Kallash Revocable Inter Vivos Trust v. Fitzsimmons

644 S.W.3d 28

KALLASH REVOCABLE INTER VIVOS TRUST, Appellant,

v.Sean T. FITZSIMMONS and Stacie S. Fitzsimmons, Respondents.

No. ED 109154

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: April 12, 2022

James D. Burlison, 103 Community Bank Plaza, Suite A, Troy, MO 63379, for appellants.

Dwayne A. Johnson, 220 Salt Lick Road, St. Peters, MO 63376, for respondents.

Gary M. Gaertner, Jr., P.J.

Introduction

This case highlights the tension between the property rights of parties who hold easements entitling them to particular uses of land they do not own, and the rights of the owners of such land encumbered by such easements. Specifically, this dispute concerns the use of a 70-foot-wide easement (Easement) benefitting a land-locked property owned by the Dennis Robert Kallash Revocable Inter Vivos Trust Indenture dated October 10, 1997 (Appellant), with Dennis Kallash (Kallash) as the trustee. The Easement crosses property owned and occupied by Sean T. Fitzsimmons (Fitzsimmons) and Stacie S. Fitzsimmons (collectively, Respondents), upon which Respondents had built a number of permanent structures. The trial court found the Easement was non-exclusive and was intended for ingress and egress, including the installation of utilities. The trial court additionally found Appellant had shown reasonable use sufficient to pass over at least half of the Easement and therefore required Respondents to remove some, but not all, of the obstructions in the Easement. We find the trial court's order to remove specific items is unclear, inconsistent, and unsupported by substantial evidence. We further find Appellant failed to submit specific evidence regarding what he reasonably needed for ingress and egress, including utilities. Therefore, we affirm in part and reverse and remand in part.

Background

In 1987, Kallash acquired a tract of property in Warren County that included both parcels of property at issue here: Appellant's land-locked parcel (the dominant estate) and Respondents’ parcel (the servient estate). The servient estate sits between the dominant estate to its west and a country road (Bethel Road) to its east. Kallash sold the servient estate in 1988 to a predecessor in interest of Respondents. In the deed conveying the land in 1988, Kallash reserved the Easement, which is a 70-foot-wide strip of land connecting Kallash's remaining land-locked parcel to Bethel Road, on the servient estate's eastern border. The 1988 deed's legal description specified the Easement's location in detail but did not contain any language stating its purpose or intent regarding exclusivity of use. In 1989, Kallash hired a bulldozer to cut a dirt pathway over the Easement, which he and others used for foot traffic over the years.

Both parcels changed ownership a number of times, and in 1997, the dominant estate was titled to Appellant, Kallash's trust. Respondents obtained title to the servient estate in 1999. In the years that followed, Respondents installed the following items within the 70-foot-wide Easement: a block wall extending completely across the Easement in one location and partially across the Easement in another location, a well and hydrant in the northern half of the Easement, an electrical box with wire underground in the southern half of the Easement, and gravel across the entire 70-foot Easement. Additionally, Respondents had installed a portable shed just north of the Easement border, with the corner of the portable shed extending slightly into the Easement.

In April of 2019, Kallash, as Appellant's trustee, advised Respondents that he intended to utilize the Easement and construct a road. Fitzsimmons indicated he would impede Kallash's planned use of the Easement and threatened to throw nails onto the Easement. Fitzsimmons also trespassed at Kallash's residence on one occasion in the early morning hours, stating that he could go wherever he wanted, whenever he wanted. This caused great alarm to Kallash's wife, Toni Kallash.

On behalf of Appellant, Kallash sought an injunction in the trial court prohibiting Respondents from interfering with his construction of a road over the Easement to provide access to the dominant estate from Bethel Road. Respondents filed a counterclaim for declaratory judgment, requesting that the trial court declare the Easement void, or alternatively, determine its scope. After a bench trial, the trial court granted both declaratory and injunctive relief. Regarding the former, the trial court concluded that the Easement was a valid easement appurtenant,¹ which ran with the dominant estate. The trial court further declared that the Easement was non-exclusive, and its intended use was for ingress and egress, including the installation of utilities.

In its consideration of Appellant's request for injunctive relief, the trial court further found Appellant showed its reasonable use of the Easement includes ingress and egress for roadway and utility traffic sufficient to pass over at least half of the Easement. The trial court ordered Respondents to remove the electrical box and gravel within the southern half of the Easement and the block wall in its entirety from both the northern and southern halves of the Easement. The trial court found there was no evidence that the gravel, well, hydrant, and portable shed in the northern half of the easement would substantially interfere with Appellant's reasonable use of the Easement and thus need not be removed. The court further enjoined Fitzsimmons from harassing, threatening, intimidating, or interfering with the construction of improvements or placement of utilities on the Easement. This appeal follows.

Standard of Review

In reviewing a court-tried case, we will affirm the judgment unless it is unsupported by substantial evidence, against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We defer to the trial court's findings of facts, but we review de novo the trial court's application of law to those facts. Adams v. Certain Underwriters at Lloyd's of London, 589 S.W.3d 15, 26 (Mo. App. E.D. 2019).

Discussion

Appellant raises four points on appeal. In Points I and II, Appellant argues that the trial court's injunctive relief is against the weight of the evidence, in that the uncontroverted evidence established that all the items within the Easement substantially interfered with Appellant's reasonable use of the Easement. In Points III and IV, Appellant attacks the trial court's declaratory judgment, but in the argument section of each of those points, Appellant focuses on the trial court's injunctive relief. We address Points III and IV in note 2, infra. Neither party disputes the trial court's declaratory conclusions that the 70-foot Easement is valid and that its purpose is for ingress and egress, including the installation of utilities, and such conclusions were in Appellant's favor. We affirm the judgment in this respect.²

Simply put, Appellant takes issue on appeal with the fact that the trial court declined to order Respondents to remove the well, hydrant, gravel, and portable shed³ from the northern half of the Easement. We discuss Appellant's arguments in Points I and II together.

Underlying Appellant's arguments on appeal is the tension in Missouri between the legal rights of those who hold easements on property they do not own (dominant owners) and the legal rights of the owners of that same property (servient owners). "An easement is a non-possessory interest in the real estate of another ..., [which] confers a right of one person to use the real estate of another for a general or specific purpose." Burg v. Dampier, 346 S.W.3d 343, 353 (Mo. App. W.D. 2011) (citing Farmers Drainage Dist. of Ray Cnty. v. Sinclair Refining Co., 255 S.W.2d 745, 748 (Mo. 1953) ). An easement is a property right that can be enforced at law or in equity. Id.; see also Baker v. Walnut Bowls, Inc., 423 S.W.3d 293, 298 (Mo. App. S.D. 2014) (easement is property right that easement holder does not lose simply due to non-use); State ex rel. Mo. Highways & Transp. Comm'n v. Muslet, 213 S.W.3d 96, 99 (Mo. App. W.D. 2006) (easement is property right that easement holder must be compensated for when taken).

Here, the 1988 deed creating the Easement was specific regarding the Easement's size and location, but the 1988 deed did not articulate the Easement's purpose. In such instances, an easement holder is entitled to "unlimited reasonable use" of the easement consistent with the purpose, as determined by the trial court, for which the easement was created. Maasen v. Shaw, 133 S.W.3d 514, 518-19 (Mo. App. E.D. 2004). Here, the trial court determined that the purpose of the Easement was for ingress and egress, which also includes the installation of utilities within the Easement. Thus, Appellant enjoys unlimited reasonable use for ingress and egress. See id. at 519. Additionally, the nature of the Easement here is non-exclusive, meaning the servient owner may participate with the dominant owner in the use of the easement property. Id. at 518. The issue here is to what extent Respondents may also use Appellant's Easement.

"Generally, the right of use of an easement is paramount to every right of the owner of the fee which is inconsistent with such use." Murdaugh v. Patterson, 435 S.W.3d 689, 693 (Mo. App. S.D. 2014) (quoting Kan. City Power & Light Co. v. Kan. City, 448 S.W.2d 612, 617 (Mo. 1969) ) (internal quotation and alteration omitted). However, "an easement's use is limited to the purposes for which it was created." Maasen, 133 S.W.3d at 519. Thus, Appellant retains unlimited reasonable use of the Easement, but only as a right of way. Appellant's reasonable use of the Easement as a right of way is paramount to any inconsistent use by Respondent.

A servient owner "retains the right of full dominion and use of the land affected by the easement ... in any way that does not substantially interfere...