Section 228.352

Title XIV ROADS AND WATERWAYS

Chapter 228

Effective - 28 Aug 1993   

  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.

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