9.33 Rights and Scope

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

E. (§9.33) Rights and Scope

The rights of an easement owner and the scope of an easement are often-litigated and problematic areas of easement law. The easement owner has the right to use and enjoy the easement to the fullest extent possible not inconsistent with the rights of the servient estate owner. See Branson W., Inc. v. City of Branson, Mo., 980 S.W.2d 604, 606 (Mo. App. S.D. 1998) (citing 25 Am. Jur. 2d Easements and Licenses § 81 (1996)), which provides:

"Though to the extent of the easement the rights of the easement owner are paramount to those of the landowner, the rights of the easement owner and of the landowner are not absolute, irrelative, and uncontrolled; but are so limited, each by the other, that there may be a due and reasonable enjoyment of both the easement and the servient tenement. The owner of an easement is said to have all rights incident or necessary to its proper enjoyment, but nothing more.

And, if the easement owner exceeds his rights either in the manner or in the extent of its use, he becomes a trespasser to the extent of the unauthorized use."

Missouri cases echo the above principles.

In Missouri Public Service Co. v. Argenbright, 457 S.W.2d 777, 783 (Mo. 1970) (emphasis added), the Court said that "an easement granted . . . in general terms without any limitations as to its use, is one of unlimited reasonable use." See also Segraves v. Consol. Elec. Coop., 891 S.W.2d 168, 171 (Mo. App. E.D. 1995).

Block v. Gallagher, 71 S.W.3d 682 (Mo. App. E.D. 2002), reiterates the rights of the dominant estate owner to use the easement to further any lawful use of their land. Block also lists many of the cases supporting changes in use or increases in use. Generally, an easement owner may make only such use of an easement as is reasonably necessary to accomplish the purpose of the easement. See Bedard v. Scherrer, 221 S.W.3d 425 (Mo. App. W.D...