This case involves a dispute over the use of a non-exclusive roadway and utility easement. Daniel Burg (“Mr. Burg”) and Kris Burg (“Mrs. Burg”) (collectively the “Burgs”) own a tract of residential property benefitted by the easement. The easement runs across a tract of
Statement of Facts and Procedural History 1
On March 30, 1993, the Burgs acquired a 44-acre tract of real property in Boone County, Missouri. The property was a part of an area that had been prepared for development (“Development Area”) by Scott Schulte and Hardeep Bhullar (“Developers”). The Development Area had been divided into Tracts 1 through 10 pursuant to a recorded survey. Access to the Development Area was generally afforded by North Tucker School Road, a public roadway running north/south along a portion of the eastern boundary of the Development Area. However, all of the tracts were not adjacent to North Tucker School Road. Thus, the Developer created a private roadway designated as Tract 1 which connected to North Tucker School Road, and which ran through the center of the Development Area in a roughly east to west direction. The record suggests that the conveyance deed from the Developers to the initial purchaser of each of Tracts 2 through 10 included the grant of a perpetual, non-exclusive, roadway and utility easement over Tract 1.
The 44-acre tract the Burgs purchased was Tract 9. Tract 9 does not have direct access to North Tucker School Road. Tract 9 lies north of Tract 1. However, only the south one-third of the western boundary of Tract 9 touches on Tract 1. Tract 10 is located immediately south of Tract 9, and sits in between Tract 9 and Tract 1. Tract 1 runs along the entire southern and western boundaries of Tract 10.
The Burgs purchased Tract 9 intending to build a home on the site some day. Tract 9 is heavily wooded and has topographical issues, including a gorge, which limit where a home can be easily built. When the Burgs purchased Tract 9, the general warranty deed from the Developers afforded them a perpetual, nonexclusive roadway and utility easement over and across Tract 1. Because the Burgs were interested in someday building a home in the southeast corner of Tract 9 (opposite the location where Tract 9 touched upon Tract 1), they negotiated with the Developer for the grant of an easement across Tract 10 to permit access to Tract 1 at the southern property line of Tract 10. The easement the Developers granted over Tract 10 was included in the Burgs’ general warranty deed, and was described as follows:
Together with a 50 feet wide perpetual, nonexclusive roadway and utility easement running generally north-south across the above-described Tract 10 with the west line of said easement area being described as follows: [metes and bounds description of easement deleted ]. This easement shall be for the use and benefit of the present and future owners of Tract 9 of the aforesaid Survey recorded in Book 702, Page 646,Deed Records of Boone County, Missouri. The parties to this Deed and their successors and assigns agree (a) that no cross-fencing, gates or other obstructions shall be placed in the easement area, (b) that the parties shall contribute toward the repair and maintenance of the roadwag in the easement area in proportion to their respective usage with other users of the roadwag in the easement area, and (c) that this easement shall auto-maticallg terminate if and when the easement area is dedicated and accepted by Boone County, Missouri as a public road. 2
(Emphasis added.)
In February 2001, Dampier purchased Tract 10. She did not purchase Tract 10 from the Developer, as there had been intervening owners of the Tract. Dampier’s conveyance document indicated that her legal interest in Tract 10 was subject to easements and restrictions of record.
In August 2002, the Burgs decided to move forward with their plans to build a home in the southeast corner of Tract 9. At the time, a fence was in place on the northern and southern boundaries of Tract 10, and thus across the northern and southern boundaries of the easement over Tract 10. The Burgs sent Dampier a letter requesting that she remove the fence blocking the north and south ends of the easement, along with other obstacles and encroachments located in the easement. 3 The letter advised that if Dampier did not remove the fence, obstacles, and encroachments, the Burgs would do so. Dampier did not respond to the letter. Mr. Burg cut the fences which were blocking the northern and southern ends of the easement.
Dampier responded by filing a lawsuit against the Burgs on August 12, 2002, alleging that the easement was invalid and void, and that the Burgs were trespassing on her property through use of the easement. Dampier also placed signs around the area notifying neighbors of the lawsuit. The petition was dismissed by Dampier in mid-September 2002.
In 2003, the Burgs installed a 9-1/2 foot wide gravel driveway down the middle of the 50-foot wide easement.
In 2004, Graham began living on Tract 10 pursuant to an agreement to purchase the property from Dampier. 4 Graham kept horses, stabled horses for other individuals, and gave riding lessons, on Tract 10.
From at least 2002 until sometime in 2007, the Burgs maintained the entire 50-foot wide easement over Tract 10. This included maintenance of the gravel drive, mowing of the grass on either side of the gravel drive, and other basic maintenance.
In 2007, the Burgs began having conflicts with Graham regarding use of the easement. Mrs. Burg testified that she called Graham to inform her that the mowing season was about to start, and requesting that Graham remove trash she had placed in the easement. Graham then approached Mr. Burg to see if he could discharge the mowed grass sideways onto the
In April 2007, shortly after this conversation, Graham mowed a portion of the easement. A few days later, Mr. Burg mowed the easement. Graham called the Boone County Sheriffs department (“Sheriffs Department”) and reported that the Burgs were trespassing. Graham also claimed that Mr. Burg tried to run Graham and her boyfriend over with the brush hog. No formal charges were filed following the Sheriffs Department’s investigation of Graham’s accusation.
The Burgs’ issues with Graham continued throughout 2007. The Burgs testified that Graham’s horses frequently entered their yard, and would eat portions of their garden while leaving manure , on their property. Graham began to repeatedly place items in the easement area including trash, hay bales, horses, horse trailers, and parked vehicles. The Burgs testified that on several occasions these items were placed directly on the gravel driveway, requiring them to drive over the grass to reach Tract 9. The Burgs testified that this was especially dangerous in inclement weather because ruts had formed outside of the gravel driveway. Graham and/or Dampier also installed and maintained a fence along either side of the easement area which encroached at various points into the easement area by as much as 11 feet.
The Burgs wrote Graham a letter in September 2007, requesting that the obstacles and encroachments in the easement area, including the fence, be removed. Graham did not honor the Burgs’ request, and continued to place obstacles and encroachments in the easement area.
In September 2007, and shortly after receiving the Burgs’ letter, Graham called the Sheriffs Department and reported that one of her horses had been stolen. Graham claimed that Mr. Burg shot and killed the horse. The Sheriffs Department concluded that the horse ran through several barbed wire fences and injured herself. The investigating officer “did not observe any visible injuries which appeared to be from any type of weapon.”
The Burgs filed suit against Graham and Dampier in January 2008, in an effort to resolve the disputes over their right to use the easement over Tract 10.
In June 2008, Graham forwarded the Burgs a copy of a letter sent by Graham and Dampier to their counsel, Tom Schneider (“Schneider”). 5 Among other things, the letter advised that Graham and Dampier wanted to purchase Tract 1 to force the Burgs to access Tract 9 in a different way.
In August 2008, a no-trespassing sign was placed on Tract 10 warning “No mowing or other actions authorized. Civil action pending. All actions considered trespass and/or theft.” The notice listed Graham’s name and telephone number.
In August 2008, Graham sent a letter to the Burgs on behalf of herself and Dampier warning the Burgs that the easement had been negated, and that while the law
On October 25, 2008, Mrs. Burg entered the easement on her riding mower. Graham began yelling and cursing, warning Mrs. Burg to “stay off of my f* *ing grass.” When Mrs. Burg attempted to drive her mower forward, Graham stepped in front of the mower and put her foot under the front tire. Graham then yelled “I’m going to get x-rays and you’re going to pay.”
On October 28, 2008, Graham filed an adult abuse/stalking petition against the Burgs seeking an Ex Parte Order of Protection. Graham alleged that Mrs. Burg had run over her with a mower, that the easement over Tract 10 was negated, that the Burgs had intentionally destroyed fences on her property, that the Burgs were endangering her livestock, that the Burgs had shot and killed one of her horses, and that Mr. Burg had swerved in an attempt to hit horse riders in the easement. The Burgs denied all allegations in the petition, but upon advice of counsel, permitted the entry of an order which directed the parties to stay away from each other for six months.
On October 30, 2008, and again on October 31, 2008, Graham called the Sheriffs Department alleging that the Burgs were trespassing. The Burgs testified that a similar call was made every time they mowed the easement area.
In September of 2009, Graham approached Mark Stevenson (“Stevenson”), the owner of Tract l. 6 Stevenson testified that Graham approached him claiming that the Burgs were trespassing on her property and harassing her. Graham asked Stevenson to sign a Trespass Notice and Warning (“Trespass Notice”) notifying the Burgs that they had no right to use Tract 1. The Trespass Notice was prepared by Graham’s and Dampier’s attorney, Schneider. Stevenson signed the Trespass Notice, apparently unaware that the Burg’s had a recorded easement permitting their use of Tract 1. Stevenson was also unaware that the Burgs had a recorded easement over Tract 10. Stevenson signed the Trespass Notice because Graham told him that doing so would solve her problems with the Burgs. Graham and Dampier then caused the Trespass Notice to be recorded against Tract 9. Mr. Burg testified that the recordation of the Trespass Notice reduced the value of Tract 9 to $0.00, as no one would purchase Tract 9 unless there was a right to use Tract 1 to access North Tucker School Road.
Graham filed a second adult abuse/stalking petition against Mr. Burg in September 2009. Graham alleged that Mr. Burg had been tearing down her fences, interfering with her livestock and business, and that Mr. Burg purposefully tried to scare riders in the easement.
In October 2009, the Burgs filed a second amended petition. Count I sought to eject Dampier and Graham to the extent either or both were placing obstacles in the easement area. Count II alleged private nuisance, claiming that the actions of Dampier and Graham constituted a private nuisance defeating the Burgs’ ability to use and enjoy the easement area. Count III alleged abuse of process against Graham in connection with the two efforts to secure Ex Parte Orders of Protection. Count IV alleged that Dampier and Graham directly, or through their agent Tom Schneider, slandered the Burgs’ title by
The Appellants filed an answer to the second amended petition. The Appellants alleged as affirmative defenses that the easement over Tract 10 had terminated or been extinguished by adverse possession and/or non-use. The Appellants alleged in the alternative that the Burgs’ right to use the easement was limited to the 9-1/2 foot wide gravel driveway. The Appellants alleged that the Tract 10 easement had been extinguished because of the Trespass Notice prohibiting the Burgs’ use of Tract 1. The Appellants did not allege that they acquired their respective interests in Tract 10 without actual or constructive notice of the recorded easement over Tract 10.
Appellants also asserted joint counterclaims for adverse possession; for ejectment of the Burgs from Tract 10 and Tract 1; for property damage and related loss of income due to the Burgs 2002 removal of the fence on the northern property line of Tract 10; and for damage to two permanent electric waterers located in the easement area. Graham separately asserted additional counterclaims for trespass, assault and battery, and to recover the cost of a survey.
A bench trial was held on June 15 and June 16, 2010. The Burgs testified that they had become fearful based on all of the aforesaid incidents. Mrs. Burg will no longer walk her dog across the easement to collect her mail. Mr. Burg testified that a wedding which had been planned on Tract 9 was cancelled because the Burgs feared having guests use the easement over Tract 10. The Burgs testified that their ability to use and enjoy their property has been substantially affected by the Appellants’ actions.
The trial court heard testimony from Dampier, Graham, and five witnesses for the defense. Dampier acknowledged that she purchased Tract 10 in 2001, subject to easements of record. Dampier identified the conveyance deeds in the chain of title for Tract 10 back through the point of conveyance from the Developers to Teresa Robinson (“Robinson”) and Carol Maher (“Maher”). The deed from the Developers to Robinson and Maher expressly reserved the 50-foot wide perpetual, non-exclusive roadway and utility easement in favor of Tract 9 and running generally north and south across Tract 10, using the same language to describe the easement as appeared in the general warranty deed from the Developers to the Burgs. Each deed thereafter in the chain of title for Tract 10 excepted easements of record from the title conveyed. Notwithstanding, Dampier testified that she did not believe the easement to be valid, and confirmed that she had several discussions with Graham about her belief that the easement was not valid.
On October 8, 2010, the trial court entered its judgment (“Judgment”). The Judgment found in favor of the Burgs and against Dampier and Graham on Count I (ejectment) and ordered Dampier and Graham to “remove all obstacles and encroachments within the easement area across Tract 10 ... and to refrain from any future such encroachments which interfere with [the Burgs’] use and enjoyment of the easement.”
The Judgment found in favor of the Burgs and against Dampier and Graham on Count II (private nuisance), and ordered Dampier and Graham “to refrain from actions which impair or obstruct [the Burgs] in their use and enjoyment of their easement across Tract 10 and conduct which serves to threaten, harass, annoy, or burden [the Burgs] in their maintenance, use, and enjoyment of the easement area.”
On Count IV (slander of title), the Judgment found the Trespass Notice was not legal or valid and did not constitute a cloud on the title and rights of the Burgs to the easement granted across Tract 1.
The Judgment found in favor of Graham and Dampier on Counts III and V (abuse of process and civil conspiracy, respectively)-
The Judgment found in favor of the Burgs as to all of the counterclaims asserted by Dampier and Graham.
The Appellants filed this timely appeal.
Issues on Appeal
Appellants raise six points on appeal. All six points relate to the trial court’s Judgment on Count II, the private nuisance claim.
In Point One, Appellants maintain that the trial court’s entry of an injunction ordering them to refrain from conduct threatening, harassing, annoying, or burdening the Burgs’ maintenance, use, and enjoyment of the easement erroneously impairs their right to use the easement as owners of the servient tract, Tract 10. In Point Two, Appellants maintain that the trial court’s order that they refrain from conduct threatening, harassing, annoying, or burdening the Burgs’ maintenance, use, and enjoyment of the easement is too vague and overbroad to be enforceable. In Point Three, Appellants maintain that there was no substantial or competent evidence to support an award of damages in the amount of $5,000.00 for nuisance. In Point Four, Appellants maintain that the trial court erred in entering judgment in favor of the Burgs for nuisance because none of the acts complained of involved Appellants’ “use of their property or any instrumentality, nor did the complained-of acts interfere with [the Burgs’] use and enjoyment of their property.” In Point V, Appellants maintain that the trial court erred in entering judgment in favor of the Burgs for nuisance because there was no evidence that permanent or temporary obstacles located in the easement area interfered with the Burgs’ ingress and egress. In Point VI, Appellants maintain that the trial court erred in entering a joint and several judgment for nuisance damages against Graham and Dampier because “none of the complained-of acts (except for maintenance of the ‘obstacles’) were alleged to have been done by [Dampier], nor could such acts be imputed to her.”
Appellants have not contested the trial court’s judgment in favor of the Burgs for ejectment (Count I), the trial court’s declaration of the invalidity of the Trespass Notice (Count IV), or the trial court’s rejection of the Appellant’s counterclaims.
Standard of Review
In reviewing a court tried case, we will affirm the judgment of the trial court unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.
Murphy v. Carrron,
Point One
In their first point on appeal, the Appellants maintain that the trial court’s entry of an injunction directing that they refrain from conduct threatening, harassing, annoying, or burdening the Burgs’ maintenance, use, and enjoyment of the easement erroneously impairs their right to use the
An easement is a non-possessory interest in the real estate of another. The interest is not an interest in title, but confers a right of one person to use the real estate of another for a general or specific purpose.
Farmers Drainage Dist. of Ray Cnty. v. Sinclair Refining Co.,
Easements are either “appurtenant” or “in gross.” An easement appurtenant creates a dominant tenement (the land which benefits from the easement) and a servient tenement (the land which is burdened by the easement).
Gardner v. Maffitt,
Here, the easement over Tract 10 granted by the Tract 9 general warranty deed was an easement appurtenant. It created a dominant tenement (Tract 9) which will perpetually benefit from the easement over the servient tenement (Tract 10). The easement was created for a specific purpose — for roadway and utility use.
A “roadway” easement has been construed to afford a right of ingress and egress over a servient tenement.
Reiser v. Hensic,
Though the Appellants contested the validity of the easement at trial, they do not contest on appeal the trial court’s determination that Tract 9 was granted a perpetual roadway and utility easement over Tract 10, and that said easement remains in force and effect.
7
Instead, the Appellants argue in their point relied on that the trial court’s entry of an injunction ordering them to refrain from conduct impacting the Burgs’ use, enjoyment and maintenance of the easement has the effect of depriving them of any right to use the easement. The Appellants further assert
in the argument portion of their brief
that
We address the second argument first. Appellants Point Relied On One asserts no claim of error, directly or indirectly, based on the trial court’s purported failure to modify the express grant of an easement over Tract 10 by narrowing the easement from 50 feet to 9-1/2 feet-affirmative relief sought by Appellants at trial. Arguments advanced in the brief but not raised in the point relied on are not preserved, and will not be addressed by this court. Rule 84.04(e);
Rea v. Moore,
Even were we to reach this non-preserved issue, Appellants would not prevail. There is authority for judicial crafting of the contours and dimensions of an otherwise unspecified roadway easement based on a determination of what is reasonably necessary to permit the specific use intended by the easement—ingress and egress.
See, e.g., DiPasco v. Prosser,
Appellants’ reliance on
Baum v. Glen Park Properties,
The result in
Baum I
does lead us naturally to the argument advanced by Appellants which was preserved in their point relied on — whether the trial court’s injunction ordering that they refrain from conduct interfering with the Burgs’ use, enjoyment and maintenance of the easement deprives them of any right to use the easement. The Appellants correctly point out that the easement over Tract 10 is a
non-exclusive
roadway and utility easement. Generally, where an easement is non-exclusive, the owners of the servient tenement may use the easement as long as that use does not substantially interfere with the dominant tenement’s reasonable use of the easement.
Maasen v. Shaw,
Employing this general test, and considering the substantial and competent evidence regarding the conduct of Dampier and Graham, we easily conclude that the trial court correctly held that Dampier and Graham substantially interfered with the Burgs’ maintenance, use, and enjoyment of the easement. Clearly, Dampier and Graham were not happy about the presence of
There is an even more compelling explanation for the nature of the injunctive relief entered by the trial court on Count II. In fashioning the injunction, the trial court necessarily took into consideration the
express grant
of the easement in the Burgs’ general warranty deed, which prohibits “cross-fencing, gates
or other obstructions
” from being placed in the easement area. (Emphasis added.) When an express grant of an easement defines the scope of the easement and correspondingly limits the use of the easement by others, the express terms of the grant are to be enforced.
Bedard,
In this critical respect, the case before us is materially distinguishable from
Baum I, Tsevis,
and
Maasen.
Those cases also involved roadway easements where the dimension of the easement had been specifically defined by the terms of the grant. However, the grant of the easements in those cases
did not
include language expressly restricting the manner in which the easement could be used by the owner of the servient tenement. It is only when an easement is silent regarding restrictions on its use that the court must resort to determining the “reasonableness” of the use by the owner of the servient tenement.
Bedard,
The trial court’s injunction directing Appellants to refrain from conduct threatening, harassing, annoying, or burdening the Burgs’ use, enjoyment, and maintenance of the easement is thus consistent with the law and with the intent of the Developer and the Burgs in creating the easement over Tract 10 as reflected by the express terms of the grant.
10
Notwithstanding Appellants’ suggestion to the contrary, the trial court’s order does not prohibit the Appellants from using the easement. Rather, it restricts the Appellants’ use to conduct which does not substantially interfere with the Burgs’ use — a fact driven inquiry which will necessarily take into consideration the express terms of the grant of the easement, which prohibits the placement of cross-fencing, gates, or other obstructions in the easement area. Consistent with our conclusion, we remind that Appellants did not appeal the injunctive relief entered by the trial court in favor of the Burgs on Count I for ejectment, which ordered the Appellants to “remove all obstacles and en
Point One is denied.
Point Two
In their second point on appeal, Appellants maintain that the trial court’s order that they refrain from conduct threatening, harassing, annoying, or burdening the Burgs’ maintenance, use, and enjoyment of the easement is too vague and overbroad to be enforceable. We disagree.
We review the trial court’s grant of an injunction pursuant to the standards set forth in
Murphy v. Carron,
Here, given the particular facts, circumstances, and equities of this case, we do not believe that the trial court abused its discretion in shaping and fashioning in-junctive relief. The conduct of the Appellants which interfered with the Burgs’ maintenance, use, and enjoyment of the easement over Tract 10 does not fit neatly into definable categories. All of the conduct was, however, clearly designed to threaten, harass, annoy, or burden the Burgs’ maintenance, use, and enjoyment of the easement, and in fact appeared to have been motivated by a desire to negate the validity of the easement. The trial court cannot be expected to anticipate, describe, and prohibit every imaginable act the Appellants might engage in which would constitute threatening, harassing, annoying, or burdensome conduct.
We are not persuaded, therefore, by Appellants’ assertion that they will be unable to figure out what conduct will violate the terms of the injunction. The general terms of the injunction are not materially different from the generalized legal standard applied in the absence of an injunction to determine whether a ser-vient tenement owner’s use of an easement “substantially interferes” with the dominant tenement. In either case, the trial court will be required to make a factual finding about the propriety of Appellants’ specific future conduct.
Given the evidence in this case, we believe the Appellants’ professed confusion about the scope of the injunction is disingenuous. Should future conduct by the Appellants present a specific unanticipated concern about the scope of the injunction, the trial court will remain free to modify or clarify its terms accordingly.
See Edmunds v. Sigma Chapter of Alpha Kappa Lambda Fraternity, Inc.,
Point Two is denied.
In their third, fourth, and fifth points on appeal, Appellants collectively maintain that there was no substantial or competent evidence presented in connection with the Burgs’ private nuisance claim to support: (i) the conclusion that Appellants’ use of the easement interfered with the Burgs’ use and enjoyment of the easement (point four); (ii) the conclusion that temporary or permanent obstacles in the easement area interfered with the Burgs’ use and enjoyment of the easement (point five); or (iii) the award of damages in the amount of $5,000.00 (point three). We disagree.
As we have noted, Appellants have not contested the trial court’s Judgment in favor of the Burgs on Count I for ejectment, a judgment which necessarily required the trial court to find that the Appellants substantially interfered with the Burgs’ use and enjoyment of the easement, and/or engaged in conduct expressly prohibited by the written grant of the easement, by placing obstacles and encroachments (whether temporary or permanent) in the easement area. Certainly, substantial and competent evidence was presented supporting this conclusion, as is reflected by our outline of the Appellants’ conduct,
supra.
That same uncontested finding applies equally to support the trial court’s Judgment in favor of the Burgs on Count II for private nuisance. In Missouri, “[interference with or obstruction of an easement is a [per se] nuisance.”
Mondelli v. Saline Sewer Co.,
Appellants argue alternatively that even if a private nuisance was established by the evidence, the trial court’s award of damages in the amount of $5,000.00 was not supported by substantial and competent evidence.
Before awarding actual general damages for a private nuisance, it is necessary to determine whether the injury from the nuisance is temporary or permanent, as the measure of general damages is impacted. If the injury from the nuisance is permanent, the measure of general damages is the diminution in the market value of the land, i.e. the difference in the value of the land before and after the nuisance arose.
Bartlett v. Hume-Sinclair Coal Mining Co.,
The private nuisance created by the Appellants’ conduct was by its nature temporary. If
general
damages were to be awarded, therefore, the Burgs’ were required to establish that they suffered a reduction in the rental or usable value of Tract 9 during the continuance of the nuisance. Appellants argue that no such evidence was offered by the Burgs. We disagree. The conduct of the Appellants included their effort to secure the Tres
In any event, as noted, evidence of a reduction in the rental or usable value of Tract 9 was not required as a pre-condition to finding a private nuisance, as the trial court was free to award nominal damages and any special damages supported by the evidence. We agree with Appellants that $5,000.00 would not be a nominal damage award.
See Simpkins v. Ryder Freight System, Inc.,
The Judgment does not identify whether the damages awarded were general, nominal, or special damages. Nor was the Judgment required to identify the category or categories within which the monetary award fell, as no party timely requested findings of fact and conclusions of law on the issue of damages as would have been permitted by Rule 78.01. As such, we will uphold the trial court’s award of damages if it can be supported on any legal theory.
Hutchison v. Cannon,
Point Five is denied.
Point Six
In their sixth and final point on appeal, the Appellants maintain that the trial court erred in entering a $5,000.00 joint and several judgment on the nuisance claim because “none of the complained of acts were ... done by” Dampier. We disagree.
Viewing the evidence in the light most favorable to the Judgment, Dampier did interfere with and obstruct the Burgs’ right to use the easement. Dampier initiated her own lawsuit challenging the legal validity of the easement. Dampier placed and maintained the permanent waterers in the easement area. Dampier was working cooperatively with Graham to challenge the validity of the easement, evidenced by ■written communications directed to the Burgs in 2008. Dampier and Graham took the position in correspondence that their collective interests were being impacted by the Burgs’ use of the “invalid easement.” Dampier testified that she had several conversations with Graham about the validity of the easement, consistent with an active participation in the ongoing campaign to harass the Burgs and to interfere with their maintenance and use of the easement.
11
Graham and Dampier filed joint counterclaims for adverse possession, for ejectment of the Burgs as to both Tract 10 and Tract 1, for property damage and related loss of income associated with the
“An action for private nuisance rests on tort liability.”
Peters v. ContiGroup,
Point Six is denied.
Conclusion
The judgment of the trial court is affirmed. 12
All concur.
Notes
. We view the facts in the light most favorable to the trial court's judgment.
Asamoah-Boadu v. State,
.The parties agreed during oral argument that the easement had been crafted in this manner because the Burgs also wanted to retain the ability to further subdivide Tract 9 which would have required an area 50 feet in width to construct a public roadway to the prospective subdivision based on Boone County, Missouri’s development requirements.
. The record indicates Dampier had located two electric waterers on the easement for use by livestock.
. Graham and Dampier entered into a contract for deed permitting Graham to pay for Tract 10 by installments. Dampier remained the record owner of Tract 10, however.
. Schneider had been Dampier’s attorney in 2002, when Dampier filed suit against the Burgs seeking to invalidate the easement over Tract 10.
. Somewhere along the way, and in a manner that is not fully explained in the record, ownership of Tract 1 was obtained by Just Waved, L.L.C. Stevenson is the sole member of Just Waved, L.L.C.
. Although the Judgment does not reflect express findings to this effect, such findings are necessary implications of the trial court’s entry of Judgment in favor of the Burgs on Count I and Count II of their second amended petition.
. We refer to this case as Baum I to avoid confusion as following remand, a second appeal was taken resulting in a second reported opinion with the identical case name.
. On remand, the trial court "found that twenty (20) feet of the easement should be used for road purposes and the roadway should be located on the northern portion of the land."
Baum v. Glen Park Properties,
. The trial court acted within its authority in entering injunctive relief to address the private nuisance created by Appellants' conduct. Injunctive relief is an appropriate remedy in response to a claim of nuisance where a remedy at law would be inadequate.
Tichenor v. Vore,
. This observation is not inconsistent with the trial court’s rejection of the Burgs’ civil conspiracy claim against Graham and Dampier involving the right to use Tract 1.
. This Opinion effects title to real estate, specifically Tract 1, Tract 9, and Tract 10 identified on that certain Survey recorded of record at Book 702, Page 646 in the Office of the Boone County Recorder of Deeds. We will leave to the Burgs the task of duly noting this Opinion on the real estate records upon the issuance of our mandate.