6.9 Abandonment and Vacation

• Library: Real Estate Practice Deskbook (2019 Ed.)

B. (§6.9) Abandonment and Vacation

Once an easement is established, it is not abandoned or destroyed by mere nonuse or by the use of another means of ingress and egress. Sanderson v. Less, 296 S.W.2d 81, 84 (Mo. 1956); see also Soderholm v. Nauman, 409 S.W.3d 382, 392–94 (Mo. App. W.D. 2013). Even failure to use will not by itself necessarily constitute an abandonment. Dalton v. Johnson, 320 S.W.2d 569, 574 (Mo. 1959). Absent an express abandonment, the evidence must support an intent to abandon. An abandonment is proved by an intention to abandon as well as the conduct by which the intention is put into effect. Hennick v. Kansas City S. Ry. Co., 269 S.W.2d 646, 650 (Mo. 1954). The abandonment, however, must be proved by clear and convincing evidence. Id. There must be relinquishment of possession with intent to terminate the easement. Id. In the absence of evidence of intent to abandon, a claim of abandonment of a prescriptive easement cannot be successfully asserted. Neale v. Kottwitz, 769 S.W.2d 474, 476 (Mo. App. S.D. 1989).

In Dodge v. Wiles, 766 S.W.2d 695 (Mo. App. S.D. 1989), the plaintiff sought an injunction to keep the defendants from obstructing a public road. The defendants, contending that the road had been abandoned, had the burden of proof on the...