by James R. Keller
This article appeared in 14 Missouri Lawyers Weekly 1152, September 25, 2000.
Mandatory injunctions, requiring something to be removed from real property, are rare in Missouri. Yet in two, potentially groundbreaking cases since May of this year, courts have ordered developers to remove all or parts of roads they wrongfully built.
The first case is Ridgway v. TTnT Development Corp., 2000 WL 1024558 (Mo. App. S.D. July 26, 2000). In this case the appellate court reversed a trial court and instructed it to order a developer to remove those portions of its newly built and paved road that exceeded the developer's easement rights. The Southern District found the trial court's failure to order the removal to be an abuse of discretion.
The other case is Wildflower Community Assoc. v. Rinderknecht, 2000 WL 517818 (Mo. App. W.D. May 2, 2000). In this one the appellate court affirmed a trial court's order that defendants remove a road built over common ground.
These two cases may be the start of a shifting, more severe court temperament at both the trial and appellate levels toward developers found to encroach upon the property rights of others. This article examines these two cases and considers their potential impact on prior decisions where the courts traditionally have declined to impose such drastic relief.
Ridgway v. TTnT
The Facts: Plaintiffs, as husband and wife, purchased in 1993 real property in Camden County on the Lake of the Ozarks. They lived in St. Louis County. A week later, defendants acquired some adjacent property and additional property three months thereafter. They then proceeded to build a commercial development called The Ledges on the Beach Condominiums.
The Ridgways' property had a 40-foot-wide easement running from a public road, through plaintiffs' property, and to defendants' newly acquired land. This easement, established only a year earlier as a roadway easement, is what caused the dispute.
When defendants purchased their property the roadway easement was merely a gravel road about 25 to 30 feet wide. Defendants desired a better road to serve their condominium project. Almost immediately after purchasing the land they started building, without notice to plaintiffs, a new road over the existing, gravel easement.
The new road, basically built on top of the old one, exceeded the 40-foot limit in several places. Defendants removed trees and raised the roadbed several feet above its original elevation. This created a steep embankment on the downhill side. At some points the new road was 50 to 65 feet wide from tree line to tree line.
Upon learning what was happening, plaintiffs told the defendants, by letter, to stop and to remove what they had done. Defendants ignored the letter, completed construction of the road and then paved it. Up to this point, the condominium project had not yet been built.
The Lawsuit: The Ridgways responded with a three-count petition for ejectment, injunctive relief for trespass, and punitive and treble damages. Defendants counter sued for interference with defendants' use of the right of way and wrongful inducement of breach of contract. They too sought actual and punitive damages.
The Decision: There was a two-day bench trial. The court denied defendants' counterclaim. On plaintiffs' lawsuit, the trial court found that defendants had wrongfully taken about .7 acres worth $7,570.
The court only awarded nominal damages of $1, however, for defendants' trespass. It concluded that plaintiffs' property actually increased in value by 20 percent and thus was worth more than the cost of $7,570. The trial court denied plaintiffs' request that defendants remove the new road over the easement.
The Southern District found this decision to be an abuse of discretion. The trial court should have entered a mandatory injunction and ordered the removal of the roadway and related improvements outside of the easement.
In reaching this decision, the appellate court found no misconduct on plaintiffs' part. On the other hand, it found defendants or their contractor "either willfully or carelessly encroached" upon plaintiffs' property. Either way, the Southern District pronounced that courts should not condone such conduct. Otherwise, private developers essentially would have the power of eminent domain. It was irrelevant to the court whether plaintiffs benefited from this new and improved road.
Wildflower Community v. Rinderknecht
The Facts:The Rinderknechts built a driveway over common ground owned by the Wildflower Community Association, Inc. Marcia Rinderknecht had bought a lot in 1982 in the subdivision and in 1989 Rinderknecht, Ltd. purchased the lot next to it.
In 1996 the Rinderknechts requested and received permission from the Wildflower Architectural and Environmental Control Committee to build a residence on the lots. As part of the process, the Rinderknechts submitted a building permit form that had a provision for associated structures such as driveways. The Rinderknechts did not list on the form a driveway as an associated structure. They attached a lot layout, however, that did show a proposed driveway across the Association's common ground.
The Rinderknechts then requested of the Association's board of directors permission to build a driveway over the common ground or buy the common ground and then build the driveway. The board denied the request.
The Rinderknechts met two more times with the board to change its mind but to no avail. In fact, the board requested that the Rinderknechts resubmit their lot layout without the driveway, which they did. The Rinderknechts then started building the road over the common ground.
The Lawsuit: The Association sued the Rinderknechts for an injunction to prevent their use or construction of the road. The Committee followed this with a letter to them, making clear that if they previously had understood that the building permit granted them permission for the road, the Committee revoked such permission.
The Decision: The trial court, sitting in equity, found that the Rinderknechts did not have permission to build the driveway. The Rinderknechts' rights to use the common ground were no greater than those of any other property owner. Also, the Committee did not have authority to grant them permission to build the driveway.
The court ordered the Rinderknechts to remove the driveway and ruled that they could never use the common ground for a driveway.
The appellate court noted that the Rinderknechts did not assert that the Association consented to their construction of the driveway over the common ground. Instead, they argued approval of the building permit vested them with permission.
There was considerable evidence at trial going both ways on the issue of permission. Three Committee members testified. One said she only approved what was on the permit itself (which did not include the driveway). Another said he did not recall seeing any mention of the driveway in the permit. He would have approved it but believed such approval could only appropriately come from the board of directors. The third one said he approved construction of the roadway but agreed that the Rinderknechts had to obtain board approval for the driveway.
The Western District stated it was not "firmly convinced" that the trial court's decision was wrong. Thus, the driveway had to be removed.
Other Recent Cases
There are some other recent cases suggesting a change in judicial philosophy.
For example, in Shuffit v. Wade, 13 S.W.3d 329 (Mo. App. 2000) decided March 21, 2000, the trial court denied a request to remove a fence located on property where the parties disputed the boundaries of their land. The trial court ruled in favor of the defendants so the denial of a request to remove was obvious.
The appellate court, however, reserved the judgment, found in favor of the plaintiffs and ordered the trial court to declare that plaintiffs owned the disputed land where the fence was. Further, the appeals court directed the trial court to include in its new judgment findings on each claim for relief, which would include a request to remove the fence.
Also, in Knox County Stone Co. v. Bellefontaine Quarry, Inc., 985 S.W.2d 356 (Mo. App. 1988), the Eastern District Court of Appeals affirmed a trial court's order that defendant remove gateposts and a trailer from property. The property was an easement right-of-way for a sidetrack that crossed over defendant's land.
Before these recent cases, prior decisions show that Missouri's trial court judges, despite frequent requests and opportunities, seldom issued a mandatory injunction in this area. While the reasons varied, the results predictable were the same.
The trial court enjoys considerable discretion as a court of equity when deciding whether to order the removal of something from real property. Since the judge's decision will not be overturned on appeal unless there is an abuse of discretion, the courts certainly had the opportunity to issue more mandatory injunctions.
Historically, Missouri's trial courts have engaged in self-restraint. They did this in part because the appellate courts pronounced that a trial court should apply its "strong arm of equity" with caution and sparingly when issuing a mandatory injunction compelling the removal of part of a building from property it encroaches. SeeHeinrich v. Hinson, 600 S.W.2d 636 (Mo. App. 1980) and Keokuk Inv. v. Doerhoff, 530 S.W.2d 507 (Mo. App. 1975).
Perhaps the balance is starting to tilt in a different direction.
Mr. Keller is a partner at HERZOG, CREBS & MCGHEE, LLP in St. Louis, practicing civil litigation with an emphasis on construction, business and real estate disputes. He also is an arbitrator for the construction and commercial sections of the American Arbitration Association.