Defining Easements
What is an easement? An easement is simply the right to use a portion of someone else’s property for a designated purpose. Think about the telephone company and their right to put utility poles on your land. Think about the power company and the right to put electricity lines on your property. Think about the utility easement brought about by condemnation (or eminent domain). Think about the road easement which allows individuals to reach their property. Easy examples which most of us have either seen, heard of or even experienced.
Note, it’s "simply" the right to use someone’s else’s land…but it’s also important. I know attorneys who have billed 8 hours in the assessment of an easement for a condo complex in a neighborhood. Now that’s a lot of expense. The sale of an easement is very different than a lease of a property. The sale of an easement is often for specific use. A lease generally has a time limit. A lease is often for peaceful possession of the property. As such , a deed owns a property while an easement owns a right to use some portion of that property.
It’s hard to make life simple and easy in the law and this difference makes a big difference in the eyes of the Court. So the right to use a small portion of another person’s property is substantial. By statute, easements are "construed in favor of the grantee, with favor in doubt goes to the grantee." In other words, when in doubt about the scope of an easement, a Court shall give the grantee the benefit of the doubt with respect to the scope of the easement.
Types of Easements Established in Missouri
In Missouri, the law recognizes several types of easements, and the differences between these can sometimes be confusing. Basically, an easement must exist for a reason involving the enjoyment of a dominant estate by the owner of the dominant estate. These reasons must be within the purpose of the easement. These purposes are as follows:
An easement created from prescription must meet the following elements: 1. Use of the property must be open and notorious enough to give the property owner reasonable notice; 2. Use of the land must be hostile; and 3. Use of the land must be continuous for a period of 10 years in Missouri.
Example: You own a home with no driveway leading to the garage. A well-traveled path across your neighbor’s yard leading towards your garage exists, and it only goes to you. You use this path to get to your garage despite knowing that it is not your property and has always been the property of your neighbor. This path is used frequently, and only goes to you, and for the last 10 years you have always used it without changing or altering it. Based on this, you would have an easement by prescription over your neighbor’s property.
An easement created by express grant must meet the following elements: 1. The property interests must comply with the statute of frauds by being in writing and signed by the grantor; 2. The parties must have had capacity; and 3. There must have been delivery of the easement, acceptance, and consideration.
Example: Your neighbor has lived next door for as long as you could remember. There was always a well-worn path from your driveway to their house, and you and your kids walked it all the time to visit them. One day, your neighbor sold their home to your other neighbor. The new neighbor put up a fence and didn’t allow anyone through to the other side. Even though you’ve used the path for 20 years and they must have known about it, it was never in writing. You would likely lose all ability to use the path.
An easement created by implication must meet the following elements: 1. The land must have been severed while there was a common grantor; 2. The use of the easement must have been apparent; 3. The use of the easement must have been permanent or could have continued long if the grantor had wanted; 4. The easement must have been necessary to the general enjoyment of the dominant estate; and 5. The easement must have existed before the severance of the land.
Example: You owned two lots, Lot A for 20 years and Lot B for 10 years before Lot A became part of part C, a shopping center, and Lot B became part of Lot D, a different shopping center. For the 10 years of the existence of Lot B, the massive amount of daily customers going to Lot A used the entrance and exit to and from the lot to use Lot B as a shortcut to the other shopping center. Even though the "shortcut" was technically on another property, it has now become an easement of necessity because the huge traffic of customers could not use the lot without the shortcut. It also has the five requirements necessary for an easement by implication.
An easement by necessity exists based on the following elements: 1. The land must have been under common ownership at one time; 2. There must have been a severance of the land into two tracts with no access to a public road for either property; and 3. The use of the property after the severance must have been necessary and have existed from the time of severance.
Example: Two parcels of land are owned by one person. The owner built a road from Lot A to the public road so that Lot A was accessible. Several years later the owner sold Lot B to another person, and Lot A was then sold to yet another person. Lot B had no access to the road. Therefore, an easement by necessity would arise.
Creating Easements in Missouri
In Missouri, easements can be created according to law by one of the following: express grant; necessity; prescription; or estoppel. Here is a brief summary of all four alternatives. The information provided is for education only, in no way should it be considered legal advice or creating an attorney-client relationship.
Express Grant: When parties can agree on the terms of the easement, the best method of creating the easement is by express grant followed by a statute of frauds compliant writing. These must clearly describe the subject property, grant access to that property, describe the rights of those using the easement and by when, and limit the rights of the grantor.
Necessity: This type of easement is claimed by a party that is legally prevented from accessing their property without an easement present over another’s property. In these cases, the easement is referred to as essential because without access, the property would be rendered void.
Prescription: A prescriptive easement can arise by adverse use of the land of another. Although there may not have been a legal means by which this use was allowed, it may be granted if it meets the requirements of statute. Note, these requirements do differ among jurisdictions.
Estoppel: When a landowner encumbers a property by knowingly acting in such a way that another party relies upon the encumbrance to his or her detriment in such a way that the landowner cannot later attempt to deny the existence of the encumbrance.
Rights of Easement Holders
The rights and duties of the easement holder and the property owner may vary as a result of an easement being created by grant, by express reservation, by necessity or by prescription. Parker v. McTighe, 643 S.W.2d 559 (Mo. App. 1982); See also Restatement of Property, Second, §4.1. An easement by grant is an express easement which may be created by deed or in some jurisdictions by contract. Parker, supra; Willoughby v. Marsh, 267 S.W.2d 591 (Mo. App. 1954). An express easement is limited to only those purposes specified in the deed creating the right.
An easement impliedly reserved allows the land locked grantor to continue using the necessary dominant estate until the servient estate owner provides another means of access. Pipkin v. Jackson, 971 S.W.2d 711 (Mo. App. 1997), Therefore, the easement is impliedly created as of the time of the earliest deed affecting either the dominant or servient tract. Id. "The key factor is that an easement by necessity must be implied into the conveyance." Purvis v. Chamberlain, 859 S.W.2d 845, 847 (Mo. App. 1993). The use of an implied easement must be reasonably necessary for the beneficial use of the dominant estate. Id.
If an easement is created by necessity, it is extinguished when the necessity giving rise to it ends. Missouri does not support the theory of surcharging when the conditions giving rise to an easement by necessity end as a means of terminating the easement. Pipkin, supra. Surcharging is the removal of the necessity and return to natural conditions. Roberts v. Roop, 799 S.W.2d 589 (Mo. App. 1990).
Unlike an easement created by necessity, an easement by prescription is extinguished only when the period of limitation runs. Missouri Pacific Railroad Co. v. Panhandle Eastern Pipe Line Co., 285 S.W.2d 825 (Mo. 1956). A key difference between an implied easement and one by prescription is that the former is created by operation of law, while the latter is created by adverse possession. Id. An easement by prescription may also be terminated by abandonment, which requires both a cessation of all use of the easement and an intent to abandon the special purpose of the easement. Barnhisel v. Allensworth, 95 S.W.2d 1128 (Mo. App. 1936).
Whether created by grant, reservation, necessity or prescription, a dominant estate easement holder has the right to use the property burdened by the easement according to the terms and conditions of the creation of the easement. The burdened property owner however, has the right to include stipulations for its use and exercise of an easement. Lott v. Sadrakula, 28 S.W.3d 720, 725 (Mo. App. 2000); See also Martinus v. Boston, 334 S.W.3d 305 (Mo. App. 2010) (easement for ingress and egress to private boat dock did not authorize the construction of a ramp and tie-ups for a jet ski and other watercraft).
The easement holder has the duty to exercise his rights to minimize adverse impact on the burdened property. Rottler v. Becking, 707 S.W.2d 383 (Mo. App. 1986). The easement holder shall not burden the servient estate with additional burdens unless expressly granted by the grantor. Parker, supra; Restatement of Property, Second, §4.1; Restatement (First) of Property §493.
Disputes and Legal Action Regarding Easements
Conflicts regarding easements are common in Missouri. Generally, there are three sources of the conflict: (1) the location of the easement, (2) the use of the easement, and (3) the maintenance of the easement.
Issues Regarding Location of the Easement
The location of the easement is often the source of great contention between adjoining landowners with an easement. For example, if the easement provides for a "roadway, driveway or the like," what does the "like" include? If a party uses its easement for horse passage and the adjoining landowner finds horses infringing on his property, what gives? Is it relevant if the easement was granted for a specific purpose such as utility service, but the easement holder is using the easement for other purposes? Is it relevant if the property was owned by one family for fifty years and they have been using a specific path for the last fifty years? What happens to uses that predated the easement? Are uses by one party mutually exclusive with uses by another party? Is it relevant if the easement holder’s actions in regard to its easement have harmed the adjoining landowner?
The focus of the court in these cases seems to be on whether the use is "reasonably necessary" for the benefit of the easement holder. The relevant inquiry "is not whether the disputed use is ‘explicitly included’ in the language of the easement, but whether the disputed use is necessary to the use the easement was created for." As a result, uses can change over time so long as they bear some reasonable relation to the use originally intended. Uses the court will deny include uses that increase the burden of the servient estate, so long as the easement is not being used for a purpose other than that set forth in the language of the easement. The key inquiry is "whether [the] [a]ctivities … exceed [the] permissible scope of use of the easement as expressed in the language of the easement and as defined below."
Issues Regarding Use of the Easement
Frequently , the use of the easement by the adjoining party is the source of great contention. Areas of conflict include the right to use the easement for parking, the right to carry on commercial activities, the right to diligently and continuously conduct oil exploration on the property, the right to flood and drain the property, and the right to neglect the easement. The general rule, as stated by the Missouri Court of Appeals in 1947, is that the "general rule" is "the owner of the servient estate may unilaterally authorize or consent to use of the easement by non-abutting landowners so long as such use affords the entire public the same rights to the easement as that affecting the easement holder."
The case law is particularly sparse on the issue of parking. The cases tend to focus on the amount of land at issue. For example, in a 1955 case involving a fifteen foot easement, the Missouri Court of Appeals held, in a pre-easy-park case, that it is unreasonable for the purpose of an easement for "pedestrian and vehicular traffic, a narrow fifteen foot strip of land to be used for the free and unrestricted parking of several automobiles."
Issues Regarding Maintenance of the Easement
Another source of conflict relates to the maintenance of the easement. What types of acts, if any, will the courts force on the adjoining landowner? What types of acts will the courts prohibit? How much of the cost of such acts will the courts shift on the easement?
The general rule is the owner of the servient estate has a duty to make "reasonable approach and repair" of the easement. However, costs "become unreasonable at the point when they increasingly outweigh the interests of the servient estate, giving due regard to both parties." Nevertheless, the "owner of the servient estate is entitled to the maintenance of the easement only as necessary to effectuate the intended use of the easement-no more, no less."
Altering or Ending Easements in Missouri
Even though a written easement may have been intended to run with the land, it does not mean that your easement rights or restrictions cannot be modified or terminated by consent, abandonment or petition. Termination by consent and abandonment are creatures of equity and may require just an agreement between parties, whereas termination by petition is subject to a definitive legal proceeding.
Like any other legal instrument, an easement is subject to modification or termination by the agreement of the parties. Modifications may include a reduction in scope or changes in mode of use. For example, a road easement originally granted for vehicular purposes may be subject to modification to restrict usage to golf carts. Such modifications are frequent for utility, driveway and access easements. Any agreement to modify an easement should be in writing and signed by the owner of the servient estate and the owner of the dominant estate. Such agreement must result in protecting the interests of both parties to the easement and accomplish their intent.
Easement rights to use or maintain the easement will be forfeited for abandonment. Abandonment is the intentional relinquishment of right in a legal proceeding with the intent to never claim it again. To establish this intent, the relinquishment must be accompanied by an act showing that the right has been relinquished, such as the failure to use the easement for its intended purpose and the failure to exercise control over it. The intent of the party relinquishing the easement must be unequivocally clear. Neither non-usage nor acts which would imply non-usage constitute abandonment, nor do they alone constitute intent to abandon. Abandonment of an easement will be determined on a case-by-case basis and only all the facts and circumstances in a particular case can justify unreeling the easement and forfeit its use.
Easement rights to use or maintain the easement may also be subject to termination by petition. Such termination is governed by specific legal requirements set forth and enforced by statute. The three types are a petition to a court, a petition to a district court when the easement is by prescription or implication and a petition to the governing body of a county, city, town, village or other political subdivision when the easement is to a county, city, town, village or other political subdivision.
How Easements Influence Property Value
Of course the negative affect an easement will have on the value of a property is determined by how the easement is used. The method of use, intensity and frequency of the easement may either enhance or diminish the value of the property. For example, a sewer easement will typically diminish the value of the property, whereas a utility easement may increase the value of the property. But perhaps the best evidence of the negative affect of an easement on the value of your property is the fact that the entity acquiring the easement is required to pay you just compensation, and the offer is nearly always based on before and after property appraisals of your land. In other words, the taking entity will also be hiring an expert in the field to appraise the value of your property. The difficulty comes when the offer is too low based on the before and after appraisal. If the before appraisal by the taking entity is significantly higher than the before appraisal by your own expert, we suggest a negotiation.
Legal Counsel and Guidance
Property owners, potential purchasers, or those involved in property development may desire legal advice regarding easement laws in Missouri upon their sale of land that may include rights of use and access for utility companies or other parties to be located on such land. Because the existence and specific usage of an easement can vary widely upon its nature in its specific terms, inheritance or intent of the parties, and extent in scope, seeking legal counsel to clarify the meaning of terms in the easement can usually be warranted. If you have additional questions regarding the desirability of contacting a real estate attorney with regards to an easement, you may contact our office for a consultation .
It is generally important that the language included in any easement adequately and specifically describe the extent of its scope, including applicable restrictions, so as to prevent future litigation from arising regarding the easement’s intended or actual usage. Other easement-related issues may involve implied easements not explicitly provided for in written agreements, how to research easements, and their impact on real property values, taxes, and the ability to use the relevant property. Missouri property owners faced with any of these issues should consult a local real estate attorney with experience in real property matters.
