                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISION ONE

BRUCE TETRAULT, ET AL,                       )       No. ED101254
                                             )
       Plaintiffs/Appellant,                 )       Appeal from the Circuit Court of
                                             )       the St. Louis County
vs.                                          )
                                             )       Honorable Patrick Clifford
RONALD YANKOWSKI, ET AL.,                    )
                                             )       Filed: January 27, 2015
       Defendants/Respondent.                )

                                     I. INTRODUCTION

       Plaintiffs Bruce and Cheryl Tetrault appeal the judgment of the Circuit Court of St. Louis

County in favor of defendants Antoinette Friesen and Ronald and Connie Yankowski. On appeal,

the Tetraults argue that the trial court erred by determining that their right to an easement road

through the Friesen and Yankowski properties was extinguished by abandonment and adverse

possession. We reverse the trial court’s judgment and remand for further proceedings consistent

with this opinion.

                                           II. FACTS

       The instant action involves three contiguous properties located in Wildwood, Missouri,

63201. The first property, 1298 St. Paul Road, belongs to the Tetraults. The second property,

1318 St. Paul Road, belongs to the Yankowskis. The third property, 1284 St. Paul Road, belongs

to Friesen. The “easement road” at issue here begins at St. Paul Road on the Friesen property,



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                                                             runs south across the Yankowski

                                                             property, and ends on the Tetrault

                                                             property. The relevant history of

                                                             the properties, as well as the

                                                             easement road, is as follows.

                                                                     The three parcels were

                                                             originally a single tract owned by

                                                             the Nieres. An old dirt road

                                                             referenced in the Nieres’ 1949

                                                             general warranty deed was used to

                                                             access the tract from St. Paul

                                                             Road. The road began at St. Paul

                                                             Road in the northwestern portion

                                                             of the tract and ended in the

southern portion of the tract.

       In 1970, the Nieres subdivided the original tract into three separate plots, which are now

known as the Friesen, Yankowski, and Tetrault properties. In doing so, they created an easement

across the Friesen and Yankowski properties so that the Yankowski and Tetrault properties could

use the old dirt road to access St. Paul Road. The dirt road then came to be known as the

“easement road.”

       Since the original tract was subdivided, the Friesen property has had no owner other than

Friesen. However, the two remaining properties changed hands several times over the years.




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       The first owners of what is now the Yankowski property were the Rosses. In 1974, the

Rosses constructed a new road to access their property. Pursuant to an easement granted by

Friesen, the road begins at St. Paul Road on the Friesen property and ends on the Yankowski

property. This road is now known as the “lower road.” In 1975, the Rosses sold the property to

the Yankowskis, and the Yankowskis have occupied it ever since.

       The Nieres originally retained ownership of the Tetrault property, and leased it to the

Jaycoxes. In 1980, the Gerstungs purchased the property from the Nieres. The Gerstungs never

lived there, however, and sold the property to Burkey in 1997. Burkey purchased the property

with the intent to develop luxury homes. To provide access to the planned homes, Burkey built a

third road running directly from St. Paul Road to the Tetrault property. This road is now known

as the “Tetrault road.” In 2010, however, Burkey lost the property to foreclosure and the planned

development was never completed. Thereafter, the Tetraults purchased the property. The

Tetraults’ home is accessible from St. Paul Road by way of the Tetrault Road, as well as by

traveling a combination of the lower road and easement road.

       In July 2011, the Tetraults filed the instant lawsuit seeking a declaration that they have a

permanent right of access to the easement road, and to prevent Friesen and the Yankowskis from

interfering with the Tetraults’ use thereof. After a bench-trial, the trial court granted judgment in

favor of the defendants. The court concluded that the easement had been abandoned by the

previous owners of the Tetrault property and extinguished by adverse possession. This appeal

follows.

                                 III. STANDARD OF REVIEW

       In a bench-tried case, we review the trial court’s judgment under the standard set forth in

Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). See Opponents of Prison Site, Inc. v.



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Carnahan, 994 S.W.2d 573, 577 (Mo. App. W.D. 1999); Blue Pool Farms, L.L.C. v. Basler, 239

S.W.3d 687, 690 (Mo. App. E.D. 2007). We will “sustain the judgment of the trial court unless

there is no substantial evidence to support it, unless it is against the weight of the evidence, or

unless it erroneously declares or applies the law.” Blue Pool Farms, 239 S.W.3d at 690. “We

view the evidence and permissible inferences therefrom in the light most favorable to the

judgment and disregard all contrary evidence and inferences.” Board of Educ. v. State, 229

S.W.3d 157, 161 (Mo. App. E.D. 2007). We review questions of law de novo. Blue Pool Farms,

239 S.W.3d at 690.

                                                IV. DISCUSSION

         In their first point on appeal, the Tetraults argue that the trial court erred by determining

that their right to the easement road was extinguished, because the previous owners of their

property abandoned it. Specifically, they argue that there was no evidence of any act by Burkey

or the Gerstungs that showed clear intent to abandon the easement. In response, Friesen and the

Yankowskis argue that there was in fact clear and convincing evidence of intent to abandon the

easement.1 They assert that in the 1980s the Gerstungs prepared a legal document proposing to

abandon the easement road if Friesen and the Yankowskis would allow them to use the lower

road. They also assert that Burkey’s construction of the Tetrault road demonstrates he did not

wish to use the easement road. Finally, they point to the trial court’s finding that Burkey

submitted building plans to the city of Wildwood which showed the Tetrault road, but failed to

reference the easement road.2


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           In addition, we note that Friesen and the Yankowskis claim the Tetraults’ appeal should be dismissed for
noncompliance with Rule 84.04(d). We find that the Tetraults’ points relied on are substantially compliant with Rule
84.04(d), because they identify the challenged ruling of the trial court, state concisely the legal reason for reversible
error, and explain why that legal reason is applicable to the instant case. See id. Therefore, we proceed with our
review.
         2
           Consistent with the trial court’s judgment, Friesen and the Yankowskis also claim that the Rosses’
construction of the lower road is further evidence of abandonment of the easement road. They fail to recognize,

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        As the easement at issue here was established in the Tetrault property when it was

created, Friesen and the Yankowskis have the burden to prove by clear and convincing evidence

that the Tetraults or their predecessors in title abandoned the easement. Creech v. Noyes, 87

S.W.3d 880, 884 (Mo. App. E.D. 2002); see also Franck Bros. v. Rose, 301 S.W.2d 806, 813

(Mo. 1957). “An easement is considered abandoned when there is a history of nonuse coupled

with an act or omission showing a clear intent to abandon.” Id. at 885 (quoting 25 Am. Jur. 2d

Easements and Licenses § 112 (2d ed. 1996)).

        “Mere nonuse[] of an easement, however long continued, does not of itself constitute

abandonment.” Id. at 884. “The reason mere nonuse[] will not destroy an easement is that it is a

property right and thus it is not necessary that the owner make use of it to keep h[er] right.” Id.

(quoting George W. Thompson, Thompson on Real Property § 443, at 735 (1980)). “[O]nce an

easement is established or acquired, it is not abandoned or destroyed by mere nonuse[] or by the

use of another means of ingress and egress.” Id. at 885 (quoting Sanderson v. Less, 296 S.W.2d

81, 84 (Mo. 1956)). “The fact that the easement-holder finds a more convenient alternative route

does not deprive the easement-holder of the easement that remains for the holder’s use and

enjoyment whenever the holder has occasion to use the right.” Id. (quoting Jackvony v. Poncelet,

584 A.2d 1112, 1117 (R.I. 1991)).

        Further, “to prove . . . abandonment, there must be ‘evidence of an intention to abandon

as well as of the act by which that intention is put into effect; there must be a relinquishment of

possession with intent to terminate the easement.’” Id. (quoting Dalton v. Johnson, 320 S.W.2d

569, 574 (Mo. 1959)). “The acts claimed to constitute the abandonment must be of a character so



however, that the abandonment inquiry here focuses solely on the current and former owners of the Tetrault
property. See 28A C.J.S. Easements § 148 (2014) (“A claim of abandonment . . . focuses upon the intention and acts
of the easement owner rather than the party claiming extinguishment.”). Neither Friesen, the Rosses, nor the
Yankowskis can abandon easement rights vested in a property they never owned.

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decisive and conclusive as to indicate a clear intent to abandon the easement.” Id. (quoting 25

Am. Jur. 2d Easements and Licenses § 112 (2d ed.1996)). “Acts evidencing an intention to

abandon must clearly demonstrate the permanent relinquishment of all rights to the easement.”

Id. (quoting 28A C.J.S. Easements § 124 (1996)).

       Here, the trial court’s determination that the Tetraults’ right to the easement road was

extinguished by abandonment is not supported by substantial evidence. There is no evidence in

the record of an act by the current or former owners of the Tetrault property that was “so decisive

and conclusive as to indicate a clear intent to [permanently] abandon the easement.” Id. (quoting

25 Am. Jur. 2d Easements and Licenses § 112).

       First, the fact that the Gerstungs prepared a document offering to abandon their right to

the easement road, if Friesen and the Yankowskis would allow them to use the lower road, is

insufficient to establish a clear intent to abandon, because the record shows that Friesen and the

Yankowskis in fact rejected the Gerstungs’ offer. Friesen and the Yankowskis never granted the

Gerstungs access to the lower road, so the Gerstungs never relinquished their right to the

easement road. At most, the document shows that the Gerstungs would have abandoned the

easement only if Friesen and the Yankowskis met their terms, not that they unconditionally

intended to do so.

       Second, Burkey’s construction and use of the Tetrault road to access St. Paul Road is

insufficient to establish a clear intent to abandon the easement road. As we have explained, an

easement-holder does not abandon her easement by using a different, more convenient method of

accessing her property. Id. Rather, an easement “is a property right and thus it is not necessary

that the owner make use of it to keep h[er] right.” Id. at 884 (quoting George W. Thompson,

Thompson on Real Property § 443, at 735 (1980)). The easement right “remains for the holder’s



                                                6
use and enjoyment whenever the holder has occasion to use [it].” Id. at 885 (quoting Jackvony,

584 A.2d at 1117).

         Finally, even if Burkey submitted building plans to the city of Wildwood that failed to

reference the easement road, this act is not “so decisive and conclusive as to indicate a clear

intent to [permanently] abandon the easement.” Id. (quoting 25 Am. Jur. 2d Easements and

Licenses § 112). The purpose of these building plans was to gain approval from the city for new

improvements upon the Tetrault property, not to alter or extinguish the right of the Tetrault

property’s owner to use two adjacent properties for access from St. Paul Road. In fact, the trial

court found that construction vehicles hired by Burkey used a portion of the easement road in

order to build the very improvements his plans had set forth.

         Thus, the trial court’s determination that the prior owners of the Tetrault property

abandoned their right to the easement road is unsupported by substantial evidence. The record

contains no evidence of a decisive, unequivocal act showing clear intent to abandon the

easement.

             In their second point, the Tetraults argue that the trial court erred by determining that

their right to the easement road was extinguished by adverse possession. They contend, inter alia,

that Friesen and the Yankowskis failed to establish that their use was hostile and under claim of

right, because it was not incompatible with the Tetrault’s right as an easement-holder. In

response, Friesen and the Yankowskis argue that they established adverse possession, because

the trial court found that no one has used the easement road for access to the Tetrault property

since the early 1980s and it is overgrown and impassable.3


         3
           The trial court also concluded that a garage and two large trees on the Friesen property obstruct the
easement road. However, the trial court also found that these objects predate the easement. We fail to see how
objects that predate an easement created and used specifically to access the Tetrault property could be adverse to the
owner of that property’s right to such access.

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        “To establish title to a tract of land by adverse possession, a claimant must prove that

h[er] possession of the land was: (1) actual; (2) hostile and under claim of right; (3) open and

notorious; (4) exclusive; and (5) continuous for a period of ten years.” Creech, 87 S.W.3d at 885.

“The burden is on the party claiming adverse possession to prove each element by a

preponderance of the evidence.” Id. at 885-86; cf. 28A C.J.S. Easements § 154 (2014) (“[I]f the

dominant estate owner abstains from the use of the easement, the servient owner has an enlarged

scope of privileged action, and it may be more difficult for the servient owner to establish the

adverse character of behavior.”); 25 Am. Jur. 2d Easements and Licenses § 89 (2014) (“[T]he

burden on the servient estate owner to prove unreasonable interference with an unused easement

is high.”). “A claimant’s failure to establish any one of the elements [of adverse possession] will

necessarily defeat the claim . . . .” Id. at 886.

        The element of “‘[h]ostile and under claim of right’ means that the possession must be

opposed and antagonistic to the claims of all others, and the claimant must occupy the land with

an intent to possess it as his or her own.” Id. (quoting Flowers v. Roberts, 979 S.W.2d 465, 469

(Mo. App. E.D. 1998)). “[T]o extinguish an easement by adverse possession, a landowner’s use

must be incompatible with the easement-holder’s right of use.” Baker v. Walnut Bowls, Inc., 423

S.W.3d 293, 299 (Mo. App. S.D. 2014) (quoting Peasel v. Dunakey, 279 S.W.3d 543, 546 (Mo.

App. E.D. 2009)).

        Here, Friesen and the Yankowskis’ use of the easement was not hostile and under claim

of right, because it was not incompatible with the right of use possessed by the owners of the

Tetrault property. The trial court’s finding that the easement road was simply allowed to become

overgrown shows that Friesen and the Yankowskis neglected to make use of the easement at all.

It was not until 2011, when a trailer was placed across the road, that either Friesen or the



                                                    8
Yankowskis took any affirmative step to use the easement in a way that was incompatible with

the Tetrault property’s right of use. Therefore, the trial court erroneously applied the law in

concluding that Friesen and the Yankowskis’ use of the easement was hostile and under claim of

right for the requisite ten year period, and the Tetraults’ easement was not extinguished by

adverse possession.

                                      V. CONCLUSION

       For the foregoing reasons, we reverse the trial court’s judgment and remand for further

proceedings consistent with this opinion.


                                                   _________________________________
                                                   Lisa S. Van Amburg, Judge

Lawrence E. Mooney, P.J. and
Clifford H. Ahrens, J., concur.




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