the judge who will conduct the nonjury hearing for establishment or widening of the private road, whichever date is later.Any application for change of venue may only be filed within ten days after exceptions to the commissioners' report are filed.
228.369 - Maintenance, multiple user roads without written agreement, plan of maintenance by court — apportionment of costs.
1.For any private road subject to the use of more than one homeowner, in the absence of a prior order or written agreement for the maintenance of the private road, including covenants contained in deeds or state or local permits providing for the maintenance of a private road, when adjoining homeowners who are benefitted by the use of an abutting private road, or homeowners who have an easement to use a private road, collectively owners or benefitted owners are unable to agree in writing upon a plan of maintenance for the maintenance, repair, or improvement of the private road and including the assessment and apportionment of costs for the plan of maintenance, one or more of the owners may petition the circuit court for an order establishing a plan of maintenance.
2.The cost of a plan of maintenance for a private road shall be apportioned among the owners of residences abutting the private road and holders of easements to use the private road, with the cost apportioned commensurate with the use and benefit to residences benefitted by the access, as mutually agreed by the benefitted homeowners or as ordered by the court with such method of apportionment as agreed by the homeowners or ordered by the court, including, but not limited to, equal division, or proportionate to the residential assessed value, or to front footage, or to usage or benefit.
3.The court may implement the same procedures to order and subsequently determine a plan of maintenance for a private road as provided in this chapter for establishing or widening a private road, including the appointment and compensation of disinterested commissioners to determine the plan and the apportionment of costs.
4.Where the homeowners who are benefitted by the private road are not able to agree upon the designation of a supervisor to complete the plan of maintenance, the commissioners appointed by the court shall designate a supervisor who shall be compensated for his or her services in the same manner as the commissioners.
5.Any agreement executed by all the homeowners, or final order approving, a plan of maintenance for a private road shall be recorded with the county recorder of deeds.
6.One or more adjoining homeowners or holders of any easement to use a private road may bring an action to enforce the plan of maintenance for a private road, whether as mutually agreed or as ordered by the court.
228.030 - Notice of application for road.
Notice of such intended application shall be given by printed or written handbills put up in three or more public places in such municipal township or townships, one of which shall be put up at the proposed beginning, and one at the proposed termination of said road, at least twenty days before the first day of a regular or adjourned term of the county commission to which the petition is to be presented, which notice shall apply to and be binding upon all persons and corporations whatsoever having any interest in or title to the lands, or any part thereof, over which said proposed road may run.
228.130 - No revocation of order establishing or vacating road — amendment of order.
The county commission shall not revoke or set aside any order establishing or vacating any public road, nor shall a petition to vacate or reestablish such road be entertained by such county commission for a period of one year from the time of entering the order; except that the county commission may amend any such order where necessary to carry out the purposes of this law.
228.120 - Record of proceedings — judicial review.
1.Upon the request and at the expense of any petitioners or remonstrators, a stenographic record shall be made of all proceedings before the county commission upon any petition to establish or vacate any public road.
2.Any order of the county commission establishing or vacating a public road shall be subject to judicial review to the same extent and in the manner prescribed by chapter 536.
228.020 - Petition for establishing road.
Applications for the establishment of all public roads, except state roads, shall be made by petition to the county commission.Such petition shall be signed by at least twelve registered voters of the municipal township or townships through which such proposed road may run, three of whom shall be of the immediate neighborhood, and shall specify the proposed beginning, course and termination thereof, and shall be accompanied by the names of all persons owning land through which such road shall run, with the amount of damages, if any, claimed by them, so far as can be ascertained, and also the names of those who are willing to give the right-of-way for such proposed road, except that if the proposed road begins or terminates on, or runs along a boundary between the county wherein such petition is filed and an adjoining county, any or all of the petitioners may be registered voters of such adjoining county, and of the municipal township or townships thereof through which the proposed road may run, or in which the proposed road may begin or terminate.
228.100 - Condemnation proceedings, when.
If it appears that any person through whose lands such proposed road should run has failed or refused to relinquish the right-of-way, or is not willing to take the amount of damages offered him by the commission or petitioners, or both, or in case any such owner is incapable of contracting or is a nonresident of this state, and it further appears to the county commission that the proposed road is of such great public utility as to warrant its establishment, the county commission shall order the road established and shall direct the prosecuting attorney of the county to institute proceedings in the name of the county in the circuit court for the purpose of condemning such lands.Such proceedings shall be instituted and conducted by said prosecuting attorney under the provisions of chapter 523.
228.355 - Commissioners, how appointed — duties — compensation.
When an order establishing or widening a private road is entered according to section 228.352, the court shall appoint three disinterested citizens of the county where the private road is to be located as commissioners to view the location of the private road and the real property affected and to assess damages to the defendants.Before proceeding to discharge their duties, the commissioners shall take and subscribe an oath, in writing, to be filed with the clerk of the court, to discharge their duties honestly, faithfully and impartially under the order of the court.The commissioners shall notify the parties in writing that on a day specified in the notice the commissioners will view the affected real property.Such notice shall be given at least ten days prior to the day specified for viewing the real property, and the notice shall be served in hand or by registered mail to the last known address of the party to be served or to that party's attorney.After the commissioners view the location of the private road and the real property affected, they shall report to the court and make an assessment of the damages sustained by each defendant.Upon the filing of such report of the commissioners, the clerk of the court shall immediately notify the parties of the filing of the report.The commissioners shall be allowed reasonable compensation for their services to be set by the court and to be taxed as costs.
228.345 - Maximum width — contents of petition.
The proposed private road as established or widened shall not exceed forty feet in width and shall be situated so as to do as little damage or injury and cause as little inconvenience as practicable to the owner or owners of the real property over which the private road shall pass.The petition shall contain a description of the location of the proposed road, including the width and points of beginning and ending.
228.341 - Private road defined.
For purposes of sections 228.341 to 228.374, "private road" with regard to a proceeding to obtain a maintenance order means any private road established under this chapter or any easement of access, regardless of how created, which provides a means of ingress and egress by motor vehicle for any owner or owners of residences from such homes to a public road.A private road does not include any road owned by the United States or any agency or instrumentality thereof, or the state of Missouri, or any county, municipality, political subdivision, special district, instrumentality, or agency of the state of Missouri.Nothing in sections 228.341 to 228.374 shall be deemed to apply to any road created by or included in any recorded plat referencing or referenced in an indenture or declaration creating an owner's association, regardless of whether such road is designated as a common element.Nothing in sections 228.341 to 228.374 shall be deemed to apply to any land or property owned or operated by any railroad regulated by the Federal Railroad Administration.
228.010 - Definitions.
The words "established" and "establishing", as used in sections 228.010 to 228.190 in relation to public roads, shall be held to embrace the locating, relocating, changing or widening of roads, and the word "road" shall include bridges and culverts.
228.110 - Roads may be vacated, how.
1.Any twelve residents of the township or townships through which a road runs may make application for the vacation of any such road or part of the same as useless, and the repairing of the same an unreasonable burden upon the district or districts.The petition shall be publicly read on the first day of the term at which it is presented, and the matter continued without further proceedings until the next term.
2.Notice of the filing of such petition and of the road sought to be vacated shall be posted up in not less than three public places in such township or townships, at least twenty days before the first day of the next term of the commission, and a copy of the same shall be personally served on all the persons residing in the district whose lands are crossed or touched by the road proposed to be vacated in the same manner as other notices are required to be served by law; and at the next regular term the same shall again be publicly read on the first day thereof.
3.If no remonstrance is made thereto in writing, signed by at least twelve residents of the township, the commission may proceed to vacate such road, or any part thereof, at the cost of the petitioners; but if a remonstrance thereto in writing, signed by at least twelve residents of such township or townships, is filed, and the commission after considering the same shall decide that it is just to vacate such road, or any part thereof, against the vacation of which the remonstrance was filed, the costs shall be paid by the parties remonstrating, and the original costs, and damages for opening such vacated road shall be paid by the petitioners to those who paid the same, except that if five years have elapsed since the original opening of the same no such reimbursement shall be made.
4.Notwithstanding any other provision of this section to the contrary, in any county with a charter form of government, any twenty-five residents of the county through which a road subject to this section runs and who reside on any portion of such road or on another road that intersects such road and within one mile of the right-of-way to be vacated, may apply for the vacation of such road or part of such road as no longer serving the public health, safety, and welfare.The county may, by order or ordinance, provide for notice and hearing of such petitions and for filing and hearing remonstrances against them.