Summary of Hillside Development Co. v. Fields, Ct of App.  MO [1996]

Relevant Facts: Originally the property was owned by Nelson who constructed a house and garage.  To access the garage a driveway encircled the eastern side extending to the rear.  Nelson died and left all his interests to the Shriner’s Hospital.  It in turn sold off the unimproved land to Pl including nearly all the driveway.  It retained the land the house was situated and reserved E of ingress/egress to prevent landlocking the house.  The E failed to describe the curved section of the driveway.  The hospital sold the house and E to Df/Fields.

Legal Issue(s): Whether the use of the driveway to Df’s garage is reasonably necessary for his full beneficial use and enjoyment thus a visible E is implied in order to allow full use/enjoyment?

Court’s Holding: Yes

Procedure: Trial ct ruled on cross Summaries in favor of Pl; Reverse and remand.

Law or Rule(s): There must have been unity of common ownership followed by separation of title; the E 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 claimant’s property and burden to the SE; The E must have been used long enough before the separation of title so as to show that the alteration or artificial arrangement was intended to be permanent; The E must be reasonably necessary for the full use and enjoyment of the DE. =Visible E or Implied E.

Court Rationale: There is no disputing the common unity;  The driveway was constructed at the time the house was built by Nelson; The house and driveway had been used for 17 years prior to separation of title; (An implied E arises at the time of severance by the common owner and be definition does not appear of record), A garage specifically constructed for use by the DE at the time prior to separation of title to the property is reasonably necessary for the full beneficial use and enjoyment of the premises.  A visible E would be implied in order to allow the Df full enjoyment of his property.

Plaintiff’s Argument: Having the garage is a mere convenience and not reasonably necessary where the owner has an alternative means to access the property.

Defendant’s Argument: The original use of the property with access to the garage implied an E of right to use.