Dominent Tenement question

[H20worth]

I live in the state of Missouri. I have an easement (Dominant Tenement) to access my land. The land is landlocked, and the easement is the only access to my land. There have never been any structures, electricity, or water wells on the land. Since it was divided from another parcel 17 years ago, the land has never been used for anything but recreational activities. No actual roadbed was ever made. The easement is only cleared land. Now I want to upgrade and make a gravel road on the easement to my property. To make the easement level, large basketball sized boulders have been placed in a gully across the easement. Here are my questions: Can the owner of the servient tenement help himself to the boulders that were on the easement before either of us owned the property? This is creating a dip in an otherwise level area for me to drive on. And, when I have gravel delivered and spread on the dominant tenement, can the owner of the servient tenement help himself to the gravel that I have delivered since it is on his land?
We have talked to the deputy sheriff and he says the boulders belong to neither of us. He also says if I have gravel delivered on the easement, the owner of the servient tenement could use that gravel for his own personal use since it's on his land.

 

[justalayman]

Here are my questions: Can the owner of the servient tenement help himself to the boulders that were on the easement before either of us owned the property?

they are his rocks so yes.

This is creating a dip in an otherwise level area for me to drive on.

well, he can't do that though

And, when I have gravel delivered and spread on the dominant tenement, can the owner of the servient tenement help himself to the gravel that I have delivered since it is on his land?

no. That would be theft or some other illegal taking of anothers property.

We have talked to the deputy sheriff and he says the boulders belong to neither of us. He also says if I have gravel delivered on the easement, the owner of the servient tenement could use that gravel for his own personal use since it's on his land.

the sheriff is wrong on both counts. Rocks on his land are his. Dirt you bought is yours.

 

[LdiJ]

they are his rocks so yes.



well, he can't do that though

no. That would be theft or some other illegal taking of anothers property.


the sheriff is wrong on both counts. Rocks on his land are his. Dirt you bought is yours.

I think I disagree. re-read the whole thing.

 

[justalayman]

I think I disagree. re-read the whole thing.

what part?

I re-read it and not seeing what you are apparently

 

[Terminus]

Interesting

For the boulders....It may well hinge on how the got onto the property. If it can be proven that the rocks were brought in by the dominant estate for the purpose of developing access....Then the are the dominant estates. Now....if the are just in the dip and you used them, I would say the belong to the serviant estate. The key in all this being able to prove WHO and HOW the stones came to be in the dip.

The Dip- It is kind of dependent upon the above and who own's the stones. If they were purchased and placed by the dominant estate, then they can't be moved. Now if they are the serviant estates stones....They can be moved. The key with an access easement is the serviant estate cannot hinder/restrict/block your access. Removing their stones from a dip doesn't really fill those requirements as their removal doesn't stop you from accessing your parcel. It may make access harder for you....but doesn't limit it.

The gravel- If you build a gravel driveway and serviant estate uses the driveway also...That is definitely acceptable. Now if the serviant estate takes your gravel someplace else for their use....That is stealing. If you can prove that you paid for the gravel to be installed for the purpose of building a driveway on your easement....The gravel is yours.

I highly recommend talking to a lawyer on this as the boundary issues are very minor....and this is much more about ownership of personal property.

 

[justalayman]

Terminus;3256907]For the boulders....It may well hinge on how the got onto the property. If it can be proven that the rocks were brought in by the dominant estate for the purpose of developing access....Then the are the dominant estates.

OP clearly stated the rocks in question were present before he or the servient tenant came into the picture. That makes them the servient tenant's rocks without question.

Now....if the are just in the dip and you used them, I would say the belong to the servient estate. The key in all this being able to prove WHO and HOW the stones came to be in the dip.

If the dominant tenant placed the rocks such as to use them, oh well too bad if he did not have the permission of the servient tenant. The servient tenant is not allowed to deconstruct anything the dominant tenant improved but that is a separate issue from the servient tenant taking the rocks.

The gravel- If you build a gravel driveway and serviant estate uses the driveway also...That is definitely acceptable. Now if the serviant estate takes your gravel someplace else for their use....That is stealing. If you can prove that you paid for the gravel to be installed for the purpose of building a driveway on your easement....The gravel is yours.

it was clearly stated the dominant tenant purchased the gravel. As such, it belongs to the dominant tenant until such time is it used to construct the roadway. At that time, it becomes "one with the land" and ownership transfers to the servient tenant. That still does not allow the servient tenant to take the gravel from where it has been placed to construct a roadway. We get back to the servient tenant not being allowed to damage or deconstruct what the dominant tenant has built.

 

[H20worth]

Clarifying

The rocks in the gully or dip were placed there by the people who cleared the land originally to gain access to the back portion of their land along the edge of the property . That farm land was then divided into smaller parcels 17 years ago. Our property is one of those divided parcels. The rocks piled in the gully are about 20 feet deep. If the majority of the rocks are moved more rocks will have to be hauled in to gain access to our property. We will not be able to access our property by automobile without them.

 

[justalayman]

did you move the rocks from an area inside or outside of the defined easement?

 

[H20worth]

did you move the rocks from an area inside or outside of the defined easement?

As I stated in the clarifying statement above. The rocks were put there by the people who cleared the land for farming. It was probably done with a horse and wagon. The man who owns the land to the East of us has lived there all of his life. He is in his upper 70s and said they have been there as long as he can remember. We just moved the existing rocks to level it for access with a vehicle.

 

[154NH773]

I agree with justalayman, although the timing and placement of the boulders are certainly relevant.

It sounds like the boulders were placed there by the original owner of the total property before it was subdivided, and the purpose was to enable access to the back property by vehicle. If that is the case, and then the property was subdivided, and the boulder filled area was designated as the access easement, then the servient tenant would have no right to remove those boulders because he would be altering the conditions under which the easement was granted.

 

[justalayman]

As I stated in the clarifying statement above. The rocks were put there by the people who cleared the land for farming. It was probably done with a horse and wagon. The man who owns the land to the East of us has lived there all of his life. He is in his upper 70s and said they have been there as long as he can remember. We just moved the existing rocks to level it for access with a vehicle.

you have not answered the question, either in this post or in the clarifying statement previously posted.

were the rocks you used inside or outside of the defined easement when you moved them?

 

[H20worth]

you have not answered the question, either in this post or in the clarifying statement previously posted.

were the rocks you used inside or outside of the defined easement when you moved them?

I'm sorry for not answering. The rocks that we used are inside the defined easement. We moved some of them to make it level.

 

[LdiJ]

I'm sorry for not answering. The rocks that we used are inside the defined easement. We moved some of them to make it level.

Just one little bit of advice...if you end up having to either litigate the issue or have to deal with authorities on the issue you should be aware that its not "dominant tenement", its "dominant tenant".

 

[justalayman]

Just one little bit of advice...if you end up having to either litigate the issue or have to deal with authorities on the issue you should be aware that its not "dominant tenement", its "dominant tenant".

well...


dominant tenant is the owner of the dominant tenement.

Just as the servient tenant owns the servient tenement.

tenement is synonymous with estate in this use.

 

[justalayman]

I'm sorry for not answering. The rocks that we used are inside the defined easement. We moved some of them to make it level.

I know they are now but where were they when you moved them?

never mind. Here is what I was wanting to explain.


if they were outside of the defined easement, you took them illegally. You would have had no right to use materials owned by the servient tenant for any purpose. If they were inside the defined easement when you moved them, they were still owned by the servient tenant and he could do what he wanted with them, including removing them from your road construct although he could not damage the improved roadway without liability.