Update #2
Hi Gang,
Well it’s been awhile. I have learned a lot from this expensive experience. I thank all of you that have replied for your thoughts and support. This may be a little long.
I feel a lot more confident now about prevailing in our case.
I was down at the county mapping and appraisal office the other day looking for the building permit of when the plaintiffs’ property added the (covered patio) that she calls a car port. Well the lady that works for the appraisal office shows it coded as a P.C. which stands for Patio Covered. Unfortunately it doesn’t say when it was added. So I get a copy and give it to my attorney. He said we need to get it certified. Well as a matter of policy that office doesn’t certify any of their records. Now what??? Subpoena the clerk to testify that that record came from her office?? My attorney is working on that issue.
What was really interesting was the document shows the date that the houses (improvements) were built. Plaintiffs 1940 our’s 1962. It clearly shows that our house and hopefully driveway were built after the separation of ownership of the property (remember 1 guy owned both at one time) Since she has her own driveway and garage that should defeat element 4. So I really need to have this document certified so that plaintiff’s attorney can’t claim its hear say.
In Missouri to prove easement by implication.
Implied easements require that:
(1) There has been a unity of common ownership followed by a separation of title of the subject property into dominant and servient estates.
(2) The common owner must have constructed, altered or artificially arranged the easement so that it constituted an open, obvious, and visible benefit or advantage to the claimant’s property and a burden to the servient portion of the premises.
(3) The easement must have been used long enough before separation of title and under such circumstances so as to show that the alteration or artificial arrangement was intended to be permanent.
(4) The easement must be reasonably necessary for the full beneficial use and enjoyment of the dominant estate.
It looks like all we have to prove is that all use was by permission. The elements for a prescriptive easement is the same as for adverse possession.
From Missouri revised statutes Secton 516-010 under evidence
http://www.moga.mo.gov/statutes/c500-599/5160000010.htm
(1956) Open, continuous and uninterrupted user of real estate for statutory period creates presumption that user was adverse but the presumption disappears on appearance of some substantial evidence, however slight, that user was permissive. Bridle Trail Ass'n. v. O'Shanick (A.), 209 S.W.2d 401.
The 5 elements of adverse possession which must be proved are:
1. Actual Possession. As the recently released Appellate decision reiterates, you must “do” something to land such as clear, fence, cultivate, etc. to be in actual possession. Possessing the the land through “color of title” also suffices.
2. Hostile. The adverse possessor cannot be using the land with the permission or consent of the true record owner.
3. Open and Notorious. The possession must be conspicuous, not hidden from the public or true record owner.
4. Exclusive. The adverse possessor must not be sharing the land with others and must exclude “trespassers.”
5. Continuous. Except for certain circumstances, elements 1-4 must occur for a continuous 10 year period.
I hope that this will help others in the future. If you are going to let someone use your property put it in writing and have it recorded at the court house.
I’m lucky that my job provides me with time off in the middle of the week. I ask my attorney what can I do to help and save some money. He will say get this document and that document if you can. It has saved me some serious bucks.
Will keep you posted,
Woody,