The Law Office of Kurt H King

August 11, 2017

Merger of Title in Same Owner Extinguishes Easement by Prescription and Defeats Adverse Possession

Take, for example, a fact set where two adjoining but separate tracts of land were bought from different owners by the same husband and wife to form a single farm.  Then the husband and wife sell the farm in the two parts to separate new owners.  One new owner wants to claim an implied easement by prescription over the other new owner.  But did easement by prescription survive the merger of title into the husband and wife who owned both tracts of the real estate?

Answer:  No, the doctrine of merger extinguished easement by prescription (which is closely akin to taking of title by adverse possession in Missouri over ten years).

Long-standing Missouri law holds:

“One who owns the fee can not acquire an easement over it.  The easement, if

one existed, is merged into the fee.”  Marshall v. Callahan, 229 S.W.2d 730, 734-35 (Mo. Ct. App. S.D. 1950).

 

“[A]n easement is in general extinguished when the dominant and servient

estates are owned and possessed by the same owner.”  Maune v. Beste, 356 S.W.3d

225, 230 (Mo. Ct. App. E.D. 2011).

 

This result makes common sense–it would fly in the face of logic for the law to enable a person who owns all of a tract of land to turn on himself and try to claim he has made hostile or adverse use of his own land against his own interests.

 

Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Litigation, Personal Injury, General Matters

 

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