Property Law

Paul F. Sherman, Esquire

Intent to abandon easement must be shown, along with non-use, for abandonment to apply, and exclusivity is a requirement to extinguish an easement by adverse possession, but without a legal description the grantee of a valid easement is entitled to a convenient, reasonable and accessible way for use. Baker, et al. v. Walnut Bowls, Inc., et al., No. 31205 (Mo. App. S.D., February 11, 2014), Bates, J.

The Bakers filed a declaratory judgment action to determine the precise location of an express easement reserved over Lebanon property owned by Defendant Walnut Bowls, Inc. (Defendant “WB”). Defendant WB counterclaimed to add parties and quiet title, plus aver the easement was abandoned or extinguished by adverse possession.

The 21-acre tract was conveyed by warranty deed to Defendant WB in 1998 “subject to reservation of easement by Junior Thompson and Wilma I. Thompson, his wife, from City Route 66 back to the property owned by them lying West of the tract herein-above described.”    The Bakers acquired the remaining adjacent Thompson property in 1998, but had another access.

In 1999, Defendant WB started using its 21 acres to sell modular homes, blocking the easement access except for pedestrians. Defendant WB stopped selling modular homes on the property in 2007 and wanted to sell the land. Title work then revealed the easement, no sale occurred.

In July 2007, the Bakers filed to have the court declare the location of the easement. Between 2008 and 2010, Laclede Electric entered Defendant WB’s property to clear area beneath its electric lines.

The trial court issued findings of fact and law concluding the Bakers failed to present sufficient evidence to determine and fix a definite easement location and any easement by the Bakers was extinguished by adverse possession. This appeal followed.

The Bakers’ easement was not abandoned. Non-use alone is not sufficient. It was Defendant WB’s burden to show the Bakers’ clear intent to abandon by clear and convincing evidence.

The Bakers’ easement was not extinguished by adverse possession. Defendant WB had the burden to prove all five elements by a preponderance of the evidence. There was no exclusive use shown with no available easement route across for ten years consecutive. A permanent boundary fence or locked gate was not installed until 2010. Trailer sales blocked only for the period 1999-2007. Thus, the evidence was not sufficient to prove the Bakers were wholly excluded sufficient to extinguish by ten years’ passage of time.

The easement’s description was sufficient.  An easement can be created even though its precise location is not set out in the grant, the grantee is entitled to a convenient, reasonable and accessible use. 

Held: Judgment reversed and cause remanded for further proceedings.