Missouri Statute | Act | Code |Roads And Waterways| US Code - US Statute | Chapter 228 Establishment And Vacation Of Roads

The words "established" and "establishing", as used in sections
228.010 to 228.190 in relation to public roads, shall be held to embrace
the locating, relocating, changing or widening of roads, and the word
"road" shall include bridges and culverts. (RSMo 1939 § 8487)

Prior revisions: 1929 § 7841; 1919 § 10637

Applications for the establishment of all public roads, except
state roads, shall be made by petition to the county commission. Such
petition shall be signed by at least twelve registered voters of the
municipal township or townships through which such proposed road may run,
three of whom shall be of the immediate neighborhood, and shall specify
the proposed beginning, course and termination thereof, and shall be
accompanied by the names of all persons owning land through which such
road shall run, with the amount of damages, if any, claimed by them, so
far as can be ascertained, and also the names of those who are willing to
give the right-of-way for such proposed road, except that if the proposed
road begins or terminates on, or runs along a boundary between the county
wherein such petition is filed and an adjoining county, any or all of the
petitioners may be registered voters of such adjoining county, and of the
municipal township or townships thereof through which the proposed road
may run, or in which the proposed road may begin or terminate. (RSMo 1939
§ 8473, A.L. 1990 H.B. 1070)

Prior revisions: 1929 § 7827; 1919 § 10625; 1909 § 10435

(1958) Where petition for road failed to specify point of beginning,
course and point of termination of proposed road, it did not confer
jurisdiction to establish road. Elrod v. Maries Co. (A.), 309 S.W.2d 12.

Notice of such intended application shall be given by printed or
written handbills put up in three or more public places in such municipal
township or townships, one of which shall be put up at the proposed
beginning, and one at the proposed termination of said road, at least
twenty days before the first day of a regular or adjourned term of the
county commission to which the petition is to be presented, which notice
shall apply to and be binding upon all persons and corporations
whatsoever having any interest in or title to the lands, or any part
thereof, over which said proposed road may run. (RSMo 1939 § 8474)

Prior revisions: 1929 § 7828; 1919 § 10626; 1909 § 10436

When the petition required by section 228.020 is presented, and
upon proof of notice having been given as required in section 228.030, if
no remonstrance is filed and if the petitioners give the right-of-way for
the proposed road or pay into the county treasury an amount of money
equal to the whole amount of damages claimed by landowners through whose
land the proposed road would run, the county commission, without
discretion to do otherwise, must open said road and thereupon the
commission shall proceed as in sections 228.010 to 228.190 provided in
cases where upon a hearing the commission find it necessary to establish
a road. (L. 1949 p. 551 § 8475)

1. If a remonstrance is presented signed by twelve or more
persons residing in the municipal township or townships through which it
is proposed to establish such road, three of whom which reside in the
immediate neighborhood, the county commission shall hear such witnesses
as the respective parties may produce in regard to the public necessity,
practicability and probable damages, if any claimed, to the owner of the
land through which it is proposed to establish such road, and the expense
of establishing and building the same, including bridges and culverts
therein.

2. If the commission upon such hearing shall find that the facts in the
case do not justify the establishing of such road, the proceedings shall
be dismissed. If the commission shall find that the facts do justify the
establishing of such road, either at the expense of the county, or of the
petitioners, or both, it shall make an order accordingly. (L. 1949 p. 551
§ 8475a, A.L. 1990 H.B. 1070)

If the county commission finds it necessary to establish such
road, either at the expense of the county or wholly or partly at the
expense of the petitioners, and the petitioners pay into the county
treasury, on or before a time to be fixed by such commission, the
probable amount of damages or a sum to be fixed by the commission, to the
use of the owners of such lands, the county commission, by order, shall
direct the county highway engineer, within sixty days thereafter, to
view, mark out and survey such road, take all relinquishments of the
right-of-way of those who will give the same, and take the names of all
owners of land through which said road may run who have not given or will
not give the right-of-way, and the amount of damages claimed by each one
separately, together with a legal description of the lands of each owner
sought to be taken, and also the engineer's estimate of the cost of the
bridges, culverts, and grading that may be necessary upon such road. The
engineer shall report his proceedings in the premises, together with his
survey and plat of said road to the county commission. (L. 1949 p. 551 §
8475b)

No county commission shall order a road established or changed
until such proposed road or change has been examined and approved by the
county highway engineer. (L. 1949 p. 551 § 8475e, A.L. 1953 p. 666)

If it shall appear from the engineer's report that the
right-of-way has been secured, and needs therefor filed, or that the
damages claimed do not exceed the amount offered by the commission or
deposited by the petitioners, or both, the commission shall order the
road established. (L. 1949 p. 551 § 8475c)

The county highway engineer shall file all relinquishments,
deeds and plats of said road in the office of the county clerk, who shall
preserve them together with the order of the commission establishing the
road as public records in a book to be provided for that purpose. All
such deeds shall be filed and recorded in the office of the recorder of
deeds. (L. 1949 p. 551 § 8475d)

If it appears that any person through whose lands such proposed
road should run has failed or refused to relinquish the right-of-way, or
is not willing to take the amount of damages offered him by the
commission or petitioners, or both, or in case any such owner is
incapable of contracting or is a nonresident of this state, and it
further appears to the county commission that the proposed road is of
such great public utility as to warrant its establishment, the county
commission shall order the road established and shall direct the
prosecuting attorney of the county to institute proceedings in the name
of the county in the circuit court for the purpose of condemning such
lands. Such proceedings shall be instituted and conducted by said
prosecuting attorney under the provisions of chapter 523, RSMo. (L. 1949
p. 551 § 8476)

CROSS REFERENCE: County commission may institute condemnation proceedings
for what purposes, RSMo 49.300

(1965) Sections 49.300 and 228.100 in combination indicate a legislative
intent to cover the entire subject of the judicial phases of condemnation
proceedings by county courts and, therefore, they supersede and by
implication repeal contrary provisions in § 228.180. County of Greene v.
Hammons (Mo.), 389 S.W.2d 843.

1. Any twelve residents of the township or townships through
which a road runs may make application for the vacation of any such road
or part of the same as useless, and the repairing of the same an
unreasonable burden upon the district or districts. The petition shall be
publicly read on the first day of the term at which it is presented, and
the matter continued without further proceedings until the next term.

2. Notice of the filing of such petition and of the road sought to be
vacated shall be posted up in not less than three public places in such
township or townships, at least twenty days before the first day of the
next term of the commission, and a copy of the same shall be personally
served on all the persons residing in the district whose lands are
crossed or touched by the road proposed to be vacated in the same manner
as other notices are required to be served by law; and at the next
regular term the same shall again be publicly read on the first day
thereof.

3. If no remonstrance is made thereto in writing, signed by at least
twelve residents of the township, the commission may proceed to vacate
such road, or any part thereof, at the cost of the petitioners; but if a
remonstrance thereto in writing, signed by at least twelve residents of
such township or townships, is filed, and the commission after
considering the same shall decide that it is just to vacate such road, or
any part thereof, against the vacation of which the remonstrance was
filed, the costs shall be paid by the parties remonstrating, and the
original costs, and damages for opening such vacated road shall be paid
by the petitioners to those who paid the same, except that if five years
have elapsed since the original opening of the same no such reimbursement
shall be made. (RSMo 1939 § 8482, A.L. 1990 H.B. 1070)

Prior revisions: 1929 § 7836; 1919 § 10634; 1909 § 10445

CROSS REFERENCES: City streets, how vacated, RSMo 71.240 to 71.280
Temporary abandonment to permit mining--limited to certain counties--
procedure, RSMo 229.420 to 229.450 Vacation of streets in cemeteries,
proceedings, RSMo 214.060, 214.070

(1957) "Useless" as used in this section is not synonymous with
"unnecessary" or "unrequired"; but a finding that a road is of no public
utility is necessary to the vacation of a road. Evidence held
insufficient to support vacation order. Burrows v. County Court Carter
Co. (A.), 308 S.W.2d 299.

(1964) Proof of abandonment of public road by showing five or more years
of continuous nonuse by public held sufficient in ejectment action and
plaintiff did not need to obtain a county court order of abandonment
pursuant to section 228.110. Corbin v. Galloway (A.), 382 S.W.2d 827.

(1966) This section provides only way that title to lands dedicated in
perpetual trust and platted for the purpose of establishing streets
thereon as they are needed can be abandoned. State v. Herman (Mo.), 405
S.W.2d 904.

1. Upon the request and at the expense of any petitioners or
remonstrators, a stenographic record shall be made of all proceedings
before the county commission upon any petition to establish or vacate any
public road.

2. Any order of the county commission establishing or vacating a public
road shall be subject to judicial review to the same extent and in the
manner prescribed by chapter 536, RSMo. (L. 1949 p. 551 § 8477)

(1958) Order of county court of Maries County establishing a public road
in Maries County was reviewable by circuit court in Cole County under §
The county commission shall not revoke or set aside any order
establishing or vacating any public road, nor shall a petition to vacate
or reestablish such road be entertained by such county commission for a
period of one year from the time of entering the order; except that the
county commission may amend any such order where necessary to carry out
the purposes of this law. (L. 1949 p. 551 § 8477)

1. The county commissions of the several counties in this state
shall have authority to establish highways on the boundary lines of their
respective counties in the same manner as provided in sections 228.020 to
228.130, and when so established such roads shall not be less than forty
feet wide. Each county shall provide one-half of the cost of establishing
and keeping in repair such road.

2. The proceedings may be brought in any one of the counties concerned,
but the commissioners of the county commission of each of the counties
shall sit as one commission, and a majority of the commissioners shall
decide all questions, and all matters therein shall be heard and
determined in the county where the proceedings are first instituted. A
certified copy of any final judgment establishing such road and the
report of the county highway engineer thereon shall be filed in the
office of the clerk of the county commission of each county, and spread
of record therein. The commission having jurisdiction of the proceedings
shall set all hearings for such days as may not interfere with like
proceedings in the other counties concerned. (RSMo 1939 § 8479)

Prior revisions: 1929 § 7833; 1919 § 10631; 1909 § 10441

1. When a new road has been opened, it shall be districted and
kept in repair as other public roads.

2. The county commission or circuit court, as the case may be, at the
time of giving judgment for the establishment of the road, shall specify
the time when possession shall be given by the owner, allowing the owner
of the land a reasonable time, not exceeding six months, to erect fences,
if any are required, and also time to gather growing crops, if any are
growing at the time on the premises, which time shall be stated in the
judgment. Any landowner who shall fail or refuse to open said road within
the time specified in the judgment shall be deemed guilty of obstructing
a public highway and punished accordingly. (RSMo 1939 § 8480)

Prior revisions: 1929 § 7834; 1919 § 10632; 1909 § 10442

CROSS REFERENCE: Highway engineer to supervise construction and
maintenance of roads, RSMo 61.071

Any person wishing to cultivate or enclose land through which
any road may run may petition the county commission, first giving notice,
as in the case of new roads, for permission to turn such road on his own
land or on the land of any other person consenting thereto, at his own
expense. The commission shall thereupon cause the county highway engineer
to view the same and report the practicability of the proposed change and
distances and situation of the ground, and proposed changes, at the first
term of the commission thereafter; and if upon the report the commission
be satisfied that the public will not be in any manner injured thereby,
or said road lengthened or the grade thereof increased, or the road
thrown on rougher land, it shall order such a change, and upon
satisfactory proof of such road being opened in such manner as to be
equally convenient to travelers, the commission shall make an order
vacating so much of the former road as lies between the different points
of intersections, and cause the report thereof to be recorded. (RSMo 1939
§ 8481)

Prior revisions: 1929 § 7835; 1919 § 10633; 1909 § 10444

(1962) Remonstrants were not entitled to appeal from, or judicial review
of, order of county court vacating roadway which had been relocated by
construction of new road since proceeding was not an adversary proceeding
and involved only the public interest. In re Roadway in Section 21,
Township 60, Range 6, W. (Mo.), 357 S.W.2d 919.

1. The right of eminent domain is vested in the several counties
of the state to condemn private property for public road purpose,
including any land, earth, stone, timber, rock quarries or gravel pits
necessary in establishing, building, grading, repairing or draining such
roads, or in building any bridges, abutments or fills thereon.

2. If the county commission be of the opinion that a public necessity
exists for the establishment of a public road, or for the taking of any
land or property for such purposes, it shall by an order of record so
declare, and shall direct the county highway engineer within fifteen days
thereafter to survey, mark out and describe said road, or the land or
material to be taken, or both, and to prepare a map thereof, showing the
location, courses and distances, and the lands across or upon which the
proposed public road will run, or the area, dimensions, description and
location of any other property to be taken for such purposes, or both,
and the county highway engineer shall file the map and a report of his
proceedings in the premises in the office of the county clerk. Thereupon
the county commission shall cause to be published in some newspaper of
general circulation in the county, once each week for three consecutive
weeks, a notice giving the width, beginning, termination, courses and
distances and sections and subdivisions of the land over which the
proposed road is to be established, or the location, area, dimensions and
descriptions of any other land or property to be taken, or both, and that
such land or property is sought to be taken for public use for road or
bridge purposes.

3. Claims for damages for the taking of any of such land or property may
be filed in the county clerk's office by the owner of the property or by
the conservators of disabled persons or minors owning the property,
within twenty days after the last day of publication. If any claim for
damages be filed, the same shall be heard on the first day of any regular
or adjourned term of the county commission after the expiration of such
twenty days.

4. If the county commission and the land or property owner be unable to
agree on the amount of the damages, or if persons owning land or property
sought to be taken or the conservator of any disabled person or minor
owning such property shall fail to file a claim for damages, the county
commission shall make an order reciting such fact, or facts, as the case
may be, and cause a copy of same to be delivered to the judge of the
circuit court of that county, and a transcript of the record and the
original files in such cause shall be transmitted by the county clerk to
the circuit clerk of the county. Upon receipt of the copy of the order of
the county commission by the circuit judge, the circuit court, or the
judge thereof in vacation, shall make an order setting the cause for
hearing within thirty days, and if the order fixing the date of the
hearing be made by the judge in vacation, it shall be filed in the office
of the circuit clerk and the clerk shall cause copies of the orders to be
served on owners of the property or material to be taken, and also the
conservators of disabled persons or minors having any interest in such
property or material, not less than ten days before the date of the
hearing.

5. The court, or judge in vacation, shall cause to be impaneled a jury of
six residents of the county not interested in the matter or of kin to any
member of the county commission, or to any landowner in interest. The
jury shall view the land, or other property, proposed to be taken, and
shall hear the evidence and determine the question of damages under the
direction of the court or judge. Five of the jury concurring may return a
verdict, and in case of a disagreement another jury may be impaneled.

6. The public necessity for taking the property shall in no wise be
inquired into by the circuit court, and the judgment of the circuit
court, or judge thereof in vacation, in the cause shall not be reviewed
on appeal or by writ of error. (RSMo 1939 § 8486, A.L. 1983 S.B. 44 & 45,
A.L. 1990 H.B. 1070)

Prior revisions: 1929 § 7840; 1919 § 10636

(1955) County court has power to acquire and control rock quarries and
also the implied power to operate same to produce stone for surfacing
roads in the county, but such stone may not be sold to private
individuals. Everett v. County of Clinton (Mo.), 282 S.W.2d 30.

(1965) Sections 49.300 and 228.100 in combination indicate a legislative
intent to cover the entire subject of the judicial phases of condemnation
proceedings by county courts and, therefore, they supersede and by
implication repeal contrary provisions in this section. County of Greene
v. Hammons (Mo.), 389 S.W.2d 843.

All roads in this state that have been established by any order
of the county commission, and have been used as public highways for a
period of ten years or more, shall be deemed legally established public
roads; and all roads that have been used as such by the public for ten
years continuously, and upon which there shall have been expended public
money or labor for such period, shall be deemed legally established
roads; and nonuse by the public for five years continuously of any public
road shall be deemed an abandonment and vacation of the same. (RSMo 1939
§ 8485, A.L. 1953 p. 674)

Prior revisions: 1929 § 7839; 1919 § 10635; 1909 § 10446

(1952) This statute requires that for ten consecutive years sufficient
public money or labor should be expended on the road to keep it in
substantial repair and in condition for public use and public travel.
Evidence reviewed and held not sufficient to establish that there had
been a public road over a certain piece of land. Sellers v. Swehla (A.),
253 S.W.2d 847.

(1952) Evidence reviewed and held insufficient to establish a public road
under this section. George v. Crosno (A.), 254 S.W.2d 30.

(1953) No public highway could be established by prescription since 1887
unless public money or labor had been expended thereon. Leslie v.
Mathewson (A.), 257 S.W.2d 394.

(1956) When public road became legally established by virtue of public
use and expenditure of public money, the public's right of use cannot be
divested except upon abandonment for nonuse by the public as prescribed
by § 228.190. State ex rel. Carter County v. Lewis (A.), 294 S.W.2d 954.

(1956) Evidence insufficient to establish public road by prescription.
Cook v. Bolin (A.), 296 S.W.2d 181.

(1957) Evidence held insufficient to establish that public money had been
expended on road for time required to establish its existence as public
road. Jenkins v. German (A.), 298 S.W.2d 486.

(1959) Where county court record of proceedings establishing and
subsequent widening of a road did not affirmatively show that notice
thereof was given to owners of land over which road would run, the
proceedings were void. Greene v. St. Louis County (Mo.), 327 S.W.2d 291.

(1961) Street in unincorporated area dedicated under section 445.070
would not be deemed abandoned under section 228.190 by nonuse but could
only be vacated in accordance with proceedings set out in section 71.270.
Winschel v. County of St. Louis (Mo.), 352 S.W.2d 652.

(1962) This section does not require that public money or labor shall be
expended every year for ten-year period, but that it shall have been
expended from time to time during any ten-year period sufficient to
maintain the road in reasonably good condition for public travel.
Evidence held sufficient to establish public road. Liberty Township of
Stoddard County v. Telford (Mo.), 358 S.W.2d 842.

(1964) Proof of abandonment of public road by showing five or more years
of continuous nonuse by public held sufficient in ejectment action and
plaintiff did not need to obtain a county court order of abandonment
pursuant to section 228.110. Corbin v. Galloway (A.), 382 S.W.2d 827.

(1966) This section applies to public roads, not to streets and alleys.
Roseman v. Adams (Mo.), 398 S.W.2d 855.

(1966) This section does not apply to title of lands voluntarily conveyed
in trust to be used for the purpose of establishing streets thereon as
they shall be needed as lands so dedicated in perpetual trust and platted
for such purposes can be abandoned only by formal vacation by an order of
the county court. State v. Herman (Mo.), 405 S.W.2d 904.

(1966) This section does not exclude or except public roads paid for by
public funds and required by condemnation. State v. Herman (Mo.), 405
S.W.2d 904.

(1967) Creation of public road under this section was valid although road
created was only 18 to 20 feet wide and section 229.010 requires that
public roads shall not be less than 30 feet in width. Drydale v. Kiser
(Mo.), 413 S.W.2d 506.

(1969) Without the expenditure of public funds and labor over the
statutory period, the mere fact of some use of a tract of land as a
convenient cutoff in leaving and entering a public highway was not
sufficient alone to convert private property into a public road. Mackey
v. Weakley (A.), 439 S.W.2d 219.

A private road may be established or widened in favor of any
owner or owners of real property for which there is no access, or
insufficiently wide access, from such property to a public road if the
private road sought to be established or widened is a way of strict
necessity. As used in this section, the term "strict necessity" shall
include the necessity to establish or widen a private road in order to
utilize the property for the uses permitted by law. Any petition for the
establishment or widening of a private road shall be filed and the
proceeding shall be conducted in the circuit court of the county where
the proposed road is to be located. The owners of the real property over
which the proposed private road shall pass shall be named as defendants.
(L. 1991 S.B. 138 § 1, A.L. 1993 S.B. 236)

The proposed private road as established or widened shall not
exceed forty feet in width and shall be situated so as to do as little
damage or injury and cause as little inconvenience as practicable to the
owner or owners of the real property over which the private road shall
pass. The petition shall contain a description of the location of the
proposed road, including the width and points of beginning and ending.
(L. 1991 S.B. 138 § 2, A.L. 1993 S.B. 236)

Upon the filing of the petition, service of process shall be
issued as provided in the rules of civil procedure. Thereafter, the rules
of civil procedure shall apply when not inconsistent with the statutory
proceedings set out in sections 228.342 to 228.368. (L. 1991 S.B. 138 § 3)

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. (L.
1991 S.B. 138 § 4, A.L. 1993 S.B. 236)

When an order establishing or widening a private road is entered
according to section 228.352, the court shall appoint three disinterested
citizens of the county where the private road is to be located as
commissioners to view the location of the private road and the real
property affected and to assess damages to the defendants. Before
proceeding to discharge their duties, the commissioners shall take and
subscribe an oath, in writing, to be filed with the clerk of the court,
to discharge their duties honestly, faithfully and impartially under the
order of the court. The commissioners shall notify the parties in writing
that on a day specified in the notice the commissioners will view the
affected real property. Such notice shall be given at least ten days
prior to the day specified for viewing the real property, and the notice
shall be served in hand or by registered mail to the last known address
of the party to be served or to that party's attorney. After the
commissioners view the location of the private road and the real property
affected, they shall report to the court and make an assessment of the
damages sustained by each defendant. Upon the filing of such report of
the commissioners, the clerk of the court shall immediately notify the
parties of the filing of the report. The commissioners shall be allowed
reasonable compensation for their services to be set by the court and to
be taxed as costs. (L. 1991 S.B. 138 § 5, A.L. 1993 S.B. 236)

Within ten days after notification of the commissioners' report,
either party may file exceptions to the report and assessment of damages.
If no exceptions are filed, the court shall enter a judgment establishing
or widening the private road and assessing the damages as set forth in
the commissioners' report to be paid by the plaintiffs to the defendants.
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
damages as set forth in the jury's verdict, and the provisions of the
interlocutory order as provided in section 228.352 shall be included in
such judgment. The private road so established or widened shall be a
permanent easement appurtenant to the plaintiffs' real property. (L. 1991
S.B. 138 § 6, A.L. 1993 S.B. 236)

1. Unless exceptions to the commissioners' report have been
filed pursuant to section 228.358, the plaintiffs shall not be entitled
to use of the private road until judgment is entered and becomes final
and appeals, if any, have been exhausted and the plaintiffs have
satisfied the damage award contained in the judgment. The plaintiffs may
voluntarily abandon the proceedings and dismiss the petition at any time
prior to satisfaction of the damage award, and if the plaintiffs do not
satisfy the damage award within sixty days following the date upon which
the judgment becomes final and appeals, if any, have been exhausted, then
the proceedings shall be deemed abandoned. In either instance, the
circuit court shall retain jurisdiction solely to enter an order vacating
the judgment, dismissing the petition and ordering disposition of the
bond, if any. No execution shall issue on the damage award. If the
plaintiffs shall have used the private road before judgment has become
final and appeals, if any, have been exhausted and the private road is
not for any reason established according to the terms of sections 228.342
to 228.368, after final judgment and appeals, the plaintiffs and their
sureties shall be liable on their bond for all damages and costs
occasioned by such use of the private road. If the petition is
voluntarily dismissed after the filing of the commissioners' report or is
deemed abandoned, the plaintiffs and the successors and assigns to the
real property which was the subject of the petition shall be barred for a
period of seven years from the date of the abandonment or dismissal from
filing another petition under sections 228.342 to 228.368, for the
establishment of a private road over the same or any part of the real
property over which the private road was sought in the prior petition.

2. If a party files exceptions to the commissioners' report pursuant to
this section, the plaintiffs shall be entitled to use of the private road
before judgment is entered and becomes final and appeals, if any, have
been exhausted, if the plaintiffs shall have given an appeal bond in an
amount as the circuit court deems sufficient to pay the probable damages
that plaintiffs will owe and costs. (L. 1991 S.B. 138 § 7, A.L. 1993 S.B.
180)

*S.B. 180 and S.B. 236 both amended this section during the 1st Regular
Session of the 87th General Assembly, 1993. Due to conflict, both
versions are printed here.

If any party has filed exceptions to the commissioners' report
pursuant to section 228.358, the plaintiffs shall be entitled to use of
the private road before judgment is entered and becomes final and
appeals, if any, have been exhausted, if the plaintiffs shall have given
an appeal bond in such amount as the circuit court deems sufficient to
pay the probable damages that plaintiffs will owe plus costs. Otherwise,
the plaintiffs shall not be entitled to use of the private road until
judgment is entered and becomes final and appeals, if any, have been
exhausted and the plaintiffs have satisfied the damage award contained in
the judgment. The plaintiffs may voluntarily abandon the proceedings and
dismiss the petition at any time prior to satisfaction of the damage
award, and if the plaintiffs do not satisfy the damage award within sixty
days following the date upon which the judgment becomes final and
appeals, if any, have been exhausted, then the proceedings shall be
deemed abandoned. In either instance, the circuit court shall retain
jurisdiction solely to enter an order vacating the judgment, dismissing
the petition, and ordering disposition of the bond, if any. No execution
shall issue on the damage award. If the plaintiffs shall have used the
private road before judgment has become final and appeals, if any, have
been exhausted, and the private road is not, for any reason, established
according to the terms of sections 228.342 to 228.368 after final
judgment and appeals, the plaintiffs and their sureties shall be liable
on their bond for all damages and costs occasioned by such use of the
private road. If the petition is voluntarily dismissed after the filing
of the commissioners' report or is deemed abandoned, the plaintiffs and
the successors and assigns to the real property which was the subject of
the petition shall be barred for a period of seven years from the date of
the abandonment or dismissal from filing another petition under sections
228.342 to 228.368, for the establishment or widening of a private road
over the same or any part of the real property over which the private
road was sought in the prior petition. (L. 1991 S.B. 138 § 7, A.L. 1993
S.B. 236)

*S.B. 180 and S.B. 236 both amended this section during the 1st Regular
Session of the 87th General Assembly, 1993. Due to conflict, both
versions are printed here.

Any application for change of judge must be filed within thirty
days after the answer to the petition is due or within thirty days after
designation of the judge who will conduct the nonjury hearing for
establishment or widening of the private road, whichever date is later.
Any application for change of venue may only be filed within ten days
after exceptions to the commissioners' report are filed. (L. 1991 S.B.
138 § 8, A.L. 1993 S.B. 236)

The costs of the proceedings incurred up to and including the
filing of the commissioners' report shall be paid by the plaintiff; and
the court, as to any costs incurred in proceedings subsequent thereto,
including the costs of the jury trial, may make such order as in its
discretion may be deemed just. (L. 1991 S.B. 138 § 9)

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