JAMES R. BAKER and                          )
LINDA BAKER,                                )
                                            )
       Plaintiffs-Appellants,               )
and                                         )
                                            )
CHARLES E. HIGHTOWER,                       )
DIANE HIGHTOWER, MARVIN D.                  )
GRIFFITH, MARILYN SUE                       )
GRIFFITH, and THE UNKNOWN                   )      No. SD31205
HEIRS, DEVISEES, GRANTEES,                  )      Filed: 2-11-14
SUCCESSORS AND ASSIGNS OF                   )
JAMES ELLIS THOMPSON, JR.,                  )
DECEASED,                                   )
                                            )
       Plaintiffs,                          )
v.                                          )
                                            )
WALNUT BOWLS, INC.,                         )
                                            )
       Defendant-Respondent.                )

          APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY

                       Honorable William R. Hass, Senior Judge

REVERSED AND REMANDED

       James Baker and Linda Baker (the Bakers) filed a declaratory judgment action

asking the trial court to determine the location of an express easement reserved by their

predecessors in title over property owned by Walnut Bowls, Inc. (Walnut Bowls).
Walnut Bowls’ answer alleged two affirmative defenses:              (1) the easement was

abandoned; and (2) the easement was extinguished by adverse possession.               Via a

counterclaim, Walnut Bowls added additional parties to the lawsuit and asked the court to

quiet title to the property. After a bench trial, the judge found in favor of Walnut Bowls.

On appeal, the Bakers present three points for decision. They contend the trial court

erred because: (1) absent an agreement by the parties as to the location of the express

easement, the trial court was required to determine a convenient, reasonable and

accessible course of ingress and egress for the Bakers; (2) their express easement was not

abandoned by its non-use alone; and (3) Walnut Bowls failed to meet its burden of

proving that the express easement was extinguished by adverse possession. Because all

three points have merit, we reverse and remand for further proceedings consistent with

this opinion.

                                  I. Standard of Review

       Appellate review in this court-tried case is governed by Rule 84.13(d).1 “This

Court must affirm the trial court’s judgment unless it is not supported by substantial

evidence, it is against the weight of the evidence, or it erroneously declares or applies the

law.” Grider v. Tingle, 325 S.W.3d 437, 440 (Mo. App. 2010). “In our review, we

accept the evidence and reasonable inferences favorable to the prevailing party and

disregard all contrary evidence.” Creech v. Noyes, 87 S.W.3d 880, 884 (Mo. App. 2002);

Buckner v. Castro, 306 S.W.3d 655, 659 (Mo. App. 2010).             In addition, this Court

defers to the trial judge’s superior opportunity to assess the witnesses’ credibility. Lee v.

Hiler, 141 S.W.3d 517, 520 (Mo. App. 2004); Grider, 325 S.W.3d at 441. No such



       1
           All references to rules are to Missouri Court Rules (2013).


                                              2
deference, however, is afforded the trial court when we review its conclusions of law.

Mortenson v. Leatherwood Constr., Inc., 137 S.W.3d 529, 531 (Mo. App. 2004). “We

independently evaluate whether the trial court properly declared or applied the law to the

facts presented.” Id.; see Creech, 87 S.W.3d at 884.

                        II. Factual and Procedural Background

         In 1952, F.R. and Louise Randolph were the owners of approximately 50 acres of

land in Lebanon, Missouri. They granted a right-of-way easement over that entire tract to

Laclede Electric Cooperative (Laclede). This easement allowed Laclede to enter the

property for the purpose of constructing, operating, maintaining or replacing electric lines

on the property, as well as removing or trimming trees and shrubs that could interfere

with the operation of those power lines. Pursuant to that express easement, Laclede

entered the property every six to ten years to clear the area under and around its power

lines.

         At some point prior to 1974, Junior and Wilma Thompson (the Thompsons)

became the owners of the 50-acre parcel. Approximately 379 feet of the eastern side of

the property abutted City Route 66. A portion of the west side of the property abutted the

right-of-way of a railroad track. An old, north-south barbed-wire fence divided the 50

acres into two parcels. Access between these parcels was provided by a wooden gate

near the fence’s mid-point. The eastern parcel was approximately 21 acres in size and

contained a small, one-bedroom house. The western parcel, approximately 29 acres in

size, was used by the Thompsons to keep cattle. This parcel contained a pond, holding

pens for cattle, a small storage building and a small hay barn about 100 feet south of the

gate. A chute for loading cattle was built into the fence line between the gate and the

barn.


                                             3
       In 1971, Walnut Bowls was incorporated. This business, which sold walnut

products out of a gift shop, was operated by E.L. and Rachel Capoferri (collectively, the

Capoferris) and John F. and Emily S. O’Reilly (collectively, the O’Reillys).           Scott

O’Reilly (Scott) was the O’Reillys’ son.2 The Walnut Bowls business was located about

six miles from the Thompsons’ property.

       In March 1974, the Thompsons conveyed the 21-acre eastern parcel to the

Capoferris and the O’Reillys by general warranty deed. Immediately following the legal

description, the deed stated that the conveyance was “[s]ubject to reservation of easement

by Junior Thompson and Wilma I. Thompson, his wife, from City Route 66 back to the

property owned by them lying West of the tract herein-above described.” The Capoferris

and O’Reillys decided to move the Walnut Bowls business to their new property, the 21-

acre eastern parcel. They brought in fill dirt, created a gravel parking lot adjacent to City

Route 66 and cut another driveway entrance off of that road. They also installed two

concrete islands for gas pumps and a third concrete island for gasoline storage tanks. All

of the development was in the southeastern corner of the property adjacent to City Route

66. The remainder of the property remained largely wooded and overgrown.

       In 1975, the existing Walnut Bowls gift shop building was physically moved and

placed onto a new foundation on the 21-acre parcel. To provide security, the Capoferris

and O’Reillys placed cables across the two driveway entrances at night. Dixie Clark

(Clark), a Walnut Bowls employee who worked in the gift shop, also moved into the

house on the property to watch the premises at night.




       2
          Because the O’Reillys share their surname with their son, we will refer to Scott
by his given name for clarity.


                                             4
       In 1985, the Walnut Bowls business closed. The Capoferris and O’Reillys leased

their property to the Lebanon Early Education Program (LEEP). Clark continued to

reside in the house. LEEP added a playground near the store building and some fenced

areas for the children to play. The southwest driveway entrance to the property was

closed, and the gasoline pumps were removed.

       In 1998, the Capoferris and O’Reillys conveyed the 21-acre tract to Walnut Bowls

(the Walnut Bowls property).      Each deed stated that the grant was “[s]ubject to

reservation of easement by Junior Thompson and Wilma I. Thompson, his wife, from

City Route 66 back to the property owned by them lying West of the tract herein-above

described.”

       That same year, the Bakers acquired the remaining 29-acre tract from the trustees

of the Wilma Thompson Trust (the Baker property). In addition to the express easement

to and from City Route 66, the Bakers also had access to their property via a different

road across adjoining property to the west that the Bakers had owned since the 1980’s.

After the Bakers acquired their tract in 1998, James Baker used his tractor and bush hog

to clear sprouts and brush approximately 200 yards past the old wooden gate in the

barbed-wire boundary fence. This activity was performed no more than once or twice a

year, and there may have been some years when he did not do so.

       In 1999, LEEP stopped leasing the Walnut Bowls property, and Clark moved out

of the house. Walnut Bowls then started a new business selling modular homes. The old

gift shop was used as the office. The gas storage tanks and underlying concrete island

were removed. The southwest entrance on City Route 66 was reopened, and the gravel

parking lot was extended to the west. Walnut Bowls kept 30-33 modular homes in its

inventory. The homes, which were either 16x80 feet or 28x80 feet in size, were placed


                                           5
on blocks so they could be moved when sold. The homes were spread across the

property in such a way that a car could not drive back to the west part of the property, but

a person could walk between them. The modular home business ceased operations in

early 2006. The last modular home inventory was removed from the Walnut Bowls

property in 2007.

       That same year, Walnut Bowls wanted to sell its property. A title examination

noted the existence of the express easement, and the sale did not take place. Scott, who

was President of Walnut Bowls, testified that this was when he first became aware of the

Bakers’ express easement. Neither the Bakers nor their predecessors in title had used the

easement for ingress or egress prior to that time.

       In July 2007, the Bakers filed their petition for declaratory judgment requesting

that the trial court determine the location of the easement. Thereafter, Walnut Bowls put

the steel cables back up across the two driveway entrances. In January 2008, Walnut

Bowls filed a counterclaim requesting, inter alia, the court to find the Bakers had no

easement over any portion of the Walnut Bowls property.3

       Sometime between 2008 and 2010, Laclede entered the Walnut Bowls property

pursuant to its express easement and used a bulldozer to clear brush underneath its

electric lines. A number of tall trees were trimmed as well. Laclede was able to do so

without providing any prior notice to Walnut Bowls. In March 2010, Walnut Bowls

installed a lock and chain on the gate and bolted on a “No Trespassing” sign facing the

Baker property.

       3
          Walnut Bowls filed their counterclaim not only against the Bakers, but the
Hightowers, the Griffiths and “the unknown heirs, devisees, grantees, successors and
assigns of James Ellis Thompson, Jr., deceased.” Only the Bakers have appealed from
the judgment in Walnut Bowls’ favor.


                                             6
         The case was tried to the court. The court found in favor of Walnut Bowls and

adjudged that the Bakers had no easement interest in the Walnut Bowls property. The

judgment contained findings of fact and conclusions of law setting out the following

alternative bases for the court’s decision: (1) the Bakers failed to present sufficient

evidence from which the court could “determine and fix a definite easement route” on the

property, either by an express agreement or evidence of past usage; (2) if the Bakers had

an easement, they abandoned it; and (3) if the Bakers had an easement, it was

extinguished by adverse possession. This appeal followed.

                               III. Discussion and Decision

         The Bakers present three points on appeal addressing the alternate grounds for the

court’s decision. For ease of analysis, we will address the Bakers’ three points out of

order.

                                          Point II

         In the Bakers’ second point, they contend the trial court erred in concluding their

easement had been abandoned. We agree.

         An easement may be extinguished by abandonment, which must be proved by

clear and convincing evidence. Franck Bros., Inc. v. Rose, 301 S.W.2d 806, 812 (Mo.

1957). Once an easement is established in a party, the opposing party has the burden to

show abandonment. Creech, 87 S.W.3d at 884. To establish abandonment, non-use of

the easement alone is insufficient; the non-use must be coupled with an act showing a

clear intention to abandon the easement. Id. at 885. The following discussion from

Creech is instructive:

         Mere nonuser of an easement acquired by grant, however long continued,
         does not of itself constitute abandonment. The reason mere nonuser 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 his right. Further, once an

                                              7
       easement is established or acquired, it is not abandoned or destroyed by
       mere nonuser or by the use of another means of ingress and egress. 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.

       An easement is considered abandoned when there is a history of nonuse
       coupled with an act or omission showing a clear intent to abandon.
       Accordingly, to prove an 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. The acts claimed to constitute the abandonment
       must be of a character so decisive and conclusive as to indicate a clear
       intent to abandon the easement. Acts evidencing an intention to abandon
       must clearly demonstrate the permanent relinquishment of all rights to the
       easement.

Id. at 884-85 (citations and quotation marks omitted). In Creech, the eastern district of

this Court determined that the easement holders did not abandon their roadway easement,

which was in bad repair, when they chose to use an alternative route instead. Id. at 185.

“An easement is a property right, which the [easement holders] could use or not use, as

they wished.” Id. While they had “‘abandoned’ the use of the roadway ... there is no

substantial evidence that they were thereby permanently relinquishing their right to an

easement.” Id. (emphasis in original). The opposing party therefore “failed in her

burden to prove abandonment by clear and convincing evidence.” Id.

       The Bakers contend the evidence was insufficient to prove that they abandoned

their easement. They argue that there was no proof that they, or their predecessors in

title, committed any act exhibiting a clear intent to abandon the easement. We agree.

The record before us contains no evidence of any act sufficient to prove an intention by

the Bakers, or their predecessors in title, to abandon the easement. While there was

ample evidence of non-use, such proof by itself is insufficient to establish abandonment.

Id.; see Franck Bros., 301 S.W.2d at 812; Knox County Stone Co. v. Bellefontaine


                                           8
Quarry, Inc., 985 S.W.2d 356, 361 (Mo. App. 1998) (“[a]n easement created by grant is

not lost by non-user, no matter how long continued”).4 Therefore, Walnut Bowls failed

to prove abandonment. See Creech, 87 S.W.3d at 885; see Franck Bros., 301 S.W.2d at

812.   The trial court’s conclusion that the Bakers’ easement was extinguished by

abandonment was erroneous. Point II is granted.

                                          Point III

       In the Bakers’ third point, they contend the trial court erred in finding that their

easement had been extinguished by adverse possession.                An easement can be

extinguished by adverse possession. Creech, 87 S.W.3d at 885. “To establish title to a

tract of land by adverse possession, a claimant must prove that his possession of the land

was (1) actual, (2) hostile and under claim of right, (3) open and notorious, (4) exclusive,

and (5) continuous for ten years.” Peasel v. Dunakey, 279 S.W.3d 543, 546 (Mo. App.

2009). As the party claiming title by adverse possession, Walnut Bowls had to prove

each element by a preponderance of the evidence. Nolte v. Corley, 83 S.W.3d 28, 34

(Mo. App. 2002). “[F]ailure to establish any one of the elements of adverse possession

will necessarily defeat the claim.” Flowers v. Roberts, 979 S.W.2d 465, 469 (Mo. App.

1998); see also Creech, 87 S.W.3d at 886; Franck Bros., 301 S.W.2d at 811-12.

       An easement merely grants a right to use land for particular purposes. St. Charles

County v. Laclede Gas Co., 356 S.W.3d 137, 139 (Mo. banc 2011). For an easement to

be exclusive, the language used to create it must exclude the servient tenant from



       4
          Walnut Bowls argues that these cases are not controlling because the easement
in this case “was never defined.” That argument fails because “[a]n easement may be
created even though its precise location is not described in the grant. If the location is not
precisely fixed when the easement is first created, the grantee is entitled to a convenient,
reasonable and accessible use.” Hall v. Allen, 771 S.W.2d 50, 53 (Mo. banc 1989); see
Beery v. Shinkle, 193 S.W.3d 435, 440-41 (Mo. App. 2006).

                                              9
participating in the rights granted to the dominant owner. Grider, 325 S.W.3d at 448;

Maasen v. Shaw, 133 S.W.3d 514, 518 (Mo. App. 2004). The absence of such language

in the deeds creating the Bakers’ easement means it is non-exclusive. As the owner of

land burdened by this non-exclusive easement, Walnut Bowls therefore retained the right

to control and use its property in any way that did not substantially interfere with the

reasonable use of the easement by the easement holder.          See Earth City Crescent

Associates, L.P. v. LAGF Associates-Mo, L.L.C., 60 S.W.3d 44, 46 (Mo. App. 2001).

As Peasal explains, “[r]elevant precedent suggests that, to extinguish an easement by

adverse possession, a landowner’s use must be incompatible with the easement holder’s

right of use.” Peasel, 279 S.W.3d at 546.

         “An easement may be created even though its precise location is not described in

the grant.” Hall v. Allen, 771 S.W.2d 50, 53 (Mo. banc 1989). “If the location is not

precisely fixed when the easement is first created, the grantee is entitled to a convenient,

reasonable and accessible use.” Id. When the location of the easement is unknown

initially, the location can subsequently be fixed by express agreement or inferred from

proof of the use of a particular way. Beery v. Shinkle, 193 S.W.3d 435, 441 (Mo. App.

2006).    If the easement is not fixed by subsequent express agreement or selection,

however, “the trial court must fix the location of the easement.” Id. (emphasis added). In

doing so, the easement holder is entitled to “a convenient, reasonable and accessible use.”

Hall, 771 S.W.2d at 53; Beery, 193 S.W.3d at 441.

         Because the precise location of the ingress-egress easement was not specified in

the grant, the Bakers and their predecessors in title were entitled to convenient,

reasonable and accessible use. The relevant question, in determining Walnut Bowls’

adverse possession claim, is whether it used its property in such a way that, for a ten-year


                                            10
period, there was no available route for ingress or egress across its 21-acre tract. See

Peasel, 279 S.W.3d at 546. Such proof is necessary to prove the actual, hostile, open and

notorious, and continuous elements of Walnut Bowls’ claim. See id. We find no such

evidence in the record.

       The construction and improvements to the Walnut Bowls property in 1974-75 did

not substantially interfere with the reasonable use of the easement because passage from

the eastern to the western part of the property was not completely obstructed. Clark’s

presence in the house to provide night-time security likewise presented no physical

barrier to ingress, egress or passage between the two tracts. The use of cables across the

driveways was a physical barrier to entry, but it was a transient condition used only at

night for security purposes. This type of transient event is different than the complete

obstruction of an easement by a permanent boundary fence or locked gate, like that

eventually used by Walnut Bowls in 2010. See, e.g., Humphreys v. Wooldridge, 408

S.W.3d 261, 269 (Mo. App. 2013) (permanent boundary fence that encompassed part of

the easement); Creech, 87 S.W.3d at 886 (noting that a locked gate was the “first visible

act of ownership” exercised by the claimant over the easement road); Nolte, 83 S.W.3d at

32-33 (locked doors extinguished easement). Furthermore, none of the foregoing actions

prevented Laclede, another easement holder, from using its easement during that same

time frame. While the trial court found that vehicular access to the west side of the

property was blocked from 1999 to 2007 by the modular home business, that eight-year

time period was insufficient to meet the ten-year time limit for continuous possession.

Based upon our review of the record, the evidence was insufficient to prove that the

Bakers or their predecessors in title were wholly excluded from having any available




                                           11
east-west route for ingress and egress for a continuous ten-year period. See Creech, 87

S.W.3d at 886.

       Because Walnut Bowls failed in its burden to prove all of the elements of adverse

possession, its claim must fail. See id.; Franck Bros., 301 S.W.2d at 811-12; Peasel, 279

S.W.3d at 546; Flowers, 979 S.W.2d at 471-72. The trial court’s conclusion that the

Bakers’ easement was extinguished by adverse possession was erroneous. Point III is

granted.

                                          Point I

       In the Bakers’ first point, they contend the trial court misapplied the law by

deciding that evidence of an express agreement or past usage was necessary for the court

to locate the easement. The Bakers argue that, even in the absence of such evidence, the

trial court must determine a convenient, reasonable and accessible course for the

easement. We agree.

       As already noted above, an easement can be created notwithstanding the absence

of a precise description of its location in the grant. Hall, 771 S.W.2d at 53. If the grant

does not precisely fix the easement’s location, “the grantee is entitled to a convenient,

reasonable and accessible use.” Id. (holding that the trial court erred in its declaration

that an easement must be described in a deed in order to be conveyed). In such a case,

the location can be fixed by express agreement or inferred from past use of a particular

way. Beery, 193 S.W.3d at 441. If neither of these methods can be used, however, it is

the trial court’s obligation to fix the location of the easement so as to provide the

easement holder with convenient, reasonable and accessible use. Hall, 771 S.W.2d at 53;

Beery, 193 S.W.3d at 441.




                                            12
       The grant creating the Bakers’ easement did not fix its precise location. As the

trial court found, there was no evidence of any express agreement concerning the

easement’s location or any way to infer its location from past use. By stopping there and

concluding that there was no easement at all, however, the trial court misapplied the law.

See Hall, 771 S.W.2d at 53; Beery, 193 S.W.3d at 441. On remand, “the court should

undertake to outline a route of access consistent with the interests of convenience, and

reasonable, accessible use.” Hall, 771 S.W.2d at 53; see also Chisholm v. MBM, LLC,

348 S.W.3d 821, 824-25 (Mo. App. 2011). Once a definite route is determined, the

judgment must contain a legal description of the easement. See Creech, 87 S.W.3d at

882 n.1. The trial court has the inherent authority to order a survey to establish a proper

legal description. See Harmon v. Hamilton, 903 S.W.2d 610, 615 (Mo. App. 1995);

Dillon v. Norfleet, 813 S.W.2d 31, 33 (Mo. App. 1991).

       The judgment of the trial court is reversed, and the cause is remanded for further

proceedings consistent with this opinion.



JEFFREY W. BATES, J. – OPINION AUTHOR

ROBERT S. BARNEY, Sr. J. – CONCUR

DANIEL E. SCOTT, J. – CONCUR




                                            13
