9.28 Permissive Use

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

e. (§9.28) Permissive Use

The primary obstacle to the creation of an easement by prescription is the defense of permissive use. Mere permissive use of land does not ripen into an easement. See Shapiro Bros., Inc. v. Jones-Festus Props., L.L.C., 205 S.W.3d 270, 274 (Mo. App. E.D. 2006) (citing Reardon v. Newell, 77 S.W.3d 758, 761 (Mo. App. S.D. 2002)). An overt act giving notice of the change of the character of the use is needed for prescription. See Cook v. Bolin, 296 S.W.2d 181 (Mo. App. S.D. 1956); Meinhardt v. Luaders, 575 S.W.2d 213, 215 (Mo. App. E.D. 1978). But see Roberts Pallet Co. v. Molvar, 955 S.W.2d 586, 588 (Mo. App. S.D. 1997) (the prior owner had permission, but the current owners were not given permission).

The burden of proof to show "permissive use" is on the defendant. Speer v. Carr, 429 S.W.2d 266, 268 (Mo. 1968); Fassold v. Schamburg, 166 S.W.2d 571 (Mo. 1942); see also Kuhlman v. Stewart, 221 S.W. 31 (Mo. 1920). After a prescriptive easement has been established by adverse use, permission given or requested does not obliterate the previously vested right. See:

· Phillips v. Sommerer, 917 S.W.2d 636...