Establishing a Private Road in Missouri
A private road in Missouri can be established across other people’s property when necessary to access a public road. A private road may not be established solely for convenience.
Hearing to Establish a Private Road in Missouri
The establishment of a private road in Missouri is governed by Missouri statutes[1] and by Missouri case law. The Missouri statutes say that a private road shall not be more than 40 feet wide and shall cause “as little damage” and “as little inconvenience” as possible to the property it runs across. The petition filed with the court must include “a description of the location of the proposed road, including the points of beginning and ending.”
After the parties have gathered their evidence, the court will conduct a nonjury hearing to determine whether the proposed private road is necessary and if so, where to locate it. The court may also determine who can use the road and which party shall construct, maintain, and repair it. However, the defendants generally cannot be ordered to construct, maintain, or repair the private road running across their property if the order precludes them from using the private road.
Commissioners to Determine Damages
Once the court establishes the private road, it must appoint as commissioners three citizens “to view the location of the private road” and to report to the court the amount of “damages sustained by each defendant” because of the placement of the road on their property. Each party then has ten days to object to the damages reported by the commissioners. If no one objects, then the court will enter a judgment establishing the private road and awarding to the defendants the damages reported by the commissioners. But if a party files an objection to the amount of damages reported by the commissioners, then the court must impanel a jury “to determine the amount of damages to be paid by the plaintiffs to the defendants.” The court will then enter a final judgment based on the jury’s verdict and the court’s earlier order establishing the location of the private road. The private road described in the judgment then becomes a permanent easement.
The measure of damages that the plaintiff must pay to the defendants is generally calculated as the estimated difference between the value of the defendants’ property before and after the private road is constructed. In one case, the commissioners reported that the proposed private road would cause a loss in value of $12,000.00. The parties filed objections to the report, and the trial court impaneled a jury to determine the amount of the damages. The jury heard evidence from the property owners and their expert appraisers. Defendants’ expert estimated that the fair market value of the property across which the road ran was $300,000.00 without the private road and zero with it. The jury entered a verdict for $300,00.00. But the appeals court reversed that judgment on the grounds that the defendants’ expert “failed to testify to the facts or data upon which he based his opinion.”[2]
Costs of Establishing a Private Road in Missouri
Establishing a private road in Missouri can be expensive. Costs can include legal fees, multiple surveys, compensation and reimbursement of the commissioners, and damages that must be paid to the defendant property owners. However, because a private road can be established in Missouri only by showing that the proposed road is strictly necessary, as opposed to just convenient, the landlocked owner generally has no choice but to incur these costs if they want unimpeded access to a public road.
This article is for general informational purposes only. It is not intended as legal advice.
Sewell Law represents clients in real estate and business matters and in civil litigation. Please contact Michael Sewell at (314) 942-3232 or at michael@sewelllaw.net to discuss your legal matters.
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[1] Sections 228.241 through 228.274.
[2] Rigali v. Kensington Place Homeowners, 103 S.W.3d 839, 845 (Mo. App. E.D. 2003).
