Section 18 Rights and Scope

• Library: Real Estate Fundamentals 2011

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. Branson W., Inc. v. City of Branson, Mo., 980 S.W.2d 604, 606 (Mo. App. S.D. 1998). This use is unlimited reasonable use. Id. If the easement user exceeds his or her rights in either the manner or extent of use, the easement user becomes a trespasser to the extent of the unauthorized use. Id.; 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. Bedard v. Scherrer, 221 S.W.3d 425 (Mo. App. W.D. 2006); Reinbott v. Tidwell, 191 S.W.3d 102, 111 (Mo. App. S.D. 2006). The holder of the dominant estate is entitled to use the servient estate in a manner that is reasonably necessary for convenient enjoyment of the servitude. Reinbott, 191 S.W.3d at 111 n.5 (citing Restatement (Third) of Property § 4.10 (2000)). For example, an easement for ingress and egress cannot be blocked by a locked gate. Id.; Maasen v. Shaw, 133 S.W.3d 514, 519 (Mo. App. E.D. 2004); conversely, the easement holder cannot block free access to the servient estate by a...