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Henley v. Cont'l Cablevision of St. Louis Cty., Inc. - 692 S.W.2d 825 (Mo. Ct. App. 1985)

Rule:

Where a servient owner retains the privilege of sharing the benefit conferred by an easement, it is said to be "common" or non-exclusive and therefore not subject to apportionment by the easement owner. Conversely, if the rights granted are exclusive of the servient owners' participation therein, divided utilization of the rights granted are presumptively allowable. Thus, insofar as it relates to the apportionability of an easement in gross, the term "exclusive" refers to the exclusion of the owner and possessor of the servient tenement from participation in the rights granted, not to the number of different easements in and over the same land.

Facts:

Pursuant to an indenture recorded on April 8, 1922, plaintiffs, as trustees of University Park subdivision, were expressly granted the right to construct and maintain electric, telephone and telegraphic service on or over the rear five feet of all lots in the subdivision, and to grant easements to other parties for the purposes of creating and maintaining such systems.  In July and August, 1922, the trustees conveyed an easement to Southwestern Bell Telephone Company to construct, reconstruct, repair, operate and maintain its lines for telephone and electric light purposes and similarly to Union Electric to keep, operate and maintain its lines consisting of cables, manholes, wires, fixtures and appurtenance. In 1981 and 1982, defendant Continental Cablevision of St. Louis County, Inc., exercised licenses acquired from both utilities to enter upon these easements, and erected cables, wires and conduits for the purpose of transmitting television programs. Plaintiff trutees filed an action for an injunction on December 29, 1983, seeking not only to enjoin a continuing trespass and compel the removal of defendant's wires and cables, but also seeking $300,000 in damages and the reasonable value of the use of plaintiffs' property for defendant's profit based upon quantum meruit. Defendants filed a motion to dismiss for failure to state a cause of action, which was supported by both the affidavit of defendant's chief executive officer and copies of the easements granted by plaintiffs' predecessors to Southwestern Bell Telephone Company and Union Electric. The motion to dismiss was sustained by the trial court. Thereafter, plaintiffs appealed, contending that the easements that granted the utilities were not apportionable and did not authorize the right to run television cables over the property in question.

Issue:

Were the easements apportionable, thereby, authorizing the right to run television cables over the property in question?

Answer:

Yes.

Conclusion:

The court held that the easements granted to the utility companies were exclusive, and therefore apportionable by the utilities to respondent. It further held that the addition of single coaxial cables to the subdivision's existing telephone poles did not increase the burden on the servient tenement beyond the scope of the easements' intended and authorized use.

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