[AT] OT, Right of Way

[John Slavin]

I thought I might weigh in on this a bit, as it’s in my wheelhouse, so to speak.  First off, real estate law is one of those areas of law that is uniquely controlled by state law.  So interpretation in one state have little influence across state lines.  There are however, some general themes present in many states and might serve as a starting point.  In Missouri, access ways, or easements, can be created one of several ways.  1) Express Easement.  This one where someone gives an express easement.  Generally, it would need to be in writing and records.  2) Prescriptive easements, otherwise known as easements by adverse possession.  In Missouri, the adverse uninterupted use has to continue for 10 years.  3) Easements by implication or Implied Easements, or Apparent Easements.  These easements arise where the land was owned by one owner and then when the land was split that access was already in place over a defined route, so that the buyer of the servient estate should have known that the access would burden his land.  4)  Easements of necessity.  Arises where land is landlocked.  There are some cases where these are granted even though the land is not truly landlocked, but where access is VERY, VERY difficult, as in where there is a river separated in the part of the land that can be reached from land that can’t.

I should also point out that sometimes there are issues as to whether a public road still exists.  Just because the county quits maintaining it, doesn’t mean it’s closed.  If it once was a public road, and the public continues to use, it may still be a public road.

I do know something about this area of the law.  I have handled many of these cases, and one I litigated to success in the Missouri Court of Appeals.  See:  https://scholar.google.com/scholar_case?case=14481144519708285367&q=ira+e.+claybrook&hl=en&as_sdt=6,26

These cases are largely fact driven, and normally end up being he said/she said affairs.  And the problem is that many times, the people that know the facts are long since dead and hearsay rules prevent others from saying what the deceased was heard to say.  For example, one person says the use was with permission v. the other who says it was adverse use.  If is was adverse use that continues for 10 years, in Missouri, it could ripen into a prescriptive easement.

John C. Slavin
Attorney at Law
jslavin at marktwain.net

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