9.38 Implied Rights/reasonable Working Room

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

4. (§9.38) Implied Rights/Reasonable Working Room

Implicit in any easement is the right to enter the land of the servient estate for the purpose of constructing or maintaining the improvements for which the easement was granted. As summarized by the Supreme Court of Missouri:

'In order that the owner of an easement may perform the duty of keeping it in repair, he has the right to enter the servient estate at all reasonable times to effect the necessary repairs and maintenance, or even to make original constructions necessary for enjoyment of the easement. Such right is an incident of the easement, and is sometimes called a 'secondary easement.' Such secondary easements can be exercised only when necessary, and in such a reasonable manner as not to increased needlessly the burden on * * * the servient estate.'

State ex rel. State Highway Comm'n v. S. Dev. Co., 509 S.W.2d 18, 31–32 (Mo. 1974) (quoting 25 Am. Jur. 2d Easements and Licenses § 86).

"'If the dominant owner exceeds his rights either in the manner or in the extent of his use, he becomes a trespasser to the extent of the unauthorized use[.]'" Branson W., Inc. v. City of Branson, Mo., 980 S.W.2d 604, 606 (Mo. App. S.D. 1998) (quoting 28A C.J.S. Easements § 166 (1996)).

Mullins v. Metropolitan St. Ry. Co., 104 S.W. 890 (Mo. App. W.D. 1907), demonstrates these points in the context of the construction of a sewer. In that case, a city had an easement for the construction of a sewer across land owned by a railroad. The court found that the easement gave the city the right to access the railroad's property for the purpose of constructing the sewer, but it did not permit the city to use adjoining land in the course of this construction. See id. at 892–94.

With regard to the right of construction and maintenance, the court held that the grant of an easement for the "construction, maintenance, and reconstruction of a public sewer" necessarily gave the city "dominion over the land

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