McBryde easement invalid; County Road 436 taken off the 2008 paving list

Tuesday, May 6, 2008
KIT DOYLE ~ kdoyle@semissourian.com Lawrence McBryde talked April 18 about the pros and cons of paving County Road 436 near his home north of Jackson. Paving would control dust and be easier on vehicles, but it would also bring more traffic through at higher speeds, said McBryde.

A controversial county road easement notarized seven years after it was signed is not valid, Cape Girardeau County Prosecuting Attorney Morley Swingle said Monday after consulting a real estate lawyer.

Landowner Lawrence McBryde had objected when he learned that an easement for right-of-way on County Road 436 near his 400-acre farm had been notarized and recorded after languishing for seven years in the County Highway Department office. The easement was vital to county plans to pave the road this year and the notarization, based on a little-used state law, took place when a deadline had already passed to finalize this year's paving program.

In an appearance before the Cape Girardeau County Commission, Swingle presented a written opinion by Jackson lawyer John Lichtenegger that the belated notarization was legal but that because the document lacked the signature of McBryde's wife Doris, it wasn't any good.

Controversy about the easement had been the subject of a closed meeting April 17 and was one of a number of reasons for a growing rift among commissioners over county practices. At Monday's meeting, Associate Commissioner Jay Purcell reminded his fellow commissioners that they had agreed to the paving plan deadline and then refused to take heed when he presented an opinion from Swingle challenging the easement's legality.

When Swingle arrived Monday to present Lichtenegger's opinion, he suggested the commissioners again deal with it in a closed session. But Presiding Commissioner Gerald Jones declined.

"Seems like nothing's closed around here any longer," he said.

After Swingle made his report, noting that Lichtenegger had found a reason he did not for declaring the easement to be suspect, commissioners voted unanimously to drop County Road 436 from the 2008 paving plan.

McBryde had refused to re-sign the easement in order for it to be notarized. So Robb McClary, an assistant to the commission and a notary, used a little-known and rarely used statute to get the document recorded with the county.

The easement had "one very critical and fatal flaw," Lichtenegger wrote. Under Missouri law, spouses must sign easements even when their names are not on the ownership deeds, as the McBrydes did last year when they signed an easement for Citizens Electric.

After learning last month of McClary's notarization, Purcell wrote Swingle an April 14 e-mail, asking whether the easement was valid.

"It is not," Swingle replied the same day and an opinion Purcell later presented in a closed commissioners' meeting. When Purcell made a motion at that meeting to drop the road from the county paving program until a properly signed easement was recorded, he could not get a second and the motion failed.

Purcell made the same motion at Monday's commission meeting. Commissioner Larry Bock gave his second and it passed.

Lawrence McBryde said he would have liked to be at Monday's morning meeting, but was not aware his easement was going to be discussed.

He said dropping his road from this year's paving plan was a good decision, but declined to comment on what he thought should happen in the future.

Larry Payne, the county road and bridge advisory board chairman, said he would be discussing the move at his board meeting scheduled for Monday evening.

"The board has been very, very consistent in their belief that we should have those easements because that's what the policy says and that policy was adopted by the [county] commissioners," he said.

Payne said he was disappointed that the commissioners had rejected an earlier suggestion to follow state statute which allows the county to take up to 30 feet from the center line, and build a retaining wall between the road the McBryde's property.

Staff writer Rudi Keller contributed to this story.

pmcnichol@semissourian.com

335-6611, extension 127

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