Hirsch v. Ebinger
2011 Mo. App. LEXIS 296
Mo. Ct. App.2011Background
- Hirschs owned property in Franklin County and used a road via Log Cabin Road and an existing gravel driveway to access their land.
- In 2004, Ebinger defendants allegedly built a horse barn across the gravel driveway, allegedly cutting off plaintiffs’ ingress and egress.
- Plaintiffs claimed a prescriptive easement over the lane existed from 1965 to 2005 by adverse, open, notorious, continuous use.
- A trial was held with five plaintiffs’ witnesses and four defense witnesses; the court entered judgment for defendants.
- The court analyzed two time periods: before 1988 (potential lack of visible notice) and after 1988 (possible permissive use).
- Defendants testified that after purchasing in 1988 they permissively allowed others to use the property; plaintiffs argued use remained adverse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs proved a prescriptive easement. | Hirschs showed continuous, open, visible, adverse use for 10 years. | Use was permissive after 1988; earlier use lacked proper visibility. | Judgment affirmed; no prescriptive easement. |
| Whether pre-1988 use satisfied the visible requirement. | Visible, open use evidenced notice of claim to servient owner. | Hirsch testimony showed no proof of notice or visibility pre-1988. | Court could have found no visible element pre-1988. |
| Whether post-1988 use was permissive, defeating adversity. | Use continued under claim of right despite permission issues. | Evidence shows defendants granted permission for use; use was permissive. | Use post-1988 deemed permissive; prescriptive easement not established. |
Key Cases Cited
- MC Dev. Co. v. Central R-3 School Dist. of St. Francois County, 299 S.W.3d 600 (Mo. banc 2009) (standard of review for sufficiency; deference to trial court)
- Watson v. Mense, 298 S.W.3d 521 (Mo. banc 2009) (credibility and appellate deference to findings)
- Leonard v. Robinson, 276 S.W.3d 868 (Mo.App. E.D.2009) (elements and burden for prescriptive easement; adversity vs permissive use)
- Blue Pool Farms v. Basler, 239 S.W.3d 687 (Mo.App. E.D.2007) (permissive use defeats prescriptive rights)
- Kirkpatrick v. Webb, 58 S.W.3d 903 (Mo.App. S.D.2001) (visibility and notice in prescriptive claims)
- Reagan v. County of St. Louis, 211 S.W.3d 104 (Mo.App. E.D.2006) (standard for affirming trial court on any supported basis)
- Rustemeyer v. Rustemeyer, 148 S.W.3d 867 (Mo.App. E.D.2004) (default findings when no trial court findings issued)