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.