Your Loss, My Gain: Easements in Missouri

By David Weiss

Easements in General

An easement is an interest in land owned by someone other than the owner of the property. The land which is benefited by the easement is referred to as the “dominant estate,” while the land impressed with the easement is generally referred to as the servient estate.” Easements may be created by an express grant or by prescription or necessity. An easement grants the owner of the dominant estate the right to use the land for a particular purpose, and such use may be on, under or above the land.

Generally, the duty to maintain an easement rests with the owner of the dominant. There are two general types of easements recognized in Missouri: (1) appurtenant easements and (2) easements in gross.

Most easements are created by creating a conveyance in a legal document that is recorded with the recorder of deeds in the county where the property is located, commonly called an express grant of an easement. However, there are exceptions to the written easement, such as an easement of necessity, implied or visible easement, and easement by prescriptive use.

Appurtenant Easements Recognized in Missouri:
An appurtenant easement, the most common type of easement and what most people think of when they use the term “easement,” is an easement meant to serve another particular piece of land. The property served by the easement is called the “dominant estate.” An appurtenant easement is said to “run with the land.” This means anyone who owns the dominant estate has the right to use the easement. When a parcel of real property that is a dominant estate is sold, the easement “runs with the land” and is still available to the new owner of the land for the same purpose.

The property on which the easement is impressed, the “servient estate,” still owns the property outright. The servient estate is only restricted in what can be done with the portion of the land impressed by the easement. The owner of a servient estate is not allowed to interfere with an easement. For example, if there is an easement to use a road to cross a parcel of property, the owner of the servient estate cannot put a gate on the road, effectively preventing the dominant estate’s owner from using the easement.

An owner can sell the servient estate at any time, but the new owner is still subject to the easement that exists on the subject property.

Easements in Gross

An easement in gross, another type of easement, is an easement that is associated with a person or people, not with the property itself. The easement is personal to the grantee of the easement. This means that any person holding an easement in gross can use the property according to the terms of the easement. It is essentially a personal right to use a piece of land for a particular limited purpose. Unless the easement provides otherwise, an easement in gross cannot be sold or passed down to any descendants of the easement holder. Case law regarding easements in gross is sparse, and a poorly drafted easement in gross can give rise to a dispute about whether there is an easement in gross or an irrevocable license. An example of an easement in gross would be if a person were to sell a piece of property that contains a pond where he or she likes to fish, and the seller negotiates with the buyer to retain an easement in gross that allows the seller to have access to the land only to fish in the pond.

Creation of Appurtenant Easements

There are multiple ways that an appurtenant easement is created. Common law provides three ways to establish an easement: (1) easements by necessity, (2) implied easements, and (3) prescriptive easements. There are other ways to create an easement in writing, not recognized under the common law. They include, but are not limited to: (1) formal grant, (2) reservation or exception in a deed of conveyance, (3)  covenant creation by reference to a plat, and (4) recorded declaration of easements.

Creation of Easement by Necessity

A common law easement by necessity arises whenever land has been subdivided and subsequently sold, but such land is inaccessible except by passing over the remaining land of the grantor, the person who sold the property to the party who now desires an easement. To obtain a common law easement by necessity, the property owner desiring such an easement must show prior unity of title and subsequent deprivation of access to a public roadway. An easement by necessity will not arise from proof that the easement will be convenient. The foundation of the easement must be necessity and not convenience. If a property owner has a substitute way off the land, such owner is not entitled to an easement by necessity. This is true even if the substituted way is less suitable, is quite inconvenient or involves substantial cash outlay.

Section 228.342 of the Revised Statutes of Missouri provides for the establishment or widening of a private road. That Missouri statute states in part that: 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.

In order to prevail under Section 228.342, the parcel of real property must be landlocked and rendered useless without means for ingress or egress to the real property. In  construing this statute, a property owner must prove that he or she owns the land, no public road goes through or alongside the land, and the private road the property owner is seeking is a way of strict necessity.

In a 2012 case involving a statutory easement of necessity, Short v. Southern Union Co., a trial court did not allow the owner of a landlocked parcel of property to have a statutorily declared private road in order to access his property because he did not show that the land he owned could lawfully be used for his planned use. The appellate court overturned the trial court’s decision, stating, “The trial court … failed to recognize that even if ‘strict necessity’ could be interpreted to require Short to establish lawful use for the property, the simple ability to physically access the property in its natural state is a lawful use.” The appellate court also held that the “the right to a way by necessity may lay dormant through several transfers of title yet pass with each transfer as appurtenant...and be exercised at any time by the holder of title thereto.”

In Westrich Farms, L.L.C. v. East Prairie Farm, L.L.C., a 2015 Missouri Court of Appeals case, the court rejected the argument that a farm was “functionally landlocked” because the farmer’s equipment weighed more than the weight limit on the bridge  leading to the farm, and thus denied the farmer a mile-long private road across an adjacent farm. The farmer had testified that his property was adjacent to a county road, but the court held that regardless of the condition of, or limitations on, that road, such was insufficient to take the purported necessity for such private road access across an adjacent farm out of the statutory parameters.

Creation of Implied or Visible Easement

It should be observed that the law does not favor the implication of easements, andcourts are reluctant to infringe upon the rights normally  incident to the absolute ownership of land. The doctrine of easement by implication from pre-existing use has been defined as follows: Where the owner of land has, by any artificial arrangement, effected an advantage for one parcel, to the burdening of the other, upon a severance of the ownership, the holders of the two parcels take those parcels respectively charged with the servitude and entitled benefit openly and visibly attached at the time of the conveyance of the parcel first sold.

Therefore, to create an easement by implication from pre-existing use, there must be: (1) one owner who owns the entire tract and a subsequent subdividing of the tract where the then subdivided parcels are sold, (2) an obvious benefit to one of the parcels and burden to the other parcel existing at the time of sale, (3) use of the property by the common owner in the property’s altered condition long enough before the parcels are sold and under such circumstances as to show that the change was intended to be permanent, and (4) reasonable necessity for the easement. Unlike easement of necessity, the benefit to the dominant tenement must be reasonably necessary to the use and enjoyment of the property, not strictly necessary.

It is said that this rule of implied easements from pre-existing use upon severance of title is based upon public policy, which is favorable to the full utilization of land and the presumption that parties do not intend to render land unfit for occupancy. As a further basis, a presumption frequently invoked is that the parties contracted with a view of the condition of the property as it actually was at the time of the transaction and that after sale neither party has a right, without the consent of the other, to change to the detriment of the other, a condition which openly and visibly exists.

The idea underlying the creation of such an easement is that the parties are presumed to have intended the grant of an easement by implication. Such a presumption can only be based on facts, and this requires a resort to the record evidence. This intention to create an easement by implication must clearly appear in the evidence.

In Dohogne v. Counts, the court, after discussing the elements of implied easements at length, acknowledged that a “gentlemen’s agreement” for many years for sharing a driveway was sufficient to create such an easement by implication.

Creation of Easement by Prescription

To establish a prescriptive easement, it is necessary to show use that has been continuous, uninterrupted, visible and adverse for a period of 10 years. Some courts add the element of notice, though the basis for such is not entirely clear. (See: Homan v. Hutchison) When an easement is claimed by prescription, the character and extent of it is fixed and determined by the use under which it is gained.

Continuity does not require any great quantum of actual use. A claimant who uses the prescriptive easement at his or her convenience, although infrequently, may still make out a claim for prescriptive easement. The 10-year period of prescription can be created by the tacking together of successive owners’ periods of continuous, uninterrupted, adverse use, each of which may be less than 10 years but with their total amounting to 10 years or more. To meet the visible element, the party seeking the easement must show that the servient tenement had notice of the use and that the use was visible.

Notice may be either actual or constructive, or inferred from the facts. Finally, to be considered adverse, for purposes of establishing an easement by prescription, there must be nonrecognition of the owner’s authority to permit or prohibit use. This is because a permissive use of the land cannot ripen into an easement.

Easements by prescription are sometimes confused with adverse possession claims. In  a 2016 case, Daniels-Kerr v. Crosby, the court discusses the differences between an easement by prescription and adverse possession. In its decision, the court makes clear that although title by adverse possession need only be proven by a preponderance of the evidence, a prescriptive easement must be proven by clear and convincing

The attorneys at Weiss Attorneys at Law can help you navigate your way through the rights and obligations existing, or newly created, in the ownership of real property. Oftentimes, these issues arise with neighbors, and thus the outcome will be such so as to affect the immediate enjoyment of your property, possibly for years to come. Contact us if we can be of assistance to you.

Weiss Attorneys at Law, P.C. represents individuals and entities in the ownership, burden, benefit and use of real property, including common interest communities. If you have questions about purchasing, owning, possessing, using and conveyancing real property, contact us. Conveniently located at the intersection of corporate law and real estate law, Weiss Attorneys at Law provides guidance you can rely on. Contact us at 314-588- 9500 or visit us at WeissLawStl.com.