State of Missouri, Respondent, v. Pat Skelton, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: State of Missouri, Respondent, v. Pat Skelton, Appellant. Case Number: 28454 Handdown Date: 04/07/2008 Appeal From: Circuit Court of Dunklin County, Hon. Joe Z. Satterfield Counsel for Appellant: Lynn N. Bock Counsel for Respondent: Stephen P. Sokoloff Opinion Summary: None Citation: Opinion Author: Daniel E. Scott, Judge Opinion Vote: AFFIRMED. Parrish, P.J., and Bates, J., concur. Opinion: Pat Skelton ("defendant") appeals his bench-trial misdemeanor conviction of violating section 229.150, (FN1) which prohibits the willful or knowing obstruction of "any public road ... by fencing across or upon the right-of- way of the same ...." Defendant admits he fenced across and obstructed the St. Francis Levee Road. The issue is whether that is a "public road." Public roads may be established in three ways: (1) under section 228.190, (2) by prescription, or (3) by implied or common law dedication. Chapman v. Lavy, 20 S.W.3d 610, 613 (Mo.App. 2000). Under section 228.190, "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." Defendant concedes the uncontroverted evidence of such public user and public expenditures, but for two reasons still denies a "public

road" is involved. Point I posits that section 228.190 "sets forth the requirements to establish a public road by prescription." Defendant notes the public expenditures on the road were by Independence Township, but claims the road sits atop land owned by a different public entity (a county drainage district), and argues that public bodies are protected from adverse possession by section 516.090.(FN2) However, section 516.090's purpose is to avoid the loss of public lands by barring natural or corporate persons from claiming them by adverse possession. Basye v. Fayette R-III Sch. Dist. Bd. of Educ., 150 S.W.3d 111, 116 (Mo.App. 2004). That is not the situation here. Further, it is unclear if or how section 516.090 relates to public roads created under section 228.190, especially since Chapman and other cases(FN3) describe section 228.190 and prescription -- contrary to Point I -- as different ways to establish public roads. Finally, no matter which public body/bodies did, does, do, or should own this road, it meets section 228.190's requirements, and section 229.150 prohibits obstructing "any public road" (our emphasis), not those owned or maintained by particular public bodies. Point II claims federal preemption. This road runs atop the St. Francis Levee, which the Army Corps of Engineers built and still federally regulates. Defendant contends that federal supremacy precludes a prescriptive taking of federal property. We are not convinced that defendant proved federal ownership, which also seems to conflict with his Point I claim of ownership by a county drainage district. Defendant also suggests section 228.190 is federally preempted here. By analogy to and consistent with this court's reasoning in Empire District Electric Co. v. Gaar, 26 S.W.3d 370, 373-75 (Mo.App. 2000), we cannot conclude that the degree of federal "levee regulation" shown by this record preempted the trial court from considering section 228.190 to decide whether this case involved a "public road." See also City of Belton v. Smoky Hill Ry. & Historical Soc'y, Inc., 170 S.W.3d 429, 433-35 (Mo.App. 2005). We affirm the judgment and conviction. Footnotes: FN1. Statutory citations are to RSMo (2006 Supp.), unless otherwise indicated. FN2. Section 516.090 provides, inter alia, that "[n]othing contained in any statute of limitation shall extend to any

lands given, granted, sequestered or appropriated to any public, pious, or charitable use, or to any lands belonging to this state." FN3. See, e.g., Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 205 (Mo. banc 1983); Kleeman v. Kingsley, 88 S.W.3d 521, 522 n.1 (Mo.App. 2002); Coffey v. State ex rel. County of Stone, 893 S.W.2d 843, 846 (Mo.App. 1995). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.