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Who owns abandoned public roads in Missouri?


As Missouri’s public roads have been straightened, many odd kinks of roadway are left over, along with triangles of land between the old roads and the new roads. As we drive, we see these pieces of the old roads, sometimes serving as frontage roads along divided highways. In some cases, such as in McCullough v. Doss and Allen, the triangle on the west side of the new road was sold to McCullough, even though they might have been able to claim that at least the west half of the abandoned right-of-way of the old public road was theirs. Here’s an image from the Stone County Assessor’s maps:

The State of Missouri built Highway 39 in the mid-1950s, mainly along an old public road. At the point shown in the image, the severe dogleg in the old public road wasn’t followed, leaving a gentler bend.

McCullough obtained a deed to the land east of the highway and the triangle between the old road and the highway in 1955,  about the time the highway was constructed. Eventually, McCullough claimed to own a portion of the entire public road on the west side of his property, even the west half of the public road adjacent to the Doss and Allen properties. He filed suit, claiming that the public road had been abandoned and that he owned the west half of the public road by adverse possession. Doss and Allen claimed that the old public road was still a public road.  The court opinion doesn’t say so, but it may be fair to assume that McCullough didn’t claim the parts of the public road that Doss and Allen use for access to their driveways.

Missouri’s statute, section 228.190.1, says that public roads are abandoned when five years passes without use by the public. When public roads are abandoned, title to to the road’s right of way generally reverts to the adjacent properties from the road’s centerline.

Doss and Allen argued that this non-use statute does not apply when the old roadway was voluntarily given to the county for a roadway. Because McCullough didn’t prove that it wasn’t voluntarily given to the county, the trial court committed error by applying the nonuse statute. Doss and Allen cited a couple of cases in support of this argument from the Southern District of the Missouri Court of Appeals.

The Missouri Supreme Court said that the Southern District was simply wrong. The nonuse statute has no such exception. The Missouri Supreme Court recognizes a different exception–for roadways that are dedicated for perpetual use as roads, whether or not the road is actually built.

Doss and Allen also argued on appeal that McCullough’s evidence of nonuse by the public was insufficient. McCullough, they said, obstructed the roadway so that the public couldn’t use the road.  The Supreme Court held that his obstruction didn’t matter, implying that if the public was disturbed, the public should have sought an injunction to force McCullough to remove the obstruction.

For his adverse possession claim, McCullough and his son testified that they had used the old roadway to store farm equipment for 40 years. No mention was made of any evidence to the contrary. The Supreme Court said that the trial court had the discretion to determine the credibility of the testimony of the witnesses.

The facts of this dispute point out the necessity of landowners taking steps to assert their rights to avoid losses by adverse possession. Doing so often requires consulting with surveyors and real estate lawyers.

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About Harry Styron

I'm a lawyer who lives in Branson, Missouri, whose professional interests involve real estate, construction and local government.

12 responses »

  1. I own a few acres situated on a county road; it is the only access to the property, which is vacant land. At least one other property owner also needs this road for access, but noone actually lives along this road. This road is about 1/4 mile long and runs from a Missouri state highway to a marked public access point on an Army Corp of Engineer’s lake.
    Before the lake was filled, the road continued across the future lake bed and connected to other county roads. The county has not performed any repairs to this road in the last 6 years; possibly longer. I have occasionally seen members of the public use this road to access the lakeshore until about 2 years ago when the road became impassable to vehicles. I still see people walk down the road. The county refuses to repair the road and wishes to “vacate” it. Can the county refuse to maintain the road? If the road is “vacated” do I still have legal access to my property? Thank you.

    Reply
    • Fred,
      If you’re in MIssouri, the county can stop maintaining the road, but can’t deprive you of access without compensation. I have seen courts in Missouri rule that roads leading to a Corps lake are permanent access roads for the public, regardless of whether the county maintains the roads.

  2. Thank you for the response. If “vacated” roads become the property of adjacent landowners,
    “to the centerline of the road,” do I need a written and recorded easement for ingress and eggress over this formerly public road that is now private property, and do I have to pay for that? In the case you cited you mentioned that it appeared that McCullough apparently did not try to gain title to that portion of the “old” road that Doss & Allen utilized for access; how precarious is that access now that McCullough has prevailed in his suit, and would Doss &
    Allen have to bear the expense of litigation if McCullough now attempted to seek title to
    the remaining portions of the “old’ road? What should Doss and Allen do at this point to insure their rights to the use of those portions of the “old” road that they need for ingress/egress? Do they have to do anything? Thank you.

    Reply
    • Fred,
      If a court has determined that a once-public road (in Missouri) is no longer a public road, due to non-use by the public or the lack of maintenance by the government, and the road becomes the property of the adjacent owners to the centerline, the appropriate thing to do, as you suggest, is for there to be a recorded easement and maintenance agreement to be signed by adjacent landowners and any other property owners who depend on the road for access to their properties. This document should create a procedure for determining the maintenance needs for the road, allocating the costs of road maintenance in some rational way.

      While negotiating the terms of an easement and maintenance agreement can be difficult, it is far less expensive to work something out rather than to litigate later.

  3. First, I appreciate that you are willing to answer questions. As I am sure you know, when faced with legal issues it can be quite distressing to not know how the law applies to you. So again, thank you for this site and your willingness to answer some questions.
    How does a person go about finding out if a public road no longer maintained by the county falls under 228.190 or if it falls under 228.110?
    If the county receives allocations of county aid road trust funds but only maintains 1/10 mile of the county road does the unmaintained portion fall under 228.190 or 228.110?
    If a public road falls under 228.190 for abandonment; it is now pasture, a new driveway was built by the landowner and someone now wants access through that land…do they need to do an easement for access or is the landowner obligated to let them pass where the old road was (now in pasture) or where the new drive is?
    If the old road falls under 228.110 but is now pasture can the current landowner have the person wanting access to use the new drive and dirt road connecting to the national forest portion of it instead to get back to their place?
    I know you can not landlock someone. If they own adjoining properties and then sell one without reserving access and now is landlocked; can they force another landowner to give them access where they want? If the properties believed to be adjoining are found to have a short distance with another property between and that landowner offers access but they decline and later want access in a different area is that landowner obligated to give it where they want it after they sold one of the properties without reserving access from the new owners thus landlocking themselves?
    This ties in to the landlocked owner wanting access through an abandoned public road that no longer exists.
    If access must be given does the landowner through which the old road use to run have to bear the burden of fencing both sides off to contain livestock or can they keep gates up that the landlocked owners can pass through?
    If access is through the new drive can the owner of the drive require help with maintenance of the drive?
    If the landlocked owner uses the new drive and a dirt road back to their land. Does the owner of the land they will be crossing have to allow them to put down gravel or otherwise improve it? If so, does that owner have any say over what materials are used to improve it? If the owner of the land doesn’t use it for driving over (it is only used for open grazing) does that owner have to help maintain it?
    Thank you for any enlightenment you can give me.

    Reply
    • My reading of section 228.110 of the Missouri statutes is that it provides a procedure formally establishing that a county has no future responsibility for maintenance of a road. In other words, section 228.110 provides a procedure for converting a public road into a private road.

      Section 228.190 creates a presumption that a county has abandoned a public road if the county hasn’t spent public money or labor on it for five years. Unlike section 228.110, this statute does not provide a procedure.

      As far as applying these statutes to specific situations, the parties involved need to consult lawyers in their communities to discuss the history of the roads and the claims of the people who may use them. Few things are as factually complicated and loaded with emotion. Things are rarely as they seem.

  4. You mentioned in this blog that you have seen Missouri courts rule that roads through Corps of Engineers property are to remain open for public use. How can I find out more about these specific cases? Also, am I allowed to perform routine maintenance myself on these roads if the county is not doing it?

    Reply
  5. Lou Filczerczer

    subdivision plated 30 ft roadway behind my house.previous owner built outside of legal description where house ends on the legal some 50 years ago., a fenced yard and storage building etc upon the far edge of the of the road .Roadway was never used or developed since owner plated back in the late 1890’s.The county has done nothing to it nor do I believe accepted it. My assumption is that I own what he built and sold to me thats on the road and never been developed

    What do I do to have the surveyer extend my property lines to include the storage bldg.etc that’s on the road as part of my property description and legal.He used reconstuctured from memory, fire destroyed records that are not accurate but used typically here in Taney County.Also,who or where is juristiction if legal process would be needed?

    Reply
    • A surveyor cannot change your lot lines. A surveyor’s job is to show the lot lines as defined by deeds and recorded plats and other documents.

      Under some circumstances, a county commission in Missouri can vacate a road shown on a plat, with the result that the vacated area can be added to the legal description of the adjacent lots.

  6. Question? Old county road ran through grandfather’s land. The state built New highway. For years my grandfather claimed back the old road. 60 years later county claims the road back. Is this legal?

    Reply
    • To get an answer, you’ll need to find a lawyer in your community who will review the historical records of the road and ownership of adjacent land. The doctrine of adverse possession does not apply against governmental units (at least in Missouri).

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