575 S.W.2d 213 | Mo. Ct. App. | 1978
Easement case. This litigation involves plaintiffs Meinhardts’ and Fisks’ right to travel over a 30 foot section of a private driveway extending over defendants’ land in order to reach a public roadway. The trial court heard the evidence and denied plaintiffs’ request to enjoin defendants’ interference with such use and sustained defendants’ counterclaim for quiet title. The court’s judgment specifically found that “no easement by prescription or implication exists on behalf of these plaintiffs in said driveway.” We affirm.
The property in question was owned as an entirety by the Weicherts prior to 1958. They had one entrance leading onto the adjoining county highway which was connected to their farmhouse by a dirt road. In that year they conveyed 6 of their 60 acres to the Meinhardts. The Meinhardts conveyed part of their property to the Fisks in 1961. Plaintiffs and their tenants use the Weicherts’ highway entrance and a section of dirt road (about 30 feet altogether) to reach an adjoining road leading across their own property. In 1968 the Weicherts conveyed the remainder of their farm (54 acres), including their house and the section of dirt road which plaintiffs had been using, to the defendants. The defendants subsequently took steps to block plaintiffs’ use of the entrance and road on their property.
To obtain an easement by prescription, plaintiffs had the burden to establish an adverse use for ten years under a claim of right with notice to the owner of the character of the claim. George v. Dickinson, 504 S.W.2d 658, 662-663 (Mo.App.1974). On the facts of this case we need only discuss the element of adversity. ,
An adverse use of another’s land has been defined as a use not made in subordination to the owner. Dalton v. Johnson, 320 S.W.2d 569, 573 (Mo.1959). An adverse user does not recognize in the owner of the servient estate an authority either to permit or prevent the continued exercise of the use. A key factor in determining adversity
On the record presented here we conclude there is sufficient evidence to support a finding that plaintiffs’ use of the driveway was permissive and not adverse. In a court-tried case we will uphold the judgment unless it is not supported by substantial evidence, or is against the clear weight of the evidence, or erroneously declares or applies the law. With regard to issues turning on the credibility of a witness, an appellate court defers to the superior position of the trial court to make such judgment. Cook v. Lodes, 560 S.W.2d 64, 65 (Mo.App.1977).
The issue of the Meinhardts’ understanding as to the nature of their use of the driveway at the time they purchased the property from the Weicherts reduces to an issue of credibility. Plaintiff, Irven Mein-hardt, testified that, while nothing was said about an easement, “[i]t was just an established road and it was used by all of us.” He stated that the only discussion he had with Mr. Weichert (deceased at time of trial) was on widening the entrance to the drive and installing a culvert.
Plaintiffs seek to establish an easement by implication on the basis of pre-ex-isting use arising from the severance of adjoining properties by a common owner.
There was sufficient evidence from which the court could conclude that the Weicherts and Meinhardts did not intend to create a permanent easement over what is now defendants’ property. At the time of the conveyance in 1958 the Weicherts sold to Meinhardts only 6 acres of their 60 acre farm. The 6 acres, however, has almost 700
The law does not favor the implication of easements in view of the restriction it places on the free use of land. Such an easement must be established by clear, cogent and convincing evidence. We conclude that the evidence presented supports the judgment of the trial court. See Pendleton v. Gundaker, 381 S.W.2d 849, 851-852 (Mo.1964).
The judgment is affirmed.
. The Meinhardts did purchase and, with Mr. Weichert, install a culvert at the entrance to the drive. They cite this to establish that “the use was intended to be of a permanent nature.” That act is not conclusive on the nature of the plaintiffs’ use of the property, nor does it contradict other testimony that this use of the property was permissive. Mrs. Weichert’s testimony indicated that the culvert helped to prevent the county road from washing out, and thus would have been beneficial to plaintiffs even had they subsequently built their own driveway.
. The parties agreed that the elements of such an easement are (1) unity and subsequent separation of title; (2) obvious benefit to the dominant estate and burden to the servient estate existing at the time of conveyance; (3) use of the premises by the common owner in their altered condition long enough before the conveyance and under such circumstances as to show the change was intended to be permanent; and (4) reasonable necessity for the easement. Dickey v. Leach, 481 S.W.2d 524, 526 (Mo.App.1972).