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.
Notes of Decisions
Cited in
8
cases (
1 in the last 5 years), 1998–2022 · leading case:
Short v. S. Union Co., 372 S.W.3d 520 (Mo. Ct. App. 2012).
Short v. S. Union Co., 372 S.W.3d 520 (Mo. Ct. App. 2012).
· cites it 10× “342 petition has been filed, “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.” Section 228.”
Anderson v. Mantel, 171 S.W.3d 774 (Mo. Ct. App. 2005).
· cites it 15× “358 requires all the provisions of the interlocutory order to be included in the final judgment and section 228.352 specifically requires the court to include in an interlocutory judgment a determination of the nature and scope of the parties’ rights to the use and the enjoyment…”
Hamai v. Witthaus, 965 S.W.2d 379 (Mo. Ct. App. 1998).
· cites it 6× “After the action was initiated responsive pleadings were filed; discovery was had; and the court then held a nonjury hearing as required by Section 228.352 RSMo to hear and consider the matter.”
Rigali v. Kensington Place Homeowners' Ass'n, 103 S.W.3d 839 (Mo. Ct. App. 2003).
· cites it 2× “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…”
Moss Springs Cemetery Ass'n v. Johannes, 970 S.W.2d 372 (Mo. Ct. App. 1998).
· cites it 2× “Appellant will then be liable to pay for the establishment and maintenance of the requested roadway, and shall compensate Respondents for the fair market value of the roadway land and any ditches to the side of the roadway, as required by Section 228.352. GARRISON, P.J., and…”
Eggemeyer v. Connolly, 986 S.W.2d 516 (Mo. Ct. App. 1999).
· cites it 4× “After a plaintiff files a petition in the circuit court of the county where the proposed road is to be located, Section 228.352 requires the trial court to conduct a nonjury hearing and determine whether the proposed road is a way of strict necessity.”
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