9.34 Transfer, Termination, and Abandonment

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

F. (§9.34) Transfer, Termination, and Abandonment

An appurtenant easement is transferred with the dominant tenement whether or not it is mentioned as a part of that transfer. See Beldner v. Gen. Elec. Co., 451 S.W.2d 65, 75 (Mo. 1970). See also:

• Knox County Stone Co. v. Bellefontaine Quarry, Inc., 985 S.W.2d 356, 362 (Mo. App. E.D. 1998)

• Three-O-Three Invs. Inc. v. Moffitt, 622 S.W.2d 736, 739–40 (Mo. App. W.D. 1981)

• Stroup v. Johnson, 539 S.W.2d 711, 712 (Mo. App. E.D. 1976)

When the appurtenant easement exists, however created, it passes with the dominant tenement unless it is expressly extinguished. See:

· Knox County Stone, 985 S.W.2d at 362

· Three-O-Three Invs., 622 S.W.2d at 739–40

· Stroup, 539 S.W.2d at 712

But the grantor may not reserve it and retain it independent of the dominant estate. See:

· Knox County Stone, 985 S.W.2d at 362

· Three-O-Three Invs., 622 S.W.2d at 739–40

· Stroup, 622 S.W.2d at 712

In discussing the difference between a reservation and an exception, the Supreme Court of Missouri stated that "[a]n exception in a deed is always a part of a thing in being, and a part of the thing granted, while a reservation is of a thing not in being, and is newly created, as rents and the like." Snoddy v. Bolen, 25 S.W. 932, 933 (Mo. banc 1894). In a deed, "'a reservation is the creation, in behalf of the grantor, of some new right issuing out of the thing granted—that is to say, something which did not exist as an independent right.'" Dozier v. Toalson, 79 S.W. 420, 422 (Mo. 1904) (quoting Snoddy, 25 S.W. at 933). Accordingly, an easement may be created by reservation. The easement could not exist before the deed and is newly created by the deed. An easement so created is equivalent, for the purposes of creation of the easement, to an express grant of the easement by the grantee. See Robins v. Wright, 53 S.W.2d 1046, 1049 (Mo. 1932).

As noted in §§9.10 and 9.12 above, respectively, easements in gross may be assigned, and exclusive easements in gross may be apportioned, which is to say licensed. See, e.g., Henley, 692 S.W.2d 825, 827 (Mo. App. E.D. 1985).

Also, if the dominant tenement is partitioned, each grantee of a part of it acquires the right to use appurtenant easements. See Rogers v. Brockland, 889 S.W.2d 827, 831 (Mo. banc 1994); Fortenberry v. Bali, 668 S.W.2d 216, 219 (Mo. App. E.D. 1984). But seeGrider v. Tingle, 325 S.W.3d 437 (Mo. App. S.D. 2010) (a portion of the dominant estate can be severed from the servient estate, terminating the appurtenant easement).

If the servient tenement is burdened with the easement, the purchaser of the servient tenement is also burdened with that easement, but only if the purchaser purchases with actual or constructive knowledge. See Bremen Bank & Tr. Co. of St. Louis v. Muskopf, 817 S.W.2d 602, 608 (Mo. App. E.D. 1991). Recordation under Chapter 442, RSMo, creates constructive...