Maasen v. Shaw, No. ED 82750.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Kathianne Knaup Crane
• Citation: 133 S.W.3d 514
• Parties: Paul B. MAASEN and Cindy Maasen, Plaintiffs/Appellants, v. Peter M. SHAW, Defendant/Respondent.
• Docket Number: No. ED 82750.
• Decision Date: 27 April 2004

133 S.W.3d 514 Paul B. MAASEN and Cindy Maasen, Plaintiffs/Appellants,
v.
Peter M. SHAW, Defendant/Respondent. No. ED 82750. Missouri Court of Appeals, Eastern District, Division Two. April 27, 2004.

[133 S.W.3d 516]

Douglas P. Dowd, James R. Dowd, Laura G. Lumaghi, Dowd & Dowd, P.C., St. Louis, MO, for appellants.

Joel B. Eisenstein, St. Charles, MO, for respondent.

KATHIANNE KNAUP CRANE, Judge.

Plaintiffs, owners of a servient estate, filed a lawsuit seeking to enjoin defendant, owner of the dominant estate, from using a fifty-foot non-exclusive easement across the servient estate for purposes other than ingress and egress on a fifteen-foot roadway to defendant's property. Defendant filed a counterclaim to recover damages. The trial court enjoined defendant's use of all-terrain vehicles on the non-roadway portion of the easement, but denied plaintiffs' requests that defendant be enjoined from widening the roadway, paving the roadway, cutting down trees on the non-roadway portion, cutting grass on the non-roadway portion, or parking construction and personal vehicles on the easement, and held that defendant could widen the roadway at his expense within the fifty-foot easement. The trial court also entered judgment in plaintiffs' favor on defendant's counterclaim. Plaintiffs appeal.

On appeal plaintiffs assert that the trial court erroneously declared the law in that it allowed the defendant to use and control the servient estate in ways not recognized by Missouri law. They also claim the court erred in denying plaintiffs' motion for leave to amend their petition to request a reduction in the size of the easement, and in granting defendant the right to expand and pave the roadway up to fifty feet. Defendant has not filed a respondent's brief. We reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

The determinative facts are not disputed. O.H. Hesterberg & Sons, Inc., conveyed a forty-acre tract of land, in St.

133 S.W.3d 517

Charles County, Missouri, along with a thirty-three foot wide easement¹, to Roger Karrenbrock and Janet Karrenbrock on November 30, 1993. On June 2, 1994, Mr. and Mrs. Karrenbrock conveyed twenty acres of this tract (north parcel) to David F. Vetor and Marianne C. Vetor by general warranty deed. The deed also conveyed "[a] non-exclusive easement 50 feet wide," which ran along the east boundary of the remaining twenty acres of the original tract (south parcel). This easement, which was 670 feet long, provided access from the north parcel across the south parcel to the thirty-three foot easement that provided access to Oberhelman Road. On October 17, 1994, Mr. and Mrs. Karrenbrock conveyed the south parcel to plaintiffs, Paul B. and Cynthia A. Maasen, subject to the non-exclusive fifty-foot easement across the south parcel. Plaintiffs built a house on the south parcel. In 1995, Mr. Vetor and Mr. Maasen constructed a fifteen-foot wide gravel road on the easement, sharing the cost. This road ran approximately parallel to the eastern boundary of the easement. After the road was constructed, it was used as a roadway for travel over the easement. The remainder of the easement was left in its natural state. The gravel roadway is the only access to the north parcel, and is also used by plaintiffs for access to their home on the south parcel.

Mr. and Mrs. Vetor conveyed the north parcel to a trustee by deed of trust to secure payment of a note. They defaulted, and the trustee sold the north parcel to the lender by a trustee's deed. On November 2, 1999, the lender conveyed the north parcel by general warranty deed to defendant, Peter M. Shaw.

Until April, 2001, the non-exclusive fifty-foot easement had not been used for any purpose other than ingress and egress. After April, 2001, defendant began mowing the non-roadway portion of easement on the south parcel, and stored shrubs, trees, and vehicles in the easement area in connection with landscaping the north parcel. Defendant's family and guests also drove all-terrain vehicles on the non-roadway portion of the easement. Defendant parked his personal vehicles on the easement, and allowed construction vehicles engaged in construction projects on the north parcel to park on the non-roadway portion of the easement. Mr. Maasen testified that defendant threatened to cut down a tree on the non-roadway portion of the easement, and also threatened to widen the gravel roadway by twenty-five feet. Defendant testified that he wanted to clean up the non-roadway portions of the easement by removing brush, debris, gravel, and logs, mowing and planting grass, and landscaping in order to enhance the property and make it safer. Defendant also testified he wanted his children and guests to continue to drive all-terrain vehicles on the non-roadway portions of the easement.

Plaintiffs filed a petition for injunction, requesting that defendant be enjoined from widening the roadway, paving the roadway, cutting trees on the easement or using the easement for any purpose other than ingress and egress as a roadway to his home. After a bench trial, the court entered its findings of facts, conclusions of law, and judgment. It concluded: "When a grantee's rights are designated nonexclusive, it is anticipated that an easement area will serve multiple purposes." It further concluded:

133 S.W.3d 518

It follows that Shaw may widen the existing approximate 15-foot roadway, at his expense, as long as the roadway remains within the existing 50-foot easement. Shaw may also maintain the property within the easement, including cutting and trimming of trees, grass and other plants and bushes and may clean the easement. Further, Shaw may use the easement to reasonably and temporarily park personal vehicles or construction vehicles, when necessary for repair or improvement to Shaw's property, on the unpaved portion of the easement, provided that no portion of the paved roadway is blocked.

The court enjoined defendant only from using the non-roadway portion of the easement for recreation by traveling on it with all-terrain vehicles.

We review the judgment in an injunction action under the standard set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Id. See Macios v. Hensley, 886 S.W.2d 749, 752 (Mo.App.1994).

1. Rights of Use in Non-exclusive Easement

For their first point plaintiffs contend that the trial court erred in holding that a "non-exclusive easement" means that the area subject to an easement will serve "multiple purposes" and, as a result, the dominant owner can use the easement property for parking and storage and can cut trees, bushes and grass on the easement. We agree.

The trial court misdeclared the law in concluding that the conveyance of a "non-exclusive" easement meant that the easement area would serve "multiple purposes," and thus allow the servient owner to park and store items on the non-roadway portions of the easement and to cut trees and other vegetation. The term "non-exclusive," in reference to an easement, does not refer to the purposes for which the dominant owner may use the easement, but to the servient owner's right to use the easement. When a grantor conveys a "non-exclusive" easement, the servient owner retains the privilege of sharing the benefits conferred by the easement. Henley v. Continental Cablevision, 692 S.W.2d 825, 827 (Mo.App.1985). In contrast, an "exclusive" easement refers to the exclusion of the servient tenement from participation in the rights granted to the dominant owner. Id. at 828.

This case raises the issue of what uses a dominant owner can make of the land subject to an easement when the deed does not specify either the purpose of or the uses for the easement, and it requires application of the doctrine of "unlimited reasonable use." When an easement is granted in general terms without restrictions on use, the easement is one of unlimited reasonable use. Missouri Public Service Company v. Argenbright, 457 S.W.2d 777, 783 (Mo.1970). "Under the doctrine of unlimited reasonable use, the scope of an easement unspecified in a grant is regarded as unlimited insofar as it is reasonable in relation to the object of the easement." 28A C.J.S. Easements Section 160 (1996).

Thus, to...