DAVID K. MURDAUGH and DENISE M. MURDAUGH, Husband and Wife, Plaintiffs-Respondents v. RICHARD PATTERSON and NORMA PATTERSON, Husband and Wife, and MARK A. PATTERSON, a Single Person

DAVID K. MURDAUGH and DENISE )
M. MURDAUGH, Husband and Wife, )
)
Plaintiffs-Respondents, )
)
vs. ) No. SD32619
)
RICHARD PATTERSON and NORMA ) Filed: July 9, 2014
PATTERSON, Husband and Wife, and )
MARK A. PATTERSON, a Single Person, )
)
Defendants-Appellants. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Michael J. Cordonnier, Circuit Judge

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS

This is an appeal from a declaratory judgment, and it involves a dispute between

neighbors about the proper scope of an express ingress-and-egress easement. Norma

Patterson and her son, Mark A. Patterson ("Defendants"), appeal the amended judgment

("the Judgment") that declared the extent of their rights in a 35-foot-wide, deeded easement

("the Easement") across property owned by David K. Murdaugh and Denise M. Murdaugh,

husband and wife ("Plaintiffs").1

1
We may occasionally use the first names of members of the Patterson family solely for purposes of clarity; no
disrespect or undue familiarity is intended. Richard Patterson, Norma's husband and Mark's father, died
shortly after the Judgment was entered.

1
 Defendants' three points claim the trial court committed a total of five reversible

errors: 1) "ruling that [Defendants] 'may' have the right 'to improve an additional portion of

the [E]asement for their reasonable ingress and egress' if they 'need' to do so"; 2) enjoining

Defendants "from 'making any use of the [Easement] that is inconsistent with'" the Judgment

because Defendants' "deeded right to use the [E]asement for ingress and egress to their

property is paramount to any inconsistent use that [Plaintiffs] might make of it"; 3) enjoining

Defendants from "'making any use of the [Easement] that is inconsistent with'" Plaintiffs'

right to plant and cultivate hay on the non-graveled portions of the Easement; 4) finding that

Defendants "'have no right to interfere with'" Plaintiffs' cultivation of hay because

Defendants' rights to have, maintain, repair, and expand the roadway (within its deeded size)

are paramount to Plaintiffs' right to cultivate hay within the Easement; and 5) finding that

Plaintiffs "have 'the right to have, or refuse to have, a gate located on the easement' because

the [trial] court failed to apply the proper four-part test to determine whether [Plaintiffs]

would have the right to install a gate[.]"

Because several portions of the Judgment challenged by Defendants address issues

that were not ripe for judicial declaration, we affirm the Judgment in part, reverse in part,

and remand the matter to the trial court to enter a judgment consistent with this opinion.

Governing Law and Applicable Principles of Review

We first note that "[a] declaratory judgment is not a general panacea for all real and

imaginary legal ills." Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 25

(Mo. banc 2003). A declaratory judgment should not be used to decide "hypothetical or

speculative situations that may never come to pass." Id. Instead, there must be:

(1) a justiciable controversy that presents a real, substantial, presently-
existing controversy admitting of specific relief, as distinguished from an

2
 advisory decree upon a purely hypothetical situation; (2) a plaintiff with a
legally protectable interest at stake, "consisting of a pecuniary or personal
interest directly at issue and subject to immediate or prospective
consequential relief;" (3) a controversy ripe for judicial determination; and
(4) an inadequate remedy at law.

Id. "Ripeness is determined by whether 'the parties' dispute is developed sufficiently to

allow the court to make an accurate determination of the facts, to resolve a conflict that is

presently existing, and to grant specific relief of a conclusive character.'" Schweich v.

Nixon, 408 S.W.3d 769, 774 (Mo. banc 2013) (quoting Mo. Health Care Assn v. Attorney

Gen. of Mo., 953 S.W.2d 617, 621 (Mo. banc 1997).

An easement is a non-possessory interest in the real estate of another.
The interest is not an interest in title, but confers a right of one person to use
the real estate of another for a general or specific purpose. Farmers
Drainage Dist. of Ray Cnty. v. Sinclair Refining Co., 255 S.W.2d 745, 748
(Mo.1953). Though the right conferred by an easement is not a possessory
right, it is nonetheless a right that can be enforced at law or in equity.

Burg v. Dampier, 346 S.W.3d 343, 353 (Mo. App. W.D. 2011).

"An easement appurtenant creates a dominant tenement (the land which benefits

from the easement) and a servient tenement (the land which is burdened by the easement)."

Id. "The owner of [a] servient estate has the right of full dominion and use of a roadway

strip of land, but he cannot substantially interfere with its reasonable use by the easement

owner." Beiser v. Hensic, 655 S.W.2d 660, 663 (Mo. App. E.D. 1983). As a result, "[t]he

servient estate owner may not make the easement less useful or convenient." Id. "The fact

that a grant [of an easement] does not include a catalogue of the myriad of imaginable

interferences does not sanction the unmentioned." Miss. River Transmission Corp. v.

Wachter Constr., Inc., 731 S.W.2d 445, 447-48 (Mo. App. E.D. 1987).

Generally, the right of use of an easement "is paramount to every right of the owner

of the fee which is inconsistent with such use[.]" Kansas City Power & Light Co. v. Kansas

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City, 448 S.W.2d 612, 617 (Mo. 1969). But "an easement's use is limited to the purposes for

which it was created." Maasen v. Shaw, 133 S.W.3d 514, 519 (Mo. App. E.D. 2004). "A

'roadway' easement has been construed to afford a right of ingress and egress over a servient

tenement." Burg, 346 S.W.3d at 353 (quoting Beiser, 655 S.W.2d at 662). "An easement

created for egress and ingress gives a right of passage, and it allows the dominant owner

unlimited reasonable use for ingress and egress." Maasen, 133 S.W.3d at 519. "The rights

to store, park, plant, and construct on the non-roadway portions of the easement remain with

the servient owner[,]" but "the dominant owner may remove trees and earth that obstruct the

easement roadway." Id. at 520.

"In order for the easement to be exclusive, the language used to create it must refer

'to the exclusion of the servient tenement from participation in the rights granted to the

dominant owner.'" Grider, 325 S.W.3d at 448 (quoting Maasen, 133 S.W.3d at 518).

"[W]here an easement is non-exclusive, the owners of the servient tenement may use the

easement as long as that use does not substantially interfere with the dominant tenement's

reasonable use of the easement." Burg, 346 S.W.3d at 355.

"Whether the use of a non-exclusive easement by the owners of the servient

tenement substantially interferes with the dominant tenement's use of the easement is a

question of fact to be determined by the trial court." Id. "In general the lawfulness of a

fence or gate across a right-of-way is a question of fact." Teal v. Lee, 506 S.W.2d 492, 497

(Mo. App. St.L.D. 1974). "This court defers to the trial court's findings of fact, due to the

superior ability of the trial court to judge the credibility of the witnesses." Nolte v. Corley,

83 S.W.3d 28, 33 (Mo. App. W.D. 2002).

4
 "A claim that the judgment erroneously declares or applies the law . . . involves

review of the propriety of the trial court's construction and application of the law." Pearson

v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012). De novo review is applied "to questions of

law decided in court-tried cases." Id. We do not defer to the trial court's conclusions

regarding questions of law. Id. at 44.

Facts and Procedural Background

Plaintiffs' October 2009 petition sought a judgment declaring that they "have the

right to enter their property through the gate installed by Defendants, and Defendants have

no right to lock said gate . . . or to erect a fence of any kind at any location upon Plaintiffs'

property[.]" Plaintiffs also sought a permanent injunction enjoining Defendants "from

preventing Plaintiffs' access to Plaintiffs' real property through the gate installed by

Defendants with Plaintiffs' permission at the intersection of the purported easement and [the

farm road.]"

Defendants eventually filed counterclaims seeking a declaration that "Plaintiffs have

unreasonably interfered with [their use of the Easement,]" money damages, and an order

enjoining Plaintiffs from impeding Defendants' "ingress and egress across the [Easement] so

that their gate remains closed to unauthorized traffic[.]" A bench trial on the competing

claims was held in October 2012. We summarize the trial evidence in the light most

favorable to the Judgment. Grider v. Tingle, 325 S.W.3d 437, 440 (Mo. App. S.D. 2010).

In 1992, Mark and Rhonda Patterson, as husband and wife, acquired 72.9 acres of

Greene County land and built a house on it. In 1995, Mark commissioned a survey of a

five-acre portion of the property ("the five-acre tract") that included the house and described

5
a 35-foot easement to reach the five-acre tract. The easement was recorded in January 2005,

and it read:

PRIVATE ROAD EASEMENT DESCRIPTION: Commencing at the
Northwest corner of the Southwest Quarter of Section 11, Township 29
North, Range 20 West; thence South along the West line of said Southwest
Quarter a distance of 660.0 feet for a point of beginning; thence South a
distance of 35.0 feet; thence East and parallel with the North line of said
Southwest Quarter a distance of 1486.0 feet; thence North a distance of 35.0
feet; thence West a distance of 1486.0 feet to the point of beginning, being a
part of the Northwest Quarter of the Southwest Quarter and a part of the
Northeast Quarter of the Southwest Quarter, all in Section 11, Township 29
North, Range 20 West, in Greene County, Missouri, Except that part thereof
taken, deeded or used for County Road purposes.

In May 2007, Plaintiffs purchased all of the original property except the five-acre

tract (approximately 67.9 acres) from Mark and Rhonda at auction.2 The general warranty

deed they received provided that the land was "subject to any part thereof taken, deeded or

used for road or highway purposes." Mr. Murdaugh was aware of the Easement at the time

of the auction, and the auctioneer pointed it out "in the pre-auction discussion[.]" The

Easement was "just very roughly graded" at that time. After their purchase, Plaintiffs were

cleaning up the land and caused some "debris" to be piled on the Easement. Richard called

Plaintiffs and complained. Mr. Murdaugh agreed to move the debris, but Richard offered to

move it, and he did so.

Mr. Murdaugh acknowledged that Defendants used the gravel drive on the Easement.

Mr. Murdaugh's employee, Larry Fultz, testified that the gravel drive was "10 or 12 feet"

wide. After Defendants installed the gravel drive, they installed a gate at the end of the

gravel where it met the farm road. Mr. Murdaugh said that erecting the gate "would be fine"

as long as Plaintiffs were given access via a "buddy-lock system." A buddy-lock system

uses a lock at each end of a chain that is wrapped around a post to secure the gate with the
2
Mark and Rhonda divorced at some point, and Defendants subsequently acquired the property at issue.

6
two locks fastened together. Using that method, unlocking either lock will allow the gate to

be opened.

After the gate was secured with the buddy-lock system for a period of time,

Defendants secured the gate using a chain with only one lock, and Defendants never gave

Mr. Murdaugh a key to that lock. Mr. Murdaugh found the gate locked with a lock he could

not open on "[d]ozens" of occasions. Mr. Fultz also testified that there were times after the

gate was installed that he could not get through it because it was locked with one lock and

not a buddy-lock. Mark admitted that there were occasions on which he had "locked [the]

gate with a lock that [Plaintiffs didn't] have a key to[.]"

As a result, Plaintiffs could not get their "hay equipment in and out" at that location,

so they cut a new access path onto their property north of the Easement, and that path

traveled toward and eventually intersected the Easement. After that took place, Plaintiffs

"encountered fairly consistently either rows of rocks or piles of gravel" which were placed

on the Easement to either side of the gravel drive. Plaintiffs had to use equipment to

"smooth it out" so that they could get all of their equipment through the intersection of the

new path and the Easement.

On some occasions, Mr. Fultz was able to enter through the gate because it was

unlocked. On some of those occasions, he then saw Mark lock the gate, forcing Mr. Fultz to

exit the property across Plaintiffs' other acreage. According to Mr. Fultz, this happened

"many times."

A chain was also stretched from the northern gate post at the western end of the

Easement to another post further north. Mr. Murdaugh did not give Defendants permission

to put the chain up, and he was not given a key to the lock that secured it. The chain

7
prevented Mr. Murdaugh from accessing his property using the area immediately north of

the gate. Mr. Fultz testified that the chain was "always up[.]" Mark admitted putting the

chain up sometime after he installed the gate.

Mr. Murdaugh next observed that some fence posts had been put alongside the

Easement "[i]n order to do fencing." One fence post was installed. Mr. Murdaugh told

Defendants that they could not put up a fence, but Defendants disagreed. Plaintiffs had their

attorney send Defendants a letter, and no fence had been installed at the time of trial.

Mr. Murdaugh testified that he had plowed his field "up very close to where the

gravel is" on the Easement, and he had planted hay on the un-graveled portion of the

Easement. "[A]s soon as it sprouted, [it] was torn up with a tractor and blade [by someone].

Even out into [Plaintiffs'] field."

The trial court took the matter under advisement at the conclusion of the evidence,

and both parties filed proposed findings of fact. The Judgment, entitled "AMENDED

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT[,]" was entered

on November 8, 2012.3 The Judgment included Findings of Fact stating that "[i]t is unclear,

and now irrelevant, if the installation of the gate was initially undertaken with the

permission of Plaintiffs." Nonetheless, the trial court further found that Defendants had

installed the gate, and they had "periodically locked the gate . . . at times with a lock

Plaintiffs cannot relieve." The Findings of Fact also included that "Plaintiffs and Defendants

have each alleged the other has frustrated the other[']s access across the [Easement]. . . .

Neither side has clean hands with regard to some or all of this conduct."

3
A docket entry states that a judgment entered on November 6, 2012 was entered "due to scrivener's error[.]"
A copy of the November 6th judgment is not included in the legal file.

8
 The Judgment granted Plaintiffs' claims "for declaratory and injunctive relief" and

denied Defendants' counterclaims. The Judgment also stated:

[T]he Court declares that Plaintiffs are the fee owners of the property
described in the [Easement] subject only to Defendants' right to the
reasonable use of the easement property solely for ingress and egress to their
[five-acre tract]. The Court therefore permanently enjoins Defendants, or
anyone taking by or through them, from making any use of the [Easement]
that is inconsistent with Plaintiffs' use and enjoyment of their property and
the Conclusions of Law described herein.

The incorporated "Conclusions of Law" included the following matters relevant to

the instant appeal:

2. As owners of the land burdened by the [Easement], Plaintiffs have the
right of full dominion of that land and the right to use that land in any
legal way they choose that does not substantially interfere with the
reasonable use of the [Easement] by Defendants, as holders of the
[Easement]. Defendants' use of [the E]asement is limited, and may be
used solely as a means of ingress and egress to their [five-acre tract].

3. Plaintiffs have and maintain all rights over the [Easement], not
inconsistent with Defendants' right of access to [the five-acre tract].
Plaintiffs' rights include, but are not limited to, the right to cultivate
hay within that part of the [Easement] not improved by the gravel
drive surface located therein, and the right to have, or refuse to have,
a gate located on the [E]asement.

....

5. The [Easement] is "exclusive" to the extent Defendants cannot
make any use of the property other than as and for access to the
[five-acre tract]. The "exclusive" use Defendants may make of the
[Easement] is for their ingress and egress. The "exclusive" nature of
the [E]asement does not place any limitation on Plaintiffs' use of their
property, except that they may not unreasonably interfere with
Defendants' right to use the [Easement] for access to their [five-acre
tract.]

6. . . . . Defendants have no right to have a gate on the [E]asement,
except by permission of Plaintiffs. If a gate is permitted, locking of
the gate by any of Defendants may only be with permission of
Plaintiffs. If the gate is locked with permission, then either a key
must be provided to Plaintiffs, or a buddy lock properly used.

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 Plaintiffs may not be denied access to their property, either the
portion described by [the E]asement, or the remaining portion
accessed over the [E]asement.

7. If a gate is permitted on the [Easement], then neither Plaintiffs nor
Defendants may cause the other to be locked out of the [Easement].
There must necessarily be cooperation in providing access keys if one
lock is used, or a proper buddy lock system which both parties are
familiar with.

....

10. The gravel drive constructed by Defendants within the [Easement] is
approximately twelve to fifteen feet wide presently, which the
evidence suggests, and the Court finds, is currently of sufficient width
to serve the purpose of the [Easement] as a means of ingress and
egress to the [five-acre tract]. The [E]asement itself is thirty-five feet
in width (north/south dimension) and if Defendants need to improve
an additional portion of the [E]asement for their reasonable ingress
and egress, then they may have the right to do so. However, Plaintiffs
have the right to use their property, including the [E]asement, as they
may choose, including planting hay on the [E]asement, so long as that
use does not interfere with Defendants' ingress and egress.
Defendants have no right to interfere with Plaintiffs' right of use,
including destroying Plaintiffs' cultivation of hay.

(Emphasis added.) Defendants filed a motion to amend the judgment on December 4, 2012.

The motion was deemed overruled by the passage of time under Rule 78.064 on March 4,

2013, and this appeal timely followed.

Analysis

Point III – The gate dispute

We first take up Defendants' third point, which contends the trial court erred in

"enjoining [Defendants] from 'making any use of the [Easement] that is inconsistent with' its

Conclusions of Law that [Plaintiffs] have 'the right to have, or refuse to have, a gate located

on the easement,' because the [trial] court" did not use "the proper four-part test to determine

whether [Plaintiffs] would have the right to install a gate[.]"
4
The rule reference is to Missouri Court Rules (2013).

10
 "We are required to determine whether there is a justiciable controversy before

addressing the merits of the action." Rideout v. Koster, ____ S.W.3d ____, No. SD32736,

2014 WL 2210528 at *1 (Mo. App. S.D. May 28, 2014). Thus, we may consider whether a

justiciable controversy exists even though neither party has raised the issue. See Mo.

Retired Teachers Found. v. Estes, 323 S.W.3d 100, 103 n.8 (Mo. App. W.D. 2010)

(addressing the matter even though the parties had not raised ripeness as an issue).

"A court cannot render a declaratory judgment unless the petition presents a

controversy ripe for judicial determination." Mo. Soybean Ass'n, 102 S.W.3d at 26.

Concerning the gate, Plaintiffs' petition sought a declaration that they had "the right to enter

their property through the gate installed by Defendants, and Defendants have no right to lock

said gate or otherwise deny Plaintiffs access to their property at that point[.]" They also

sought a permanent injunction "restraining and enjoining Defendants . . . from preventing

Plaintiffs' access to Plaintiffs' real property through the gate installed by Defendants with

Plaintiffs' permission[.]"

Here, while the Easement has no provisions regarding a gate, Defendants had

installed a gate and Plaintiffs simply requested in their petition that they have access through

the gate which was installed "with Plaintiffs' permission[.]" There was evidence to support

the finding that Defendants had interfered with that access when Mark locked the gate

without providing Plaintiffs a way to get through the gate. This "present[ed] a real,

substantial, presently-existing controversy admitting of specific relief[.]" Mo. Soybean

Ass'n, 102 S.W.3d at 25. Further, Plaintiffs, as holders of the servient estate, had a "legally

protectable interest at stake[.]" Id. The issue of Plaintiffs' access through the gate is ripe --

a presently existing controversy began when Mark locked the gate in a way that prevented

11
Plaintiffs from going through it. See Schweich, 408 S.W.3d at 774. And Plaintiffs had no

adequate remedy at law to address the continuing nature of this limitation of their use of the

gate. Thus, there was a judicial controversy ripe for the trial court's resolution via a judicial

declaration that Defendants could not lock the gate so as to limit Plaintiffs access to their

property at that location.

The trial court was correct in ruling that neither side "may cause the other to be

locked out of the [Easement]." The Easement does not indicate that those holding the

servient estate are excluded from this use. Therefore, the Easement is not an exclusive

easement. See Grider, 325 S.W.3d at 448. As the owners of the servient tenement,

Plaintiffs may "use the easement as long as that use does not substantially interfere with the

dominant tenement's reasonable use of the easement." Burg, 346 S.W.3d at 355. Likewise,

Defendants, as the owners of the dominant tenement, have "unlimited reasonable use for

ingress and egress." Maasen, 133 S.W.3d at 519.

In contrast, the trial court's declarations that the Plaintiffs have "the right to . . .

refuse to have . . . a gate located on the [Easement]" and that "Defendants have no right to

have a gate on the [E]asement, except by permission of Plaintiffs[,]" though undoubtedly

well-intentioned, do not address a presently existing controversy. Mo. Soybean Ass'n, 102

S.W.3d at 25. Plaintiffs did not challenge the existence of the gate, averring in their petition

that the gate had been "installed by Defendants with Plaintiffs' permission."

For this reason, we grant Defendants' point to the extent that it challenges the trial

court's declarations concerning the gate that were not ripe for decision.

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 Points I and II – Scope of permanent injunction

Point I challenges two intertwined portions of the Judgment: 1) the Conclusion of

Law that "if Defendants need to improve an additional portion of the [E]asement for their

reasonable ingress and egress, then they may have the right to do so" (emphasis added); and

2) the language in the Judgment that "permanently enjoin[ed] Defendants, or anyone taking

by or through them, from making any use of the [Easement] that is inconsistent with

Plaintiffs' use and enjoyment of their property and the Conclusions of Law described

herein."

Defendants claim that the Easement is not so limited, and their "deeded right to use

the [E]asement for ingress and egress to their property is paramount to any inconsistent use

that [Plaintiffs] might make of it." Point II similarly challenges the language in the

Judgment "permanently enjoin[ing] Defendants . . . from making any use of the [Easement]

that is inconsistent with Plaintiffs' use and enjoyment of their property and the Conclusions

of Law described [therein]." It also specifically challenges additional conclusions of law

regarding the cultivation of hay on the Easement. Because the resolution of these points

involves the same language in the Judgment, we address them together.

Defendants argue on appeal that they "have the absolute right to expand their use for

ingress and egress to their property. The trial court took away that right by incorporating its

hedging Conclusions of Law into the injunction." According to Defendants, the trial court's

"ruling means that [their] right to expand their use beyond the existing improved area of the

[E]asement is only a possibility and is never assured" and "[u]nder the trial court's view, the

servient estate controls the dominant estate--not, as it should be, the other way around." We

believe Defendants' assertion that the dominant estate controls the servient estate overstates

13
the matter, but, once again, the Judgment -- perhaps in an attempt to stave off future

conflicts -- goes too far in making declarations on matters not yet ripe for judicial

determination.

The judgment found (as a matter of fact) that the existing gravel driveway is

sufficient to meet Defendants' current needs for ingress and egress, and Defendants have not

challenged that finding. That portion of the Judgment addressed an existing condition.

In contrast, Defendants' future ability to expand the existing roadway to reasonably

meet some future need is not a "presently existing" controversy. Schweich, 408 S.W.3d at

774. A portion of Paragraph 3 of the Conclusions of Law addresses existing conditions by

providing that Plaintiffs have "the right to cultivate hay within that part of [the Easement]

not improved by the gravel drive surface located therein[.]" (Emphasis added.) A portion

of Conclusions of Law paragraph 10, however, states:

The [E]asement itself is thirty-five feet in width (north/south dimension) and
if Defendants need to improve an additional portion of the easement for their
reasonable ingress and egress, then they may have the right to do so.
However, Plaintiffs have the right to use their property, including the
[E]asement, as they may choose, including planting hay on the [E]asement,
so long as that use does not interfere with Defendants' ingress and egress.
Defendants have no right to interfere with Plaintiffs' right of use, including
destroying Plaintiffs' cultivation of hay.

(Emphasis added.) By incorporating all of the trial court's Conclusions of Law, the

Judgment purports to prevent Defendants from ever expanding the size of the existing

roadway as long as Plaintiffs have hay planted up to its edge. Whether Defendants may

expand the width of the existing roadway in the future does not involve a presently-existing

dispute. As a result, language indicating that Defendants are permanently enjoined from

destroying Plaintiffs' cultivation of hay within the Easement is beyond the scope of the trial

14
court's authority as it attempts to resolve a potential future controversy not yet ripe for

judicial determination.

To the extent that points II and III challenge those portions of the Judgment's

incorporated Conclusions of Law in paragraphs 3 and 10 that attempt to address

controversies not presently at issue, they are granted. All other portions of the Judgment not

specifically reversed herein are affirmed. The matter is remanded to the trial court, which is

directed to enter a new judgment consistent with this opinion. If the relief awarded in that

judgment again incorporates the trial court's existing Conclusions of Law, paragraphs 3 and

10 should contain no more than the first sentence of each.

DON E. BURRELL, J. - OPINION AUTHOR

GARY W. LYNCH, J. - CONCURS

MARY W. SHEFFIELD, J. - CONCURS

15