Monthly Archives: July 2009

Holding a city to its promise


Most of us want to respect the government, especially local government. We expect local government to keep its promises.

But the law relating to cities, towns and villages (which are all lumped together in the category “municipal corporations” or “municipalities”) cuts them some slack. A city council, board of aldermen or village board can adopt an ordinance and lawfully repeal it later. Often voters elect new representatives because they promise to vote to change or repeal a previous ordinance.

The adoption of ordinances is how the city’s governing body exercises its legislative powers. A city should have the ability to correct mistakes or adapt to changing conditions for the benefit of the public.

But a city should be held to its agreement, said Missouri Court of Appeals for the Western District in its July 21, 2009 opinion in Kindred v. City of Smithville, even though 40 years had passed since the agreement was made and lots of things had changed. Read the rest of this entry

A warranty deed doesn’t always convey everything


Lawyers are taught in law school that ownership of land carries with it a bundle of rights. A warranty deed conveys “fee simple absolute” title, which is the full bundle of rights. A person who obtains title by a warranty deed gets 100% of the rights associated with the piece of land described in the deed, other than what is excepted by the language of the deed, such as recorded restrictions and easements.

But Missouri courts have recognized a hole in this rule: some rights associated with real estate are personal property, not real property, even though the rights have to do with real estate. The warranty deed does not necessarily convey these rights, even though the warranty deed says that it is conveying all “rights, privileges, interests and appurtenances” that go with the land described.

Unless the special rights are specifically identified in the deed or another document of assignment, a court can require a trial to determine whether the person who signed the deed intended to convey them. Most lawyers don’t know about this quirk, and it can bite their clients real hard. Read the rest of this entry

Federally-managed Ozarks rivers require protection, even abstinence


How and how much protection to give the Jacks Fork, the Current and the Buffalo rivers is much on the minds of people in and around the Ozarks this summer. Those of us whose memories of these treasures span several decades are sad about the effects of overuse and unwise use.

As the National Park Service (NPS) gathers public comments in formal planning meetings and in writing, those united in loving these rivers have diverse and sometimes incompatible desires for how these rivers and the land along them will be managed. With long stretches of these rivers owned by the federal government and managed by the NPS (which also manages easements along the rivers and regulates outfitters), it’s appropriate that the NPS find out how citizens want these shared resources to be managed.

As individuals, we each have our own ideas about our relationship with the natural world and different comfort levels with sharing, and these ideas change somewhat over time, in response to our experiences, our scientific knowledge, our age-appropriate preferences in recreation, and even our financial situations.

Those who formulate policies have to formulate policies that will probably not make any of the various stakeholder groups happy, but will assure that the members of these groups will keep on using the resources so that federal funding will be maintained.

Ozark National Scenic Riverways General Management Plan

For the Jacks Fork and Current rivers, which are in the Ozark National Scenic Riverways, the NPS has prepared a document called “Preliminary Alternatives” which helpfully sets out four alternatives for the management of these rivers and a zoning system that would protect ecological systems and human experiences by limiting uses (for example, limiting horse access to designated trials and fords and limiting the size of boat motors in particular stretches of the rivers during specified seasons).

I urge you to study the Preliminary Alternatives document carefully before commenting. You can read a summary and the entire Preliminary Alternatives document and make your comment by going to this page.

For the Ozark National Scenic Riverways General Management Plan, the official public comment period remains open until July 31, 2009, and some time after that the NPS will select one of the alternatives, or some combination of them.

Buffalo National River General Management Plan

For the Buffalo River in Arkansas, which is managed by the National Park Service as the Buffalo National River, the planning process is in the early stages. This summer, the NPS has been holding public meetings to gather comments before preparing a document that will probably resemble the Ozark National Scenic Riverways’ Preliminary Alternatives.

For this stage in the planning process, the comment period closes August 31, 2009. The newsletter describing the planning process, including a schedule, can be found here.

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On the Fourth of July, I went floating on a river that is within 50 miles of the largest city in the Ozarks. The river was nice. I saw only two canoes other than the ones in my group. Had we been on a federally-managed river, there would have been a crowd.

With respect to the Jacks Fork, the Current, the Eleven Point, and the Buffalo, the best policy–and the least expensive–might be abstinence or at least restraint.  Instead of floating four times per year, go twice. Send your outfitter the money that you would have spent.

Water + animosity = punitive damages

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Bad fences make bad neighbors, especially if the neighbors start retaliating. Then it escalates.  They lawyer-up and make things even worse.

Greg and Lisa lived next to Tim on large tracts in a suburbanizing area southeast of Kansas City. They talked about building a fence on their common boundary, where a ditch looped from Greg’s and Lisa’s property onto Tim’s for 50 feet, then came back to Greg’s and Lisa’s property.

Tim put up “no trespassing” signs after seeing Greg and his son walking along the property line. “Somebody” shot the sign with a shotgun Read the rest of this entry