Easement Creation and Abandonment
Easements grant a right to use another’s real property. An easement can be appurtenant or in gross. An easement appurtenant attaches to and passes with the conveyance of land even though it may not be specifically mentioned in a conveyance/deed. Stroup v. Johnson, 539 S.W.2d 711, 713 (Mo. Ct. App. 1976). An easement in gross, on the other hand, conveys a personal interest or right to use the land of another independent of ownership or possession of the land. Henley v. Continental Cablevision of St. Louis Cnty, Inc., 692 S.W.2d 825, 827 (Mo. Ct. App. 1985).
There are typically four (4) main ways to create an easement. The first method (and by far the most common) is to create an easement expressly. This can often be done via an easement deed. Easement deeds require (1) party names, (2) words of grant, (3) description of the property, (4) execution and delivery by the grantor, and (5) acceptance by the grantee. Kindred v. City of Smithville, 292 S.W.3d 420, 426-27 (Mo. Ct. App. 2009). The other ways in which an easement can be created is (2) by necessity, (3) implication from pre-existing use, or (4) prescription/adverse possession.
Often times easements are quite old and can get lost in the shuffle of real estate recordings. For this reason, courts are not inclined to favor the forfeiture of easements. Loumar Development Co. v. Redel, 369 S.W.2d 252, 257 (Mo. 1963). A purchaser of land typically takes the land subject to duly recorded easements. One of the most common areas of easement litigation is easement abandonment. Easement abandonment, if proven, terminates the existence of the easement. To prove abandonment, there must be non-use coupled with decisive and conclusive acts indicating a clear intent to permanent abandon. Baker v. Walnut Bowls, Inc., 423 S.W.3d 293 (Mo. Ct. App. 2014).
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