Copanas v. Loehr

876 S.W.2d 691, 1994 Mo. App. LEXIS 537, 1994 WL 97754
CourtMissouri Court of Appeals
DecidedMarch 29, 1994
DocketNo. 63068
StatusPublished
Cited by12 cases

This text of 876 S.W.2d 691 (Copanas v. Loehr) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Copanas v. Loehr, 876 S.W.2d 691, 1994 Mo. App. LEXIS 537, 1994 WL 97754 (Mo. Ct. App. 1994).

Opinion

PUDLOWSKI, Judge.

The litigation leading to this appeal involves appellant’s action concerning an easement and certain property located in a St. Louis County subdivision. The trial court dismissed Count III of appellant’s three count petition and subsequently entered judgment denying appellant’s relief requested in the first two counts. Appellant raises nine points on appeal. We affirm in part, reverse in part and remand.

In 1923, Robert S. Williams and Roberta F. Williams (Williams) filed a plat in the St. Louis County Recorder’s Office, subdividing the tract now known as Meramec Forest Subdivision. The plat shows seventy-one numbered lots and three lots marked by letter. The plat imposes, with exceptions for four lots, restrictions concerning the building of homes such as not permitting more than one house to be built on any one lot. The plat creates easements which provide the only ingress and egress to Ridge Road, the sole road appearing on the plat. With one exception the word “walk” appears on these easements.

The easement which is at the center of controversy in appellant’s first eight points is twenty feet wide and runs generally west to east (see exhibit, as modified, attached herein). This easement (primary easement) is located on a steep grade with the easternmost point lying at the bottom of this grade. Respondents, Karen Loehr and Robert Loehr (Loehrs), own lot 51 and portions of lots C and 50. Lots 50 and 51 are adjacent to and south of the primary easement. Respondent, Greg Sondlo, owns lots 52, 53, 54, 62, 63, 64 and a portion of lot C. Lots 52, 53 and 54 are adjacent to and south of the primary easement. Appellant purchased his property in 1984 and currently owns lots 55, 56, 57, and B which are all adjacent to and south of the primary easement. The plat shows that the primary easement provides the only ingress and egress for several of the adjacent lots. Appellant’s lots are located at the bottom of the grade and the Loehrs’ and Sondlo’s property is located uphill from appellant’s property. Appellant’s home is located on lot 55. A pathway exists across lot 54, which Sondlo owns, to appellant’s home.

In 1947, certain lot owners created a twelve foot easement to be used as a driveway for automobiles and vehicles. This easement (1947 easement) originates in lot 63, crosses lots 64, 62, 61, 60, 59 and ends in lot 58. These lots are all north of and adjacent to the primary easement. Prior to 1989, appellant owned lot 58 which is located at the bottom of the grade. On October 18, 1989, appellant sold this lot to Pete Rolfe who was not made a party to this action.

Appellant filed a three count petition, and in Count I alleged that a stone wall and fence extends approximately ten feet from the edge of the Loehrs’ property onto the primary easement. He also alleged the Loehrs park their vehicles on the primary easement and use this and two other “walk” easements in the subdivision for motor vehicle access to their property. Appellant alleged further that Sondlo erected a fence and concrete block extension which obstructs the primary easement and that Sondlo also uses this and two other “walk” easements for motor vehicle access to his property. Appellant asked for a declaration that he has the right to use the following easement for motor vehicle access to his property: beginning in lot 41 at Ridge Road, proceeding generally south down a twenty foot walk easement located on lot 41; proceeding generally east upon another twenty foot walk easement which is adjacent to lots 41, 50 and A; proceeding generally east along the primary easement; and [694]*694terminating at the eastern most point of the primary easement adjacent to lots 58 and B. With the exception of Rolfe, appellant named as defendants other property owners whose lots are adjacent to the easements at issue.1 In Count II, appellant sought the establishment of a private road pursuant to § 228.342 RSMo Cum.Supp.1993. Appellant alleged in Count III that he and his predecessors in title had exclusively occupied and possessed a portion of the property on lot 54, which comprises a triangular tract lying east of and including the pathway, for more than ten years.

After appellant presented his case-in-chief, the trial court dismissed Count III of his petition. The court subsequently entered findings of fact, conclusions of law and judgment denying appellant the relief he requested in Counts I and II. The following findings and conclusions are relevant for purposes of this appeal: 1) according to the plat there is a twenty foot easement (primary easement) that allows walkway access to and from appellant’s lots, and there is no motor vehicle access to appellant’s lots by that easement; 2) although the Loehrs and Sondlo have partially obstructed the primary easement, these obstructions have not unreasonably obstructed appellant’s walkway access to his property over this easement; 3) the walking access to appellant’s property does not meet his reasonable needs for ingress and egress to and from his property; 4) there was no evidence of obvious benefit to the dominant estate and burden to the subservient portion at the time of conveyance, relative to vehicular traffic or any evidence of reasonable necessity for the easement other than through lot 58 which appellant voluntarily relinquished thereby creating lack of access; 5) the evidence reveals that the roadway easement to appellant’s property should be through lot 58 and connect with the 1947 easement, appellant failed to join the owner of lot 58 and the court lacks jurisdiction over the necessary parties to grant either an easement by implication or of strict necessity which are supported by the evidence. Appellant appeals certain findings and conclusions of the trial court and its dismissal of Count III.2

The trial court’s judgment or decree will be affirmed 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. We defer to the trial court’s resolution regarding credibility of witnesses. Rule 73.01(c).

In his first point, appellant argues the trial court erred in finding the Loehrs’ and Sond-lo’s partial obstructions of the primary easement did not unreasonably obstruct appellant’s walkway access over this easement. We first address the stone wall and fence which extends ten feet from the Loehrs’ property onto the primary easement. It appears from Karen Loehr’s testimony that there is no dispute that the fence and stone wall does extend approximately ten feet onto the primary easement.

When a structure blocks or intrudes upon an easement, the court considers what is essential to fulfillment of the purpose and intent of the easement and whether the obstruction destroys or substantially diminishes the use and enjoyment of the easement. See RFS, Inc. v. Cohen, 772 S.W.2d 713, 716-17 (Mo.App.1989). The rule is somewhat different for fences. If, as in this case, the exclusion of the erection of a fence is not specifically set out in a grant or easement then the court considers the following factors: 1) the purpose for which the grant was made; 2) the intention of the parties as gleaned from the circumstances surrounding the grant; 3) the nature and situation of the property; and 4) the manner in which the easement is used. Moschale v. Mock, 591 S.W.2d 415, 421 (Mo.App.1979). The Loehrs contend the rule regarding fences is applicable in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
876 S.W.2d 691, 1994 Mo. App. LEXIS 537, 1994 WL 97754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/copanas-v-loehr-moctapp-1994.