Missouri courts have developed the following four-factor test for the establishment of a visible easement: (1) there must have been a unity of common ownership followed by a separation of title of the subject property into dominant and servient estates; (2) the purported easement must have been constructed, altered or artificially arranged by the common owner so as to constitute 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 purported easement must have been used long enough before the separation of title and under such circumstances so as to show that the alteration or artificial arrangement was intended to be permanent; and (4) the purported easement must be reasonably necessary for the full beneficial use and enjoyment of the dominant estate.
A corporate property owner filed an action for trespass and ejectment against an adjoining landowner concerning a portion of the adjoining landowner's paved driveway that was located on the property owner's land. The trial court ruled in favor of the property owner. On appeal, the adjoining landowner contended that the trial court erred in rejecting his argument that he had an implied or "visible" easement on the property owner's land.
Does the adjoining landowner have a implied or "visible" easement on the property owner's land?
The court concluded that the adjoining landowner had established all four elements for an implied easement: (1) the driveway constituted an obvious and visible benefit to the residential lot; (2) it was constructed as a permanent means of access to the adjoining landowner's garage; (3) it was used for many years as access to the garage under unity of ownership prior to the subdivision of the lots; and (4) was reasonable necessary for the full beneficial use and enjoyment of the premises. The implied easement arose at the time of severance by the common owner and by definition would not appear of record. Although the adjoining landowner would not be landlocked without the implied easement, he would not be able to use his garage or his driveway. In contrast to an easement by necessity that required proof of absolute necessity, to establish an implied easement only required reasonable, not absolute, necessity.