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DIVISION T W0
PATRICK T. WOODLING, ) ED102584
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
v. ) 14SL-CC00951
)
GREGORY POLK and ADRIENNE ) Honorable Barbara W. Waliace
POLK, )
)
Respondents. ) Filed: October 27, 2015

Introduction
Patrick Woodling (Woodling) appeals the trial court’s summary judgment in favor
of Gregory and Adrienne Polk (collectively, the Folks). Woodling sued for declaratory
judgment and permanent injunction regarding a strip of land on the Polks’ property over
which Woodlng claimed he had an easement. Woodling also appeals the trial court’s
dismissal of his trespass claim. We afﬁrm.
Background
In 2004, Post Valley, LLC, d/b/a Merdinian Homes (Merdinian), a developer,
owned two adjacent residential lots, located at 1017 Forest Avenue and 1019 Forest
Avenue in Kirkwood, Missouri. There was one wide driveway serving both properties,

but situated on 1019 Forest’s lot, so Merdinian executed and recorded an “Easement

 

 

     

Deed,” intended to create an easement for “ingress, egress, maintenance, [and] repair” of
the driveway on 1019 Forest “[f]0r the use and beneﬁt of the present and future owners of
1017 Forest.” The Basement Deed listed Merdinian as both the grantor and the grantee.

In 2005, Merdinian began negotiating the sale of 1017 Forest to William and
Eileen Healy (collectively, the Healys). As the Healys considered the sale, they realized
that the driveway serving 1017 Forest was actually situated on the property of 1019
Forest. This was a portion of land addressed by the Basement Deed. The Heain were
concerned about this situation and requested that Merdinian adjust the boundary line
between 1017 Forest and 1019 Forest so that the driveway of 1017 Forest would be
completely situated on 1017 Forest’s lot. Merdinian adjusted the boundary accordingly
(Boundary Adjustment), so that the new boundary line was still within the original wide
driveway, but provided at least one car width fully on 1017 Forest’s property. Merdinian
recorded the Boundary Adjustment on September 28, 2005. The Healys purchased 1017
Forest, as adjusted, from Merdinian on or abOut September 29, 2005.

In 2006, the Polks purchased 1019 Forest from Merdinian. While the Healys and
Polks were neighbors, the Healys used the driveway situated fully on the property of
1017 Forest for access to their property and for parking their vehicles, and they did not
use any portion of the driveway on 1019 Forest.

In 2011, Woodling purchased 1017 Forest from the Healys. From the time
Woodling moved there, he would often use a portion of the 1019 Forest driveway for
ingress and egress, which Woodling claimed was necessary to pull his vehicles in and out
of 1017 Forest. The Polks also claimed Woodling parked cars on the 1019 Forest

driveway, interfering with the Polks’ use of their driveway. Subsequently, the Folks

 

 

 

removed the pavement on a strip of their driveway adjoining the boundary line. The
Polks placed large rocks where the pavement had been, separating the two driveways and
preventing crossover trafﬁc.

Woodling ﬁled the present suit against the Polks raising six claims. As relevant
to this appeai,l in Count I of his petition, Woodling requested a declaratory judgment
ﬁnding that the Basement Deed validly created an easement for Woodling’s benefit over
the portion of the driveway on which the Polks removed the pavement. In Count 111,
Woodling requested a permanent injunction ordering the Polks to restore the pavement
they removed and to refrain from interfering with Woodling’s easement rights in the
driveway. In Count V, Woodling requested that the court ﬁnd the Polks liable for
trespass due to their interference with Woodling’s easement rights.

The trial court granted summary judgment in favor of the Polks on Counts I and
III, holding that the Basement Deed created no easement, because a common owner
cannot create an easement over his or her own property. The trial court also granted the
Polks’ motion to dismiss Count V for failure to state a claim upon which relief could be
granted. This appeal follows.

Discussion

Woodling raises two points on appeal. First, he argues that the trial court erred in
granting summary judgment, because it erroneously concluded as a matter of law that a
developer may not create an easement in his or her own land. Second, Woodling argues

that the trial court erred in dismissing Woodling’s trespass claim because an easement

' The trial court disposed of Counts I, II, III, and V, and found no just reason for delay of an appeal of these
rulings. The trial court stayed Counts IV and VI pending this appeal.

3

   

 

 

exists, and the Polks interfered with it by removing the pavement. Because we ﬁnd no

easement existed, Point I is dispositive.2
Stan—Wm

Our review of summary judgment is essentially de novo. ITT Commercial Fin.
Corp. v. Mid-Am. Supply Corp, 854 S.W.2d 371, 376 (Mo. banc 1993). We review the
record in the light most favorable to the party against whom summary judgment was
entered, according the non—movant the benefit of all reasonable inferences from the
record. IQ.

Existence of an Easement

The holding underlying the trial court’s summary judgment on both Counts I and
III of Woodling’s petition was that Merdinian’s Easement Deed never created an
easement over 1019 Forest for the beneﬁt of 1017 Forest because an owner may not
create an easement in his or her own property. Our precedent requires we afﬁrm the trial
court’s judgment.

The general principle comes from this Court's decision in Bali v. Gross, citing the
“universal rule” that “a man cannot have an easement over his own land.” 565 S.W.2d
685, 688 (Mo. App. 1978). This principle most often comes into play when the two
properties affected by an easement, the dominant and servient estates, are merged under
common ownership and possession. In such a case, the easement is generally

extinguished. Maune v. Beste, 356 S.W.3d 225, 230 (Mo. App. ED. 2011) (citing

cases).

 

2 The Polks separately argued regarding Point 11 that even if Woodling had easement rights, trespass does
not lie because an easement is a non-possessory property interest, citing Schrader v. QuikTrip Corp, 292
S.W.3d 453, 458 (M0. App. ED. 2009). Because we find no easement existed, we do not reach this issue.

4

 

However, few cases discuss the reverse situation, in which a common landowner

attempts to record an easement burdening one portion of his property for the beneﬁt of
another portion, usually in order to sell one of the portions. Courts have likewise found
that no easement is created because an owner cannot grant himself property rights he
already possesses. S_ee, 51g, Bales v. Butts, 274 S.W. 679, 681 (Mo. 1925) (ﬁnding
owner's attempt to create easement failed because “[s]o long as these lots belonged to the
same owner, there could be no easement in favor of one lot, or servitude upon the other,
for a man cannot have an easement over his own land”) (internal quotation omitted).

ln 323,1, a party listed as the owner of a ﬁve-acre tract of land was actually a straw
party for the defendant in the case, Blanche Gross. 565 S.W.2d at 688. The straw party
attempted to record an easement for the beneﬁt of Gross across the ﬁve-acre tract, but
this Court found the easement invalid because the “real owner” of the ﬁve-acre tract was
Gross, and an owner cannot create an easement in his or her own property. 151, This
Court reasoned that “[i]n order to create an easement by deed there must be a dominant

93

and servient estate, and ‘they must not be lodged in the same person.’ 15L. (quoting
Marshall v. Callahan, 229 S.W.2d 730, 735 (Mo. App. 1950)). Here, Merdinian
attempted to create an easement by deed when it owned both the purported dominant and
servient estates, which was ineffective as a matter of law.

Woodlng argues that an exception exists for a developer who is preparing
multiple adjoining lots for individual resale. Based on Missouri precedent, there are
essentially two options for a developer who desires to create easements over the land he
or she will eventually subdivide and sell.3

3 Some states have explicitly adopted exceptions for developers to the general rule that an easement cannot
exist over one’s own land. 5;; eg, Allen v. Nickerson, 155 P.3d 595, 598-99 (Colo. App. 2006); Mattos

5

 

First, like any party creating an easement, a developer can include the easement in

the individual deeds conveying each lot, each at the time title is severed. Because the
dominant and servient estates will not be lodged in the same person at that point, the deed
will sufﬁce to create the easement. Second, more speciﬁc to a developer’s
circumstances, he or she can create easements through a subdivision plat, which is a to-
scale map of numbered lots, delineating streets, alleys, common areas, and any portions
of land reserved for public purposes. ﬁg Section 445.010-020.4 As discussed below,
easements contained in subdivision plats are routinely upheld by Missouri courts.

The best practice for developers is essentially to do both of these: (1) initially
create easements in a recorded subdivision plat, and (2) then include identical easement
language in each conveyance deed. This ensures buyers are alerted to the easements and
ensures the easements are effectively created, exactly as intended, upon severance of title.
Though there is no precise speciﬁcity requirement regarding the language creating an
easement, it is best to be as speciﬁc as possible, which would include a metes and bounds

description where feasible. See, ggm Rosenbloom v. Grossman, 351 S.W.2d 735, 738-39

 

(Mo. 1961) (quoting 28 C.J.S. Easements § 24 at 677) (“{n]o particular words are
necessary to constitute a grant, and any words which clearly show the intention to give an
easement, which is by law grantable, are sufﬁcient to effect that purpose, provided the

language is certain and deﬁnite in its terms”).

v. Seaton, 839 A.2d 553, 555 (RI. 2004); c_f. Michael v. Needham, 384 A.2d 473, 476 (Md. Ct. Special
App. 1978) (describing “quasi—easement” as legal ﬁction developed to overcome premise that easement
cannot exist over one’s own land; quasi-easement results in implied easement upon division of land).
However, to date, Missouri has not done so either by statute or common law, which our legislature or
Supreme Court could easily do. As it stands now, Missouri recognizes only an easement by necessity: in
order to ﬁnd an easement upon severance of title that is implied by the actions and intentions of the parties,
a party claiming such easement must also show that the easement is reasonably necessary for the fair
enjoyment of the party’s estate. See Meinhardt v. Luaders, 575 S.W.2d 213, 215 n.2 (M0. App. 1978);
Causey v. Williams, 398 S.W.2d I90, 197 (Mo. App. 1965).

4 All statutory references are to RSMO. (2000), unless otherwise indicated.

6

 

 

 

However, where a plat contains an easement but the description of the easement is

not contained in the conveyance deed, Missouri courts have still upheld the easement if

 

the deed conveying the lot refers to the plat. & Pomona Mobile Home Park LLC v.
Je_tt, 265 S.W.3d 396, 399 (Mo. App. SD. 2008) (citing Goad v. Bennett, 480 S.W.2d 77,
80 (Mo. App. 1972)) (“when a deed conveying any of the lots makes reference to the
subdivision plat, “[t]he plat is deemed incorporated into the deed, creating an easement
appurtenant which beneﬁts the grantee . . . .”). There is even some precedent for
upholding an easement based on the piat alone, regardless of any mention in the deed.
For example, in Goad v. Bennett, the original owner of a subdivision had recorded a plat
in which she “reserved to herself an easement for utilities over and across all roadways
shown on the plat.” 480 S.W.2d 77, 79 (Mo. App. 1972). This Conn held that “by this
insrrzmienr the original purchaser of plaintiffs’ [lot] was granted an easement . . . ‘running
with the land.’” 11. (emphasis added). However, again, best practice is to include the
easement in both the plat and the deed.

If a situation arises in which a developer attempts to include the easement in both
the subdivision plat and the conveyance deed, but the two descriptions conﬂict with one
another, the easement language in the conveyance deed controls. gee, Gardner v. Mafﬁtt,
74 S.W.2d 604 (Mo. 1934) (ﬁnding purported easement created in plat ineffective and
terms of easement contained in ﬁrst conveyance deed controlled). This is because an
owner is free to convey property “in any manner fairly agreed upon between [him] and
the party to whom the ﬁrst conveyance was made,” and no easement is actually created

until title severs between the dominant and servient estates. Gardner, 74 S.W.2d at 607

 

(“notwithstanding the recorded plat . . . , it cannot be said that there was an effective

   

 

grant of such easement or restriction until a severance of title occurred”). Because “[t]he

intention of the parties is the paramount and controlling question,” the wording in the
conveyance deed between the two parties controls. EL

Finally, if a developer does not include easements in the subdivision plat, he or
she can create easements on an individual basis with each lot owner at the time of sale in
the conveyance deeds, or even by contract after sale. _S_e_e_ Rosenbloom, 351 S.W.2d at
738 (“While ordinarily easements are created by grant or prescription, they may be
acquired by agreement”). Such easements will run with the land. id,

Here, Merdinian did not follow any of these procedures for creating an easement.
Woodling argues that the easement is valid because the Basement Deed was recorded and
the conveyance deed to the Folks alerted them that they took 1019 Forest “subject to
existing building lines, easements, conditions, restrictions, zoning regulations, etc., now
of record, if any.” There are three problems with this argument.

First, the Basement Deed was not a subdivision plat. It was rather a iaudowner’s
attempt to create an easement in his own property, which as stated, is insufﬁcient as a
matter of law. Second, while Woodling may argue that the later Boundary Adjustment
was a subdivision plat, it makes no mention of an easement. This in fact may indicate the
Healys did not intend to reserve an easement over 1019 Forest because they determined
the Boundary Adjustment obviated the need for one. Finally, the language in the
conveyance deed itseif, that the Polks took “subject to existing building lines, easements,
conditions, restrictions, zoning regulations, etc., now of record, if any,” was not speciﬁc

enough to create any easement. Rather, the easement language must be more certain and

 

 

in its terms than this standard form language. & id. at 73 8-39 (easement language must
be “certain and deﬁnite in its terms”).
Therefore, Woodling can claim no easement rights to any part of 1019 Forest.
The trial court did not err in granting summary judgment in favor of Woodling on his
claims for declaratory judgment and permanent injunction. Point denied.
Conclusion

Because there is no easement, Woodling’s claims on appeal must fail. We afﬁrm.

 

Philip M. Hess, P. 1., concurs.
Angela T. Quigless, J ., concurs.

 

 

