" They rely on the general rule set forth in their cited case of Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W.2d 501, 506, as follows: "`Where the owner of land has, by any artificial arrangement, effected an advantage for one portion, to the burdening of the other, upon a severance of the ownership, the holders of the two portions take them, respectively, charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance of the portion first granted.' * * * The benefit must be reasonably necessary to the enjoyment of the dominant estate, and apparent at the time of the severance by the original owner." See also Foxx v. Thompson, 358 Mo. 610, 216 S.W.2d 87; Greisinger v. Klinhardt, 321 Mo. 186, 9 S.W.2d 978; Bussmeyer v. Jablonsky, 241 Mo. 681, 145 S.W. 772, Ann.Cas. 1913C, 1104, 39 L.R.A., N.S., 549; Henderson v. La Capra, Mo.App., 307 S.W.2d 59; and the annotations in 34 A.L.R. 233; 100 A.L.R. 1321 and 164 A.L.R. 1001. The burden of establishing an easement by implied grant is on the person asserting its existence, and that proof must be by what is sometimes referred to as clear, cogent and convincing evidence. In addition, it is proper and highly desirable that "the tendency of the courts, as a general rule, is to discourage implied grants of easements, since the obvious result, especially in urban communities, is to fetter estates, retard buildings and improvements, and violate the policy of recording acts."
Riggs v. City of Springfield, supra, 126 S.W.2d at 1149. See also Holian v. Guenther, 471 S.W.2d 457, 459 (Mo. 1971) and Henderson v. La Capra, 307 S.W.2d 59, 63 (Mo.App. 1957). This case is somewhat complicated by the fact that the haul road in question was used by three different parties over the relevant period for two distinct uses.
These were affirmative propositions on which she had the burden of proof. Henderson v. La Capra, 307 S.W.2d 59 (Mo.App. 1957); Ackley v. Ackley, 257 S.W.2d 404, 407 [3, 4] (Mo.App. 1953). In support of her burden, defendant put in evidence the pleadings in Leiweke v. Link, supra.
Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552, 553, and cases cited [1]. Relying upon the rule stated in Chapman v. Schearf, supra, and upon Henderson v. La Capra, Mo.App., 307 S.W.2d 59, plaintiffs maintain that there is no evidence that the passway over plaintiffs' land was acquired as an open passway; that all witnesses familiar with the passway testified to gates across the passway at both ends; that the past existence of such gates cannot be disputed; that the record shows that it was necessary in the past to enclose the field crossed by the passway; that plaintiffs purchased the property in 1963 and sometimes kept livestock in that field, and that the horses got out when the gates were opened up and the barbed wire cut; that gates are not practical hindrances or unreasonable obstructions and that the inconvenience to Clara Guenther in opening and closing the gates and carrying the padlock keys will be small, whereas if plaintiffs cannot maintain gates and padlocks they will either be subjected to the expense of fencing on both sides of the passway for its entire length or be required to let the field lie fallow for lack of protection to crops and animals. "If
Moreover, the foundation of such an easement "`must be necessity and not convenience.'" Baetje v. Eisenbeis, 296 S.W.3d 463, 468 (Mo.App. 2009) (quoting Henderson v. La Capra, 307 S.W.2d 59, 64 (Mo.App. 1957)). Given the record of usage on and from the Arnolds' side of the ditch, necessity cannot justify the Mock easement.
Orvis v. Garms, 638 S.W.2d 773, 778 (Mo.App. S.D. 1982); McDougall v. Castelli, 501 S.W.2d 855, 858-59 (Mo.App. 1973). An easement by necessity will not arise from proof that the easement will be convenient. Henderson v. La Capra, 307 S.W.2d 59, 64 (Mo.App. 1957). "The foundation of the easement must be necessity and not convenience."
For an easement by necessity to arise, there must have been: 1) a unity of ownership of the dominant and servient estates; 2) the unity of title must have been severed by a conveyance in one of the tracts, resulting in the grantor or grantee owning a parcel which is landlocked; and 3) the use of the servient estate by the dominant estate must be necessary. See King v. Jack Cooper Transport Co., Inc., 708 S.W.2d 194, 197 (Mo.App.W.D. 1986) (plaintiff and defendant must have a common source of title to their properties; severance of estate must have left owner of one of the severed parcels without means of ingress or egress); Henderson v. LaCapra, 307 S.W.2d 59, 64 (Mo.App.W.D. 1957) (foundation of easement must be necessity and not convenience). Although the trial court used the term "prescriptive easement" in its grant to the Gaffneys, we conclude the trial court meant "easement by necessity.
Di Pasco stands for the proposition that such expensive and difficult alternative means of access do not negate a finding of reasonable necessity and do not prevent the recognition of a visible easement. See also Henderson v. La Capra , 307 S.W.2d 59, 63 (Mo. App. 1957) (finding implied easement along driveway for vehicular access to rear of apartment building because such access deemed necessary for enjoyment of building and its efficient operation); Greisinger v.Klinhardt , 321 Mo. 186, 9 S.W.2d 978 (1928) (finding implied easement to entire lake adjacent to resort because the resort and the portion of the lake thereon would be worthless without an easement over entire lake). Many other jurisdictions take a similar approach.
Stickle v. Link, 511 S.W.2d 848, 854 (Mo. 1974); see Holian v. Guenther, 471 S.W.2d 457 (Mo. 1971). It is a qualified right for a particular purpose. Henderson v. La Capra, 307 S.W.2d 59, 63 (Mo.App. 1957). Therefore no different or greater use can be made of the prescriptive easement than the use under which it was gained.
Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W.2d 501 (1950); George v. Crosno, 254 S.W.2d 30 (Mo.App. 1952); and Schnider v. M.E.H. Realty Inv. Co., 239 Mo.App. 546, 193 S.W.2d 69 (1946). As recognized in Henderson v. La Capra, 307 S.W.2d 59, 64 (Mo.App. 1957), one is not entitled to an easement "as a way of necessity" if he can provide a "substitute way" on his own land and "this is true even if the substituted way is less suitable, quite inconvenient and involves substantial cash outlay". Defendant Hinson, by his own testimony, admitted that the restrooms located in the northwest corner of the grocery store building could be connected to the sewer outlet located in the southwest corner of the building but that doing so would be more inconvenient and expensive than installation of a sewer line on plaintiffs' property along the west side of the building.