Blue Pool Farms, L.L.C. (“BPF”) appeals the judgment denying BPF a private road or a prescriptive easement through property owned by Antje Horton (“Horton”) and Ruth Basler (“Basler”), respectively, and granting an injunction prohibiting BPF from entering Horton’s property. We affirm, in part, and reverse and remand, in part.
I. BACKGROUND
BPF purchased land near property owned by Basler and Horton (“Landowners”). 1 BPF accesses its land using a roadway (“Roadway”) passing through Landowner’s property. In its petition, BPF alleged that Roadway constituted a prescriptive easement, or, in the alternative, that the establishment of a private road was a strict necessity.
Horton filed an answer and counterclaim, alleging that the prior use of the roadway was permissive and that the establishment of a private road would diminish her land’s value. Basler similarly asserted that prior use of Roadway was permissive. Horton further argued that BPF should be enjoined from entering upon her property.
The trial court heard evidence and entered judgment in favor of Landowners, finding that BPF failed to prove the necessary elements for a prescriptive easement and that BPF failed to produce clear and convincing evidence that Roadway was the only means for accessing its property. The trial court further granted Horton’s
II. DISCUSSION
On review of a court-tried case, we must sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence or unless it erroneously declares or applies the law.
Murphy v. Carron,
In its first point, BPF asserts, in part, that the trial court erred in rejecting BPF’s private road claim because the trial court used an incorrect evidentiary standard in determining whether Roadway was BPF’s only means of accessing its property. We agree.
“Pursuant to Section 228.342 [RSMo 2000]
2
, a private road may be established in favor of an owner of real property for which there is no access to a public road, if the private road ⅛ a way of strict necessity.’ ”
Beery v. Shinkle,
Here, the trial court found that BPF “failed to present clear and convincing evidence that [BPF] did not have reasonable legal access to the property.” However, within Section 228.342, there exists no requirement that a plaintiff prove a private road by necessity through clear and convincing evidence. Further, a review of Missouri case law reveals that no Missouri Court has imposed such a burden. For this reason, the trial court erroneously declared the law in mandating that BPF prove its case by clear and convincing evidence.
Next, we must determine whether the trial court’s error prejudiced BPF, constituting reversible error.
Beery,
Here, both BPF’s argument and Landowners’ responses center on the sufficiency of BPF’s evidence. At trial, BPF and Landowners, alike, presented witness testimony regarding the presence or absence of alternate means of access to BPF’s land other than Roadway. Thus, the sufficiency of BPF’s evidence rests on the credibility of such witnesses. “[C]redibility of ... witnesses and the weight to be given their testimony are matters for the trial court,
In its second point, BPF asserts the trial court erred in rejecting BPF’s claim for a prescriptive easement because the trial court wrongly considered whether BPF’s predecessor in title had exclusive use of Roadway and because the trial court failed to shift the burden to Landowners to prove that BPF’s predecessors in title’s use of Roadway was permissive. BPF further argues that if the burden had been allocated properly, BPF presented a sub-missible case.
We note, initially, that the trial court applied the correct evidentiary burden, clear and convincing evidence, for BPF’s prescriptive easement claim. “[A] party claiming the existence of [a prescriptive easement] must show the elements by clear and convincing evidence.”
Shapiro Bros., Inc. v. Jones-Festus Properties, L.L.C.,
We now turn to BPF’s point. BPF is correct that the trial court erred in considering exclusivity as a factor in determining whether a prescriptive easement exists. “To establish a prescriptive easement, it is necessary to show use that has been continuous, uninterrupted, visible and adverse for a period of ten years.”
Whittom v. Alexander-Richardson Partnership,
Landowners assert, however, that even though the trial court erred in considering exclusivity, BPF’s claim for a prescriptive easement fails because the trial court found that use of Roadway was permissive. BPF argues that such a burden rested with Landowners.
A party claiming a right of use “enjoys a presumption that the use is adverse and under a claim of right when there has been a long and continuous use of the disputed property.”
Gill Grain Co. v. Poos,
Mere use of a passage over another’s land for a long time with his knowledge is not necessarily an adverse use and if it is permissive in its inception, such permissive character, being stamped on the use at the outset, will continue of the same nature and no adverse user will arise until a distinct and positive assertion of a right hostile to the owner, and brought home to him, can transform a subordinate and friendly holding into one of an opposite nature. Mere permissive use of land cannot ripen into an easement.
Id.
Here, the trial court found that BPF’s use and BPF’s predecessor’s use of Road
III. CONCLUSION
The judgment is affirmed as to BPF’s prescriptive easement claim and with regard to BPF’s private road claim, the judgment is reversed and remanded for a new trial with the appropriate evidentiary burden.
Notes
. The case from which this appeal arises was originally filed by BPF’s predecessor in title.
. All further statutory references are to RSMo 2000. Section 228.342 provides that:
[a] private road may be established ... in favor of any owner ... of real property for which there is no access ... from such property to a public road if the private road sought to be established ... is a way of strict necessity.