KLINGERT v. LEE (2026)

Introduction

Louis Klingert (Klingert) appeals the judgment of the trial court in favor of Fred and Nancy Lee (collectively, Lees) following a bench trial on Klingert's petition for a prescriptive easement, which the trial court denied because Klingert testified he believed the passage at issue was a public right of way. While such a belief can undermine a claimant's ability to show the element of adverse use for a prescriptive easement, the character of the claimant's use as compared to the rest of the general public is central to the determination of adverse use. Because Klingert also provided evidence that his use was unique compared to the rest of the public, we reverse and remand.

Factual and Procedural Background

Klingert is a contracted distributor for GE Appliances, and he owns an appliance store located on Front Street in downtown New Haven, Missouri. The front of Klingert's store faces south. At the back entrance to Klingert's store, along the north side of the building, there is an alley that runs east-west. It begins at Olive Street just west of Klingert's store, runs east from Olive street, then turns south past Klingert's store and ends at Front Street just east of Klingert's store. The Lees own two adjacent parcels of property directly north and across the alley from Klingert's store. The northern edge of the Lees’ properties abut Main Street, which runs east-west, parallel to Olive Street and the alley in between. Between the Lees’ two buildings is a north-south running passage or breezeway that connects Main Street to the alley, and runs directly from Main street to the back entrance of Klingert's store, where Klingert has a loading dock. This passage or breezeway is the subject of the present appeal, for which Klingert sought a prescriptive easement below, and we refer to it hereafter as the “disputed passage.”

Klingert testified that he has operated his appliance business since 2000, and he regularly used the disputed passage to receive appliance deliveries. The Lees purchased their property in 2016. Sometime in 2021, they installed a rope along the north side of the alley, blocking access to the disputed passage. Klingert removed the rope and continued using the disputed passage as needed. Sometime in 2023, the Lees installed boulders on the southern end of the disputed passage, where it meets the north side of the alley, to block traffic through the disputed passage. Fred Lee testified that construction workers were present performing renovations at his property, and because cars frequently drove through the disputed passage, the Lees blocked access to protect the construction workers’ safety. During this same time period of 2021 through 2023, the City of New Haven (City) made several road and sidewalk improvements in the downtown area. One of these projects was to replace the sidewalk along the south side of Main Street, including where the north end of the disputed passage meets Main Street. The resulting sidewalk included an elevated curb, eliminating vehicle access to the disputed passage from Main Street.

Klingert filed the present action against the Lees and the City, requesting that the trial court find a prescriptive easement in Klingert's favor and restore his access to the disputed passage and to Main Street through the disputed passage. Klingert settled his claims with the City, and he introduced evidence at trial that the City had agreed to abide by any court order regarding the disputed passage. Trial therefore proceeded solely on Klingert's claim of a prescriptive easement over the disputed passage against the Lees.

The trial court heard mixed evidence regarding the frequency of deliveries Klingert received utilizing the disputed passage, as well as evidence that Klingert also moved appliances through the front doors of his store. Klingert testified that, since the disputed passage has been blocked, he can no longer receive GE deliveries and now must instead pick up his inventory. He testified that the only way an 18-wheeler delivery truck could reach his loading dock is by backing in from Main Street over the disputed passage. The east-west alley behind the store is not wide enough for a large truck to turn to face north-south at the loading dock to unload. Klingert acknowledged that he can move some items through the front door of his store, but GE requires a loading dock for deliveries.

Klingert testified that during his more than twenty years of using the disputed passage, he never asked permission to drive over the disputed passage because he believed it was “public access” and that many other people also used the disputed passage. A former City police officer testified that the police regularly used the disputed passage on patrol to check the alley, and that there was “a lot of traffic there” due to some businesses that people entered through the back door. A former business owner of a farm supply business in the same area of town testified he used the disputed passage regularly between 1970 and 2000 for his transport trucks.

The trial court entered judgment in favor of the Lees, finding that Klingert failed to present sufficient evidence to establish a prescriptive easement because his belief that the disputed passage was a public passage defeated Klingert's claim of an individualized right to a prescriptive easement. This appeal follows.

Standard of Review

We review this court-tried case using the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). See Hodgkinson v. Hatten, 687 S.W.3d 201, 205 (Mo. App. S.D. 2024). We will affirm the trial court's judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We defer to the trial court's credibility and factual determinations, but we review questions of law de novo. Id.

Discussion

Klingert raises three points on appeal. He argues in Point One that the trial court wrongly required Klingert to establish his use of the disputed passage was exclusive, and in Point Two that he properly established he had a particular use distinct from the general public. As both of these points relate to the only disputed element here—adverse use—we discuss them together. In Point Three, Klingert argues alternatively that the evidence established a prescriptive easement in favor of the public over the disputed passage.

Points One and Two – The Trial Court Misapplied the Law Regarding Adverse Use

Klingert argues the trial court erroneously declared and applied the law in that it required him to show his use of the disputed passage was exclusive, and in that there was evidence his use was distinct from that of the general public, allowing a finding of adverse use. We agree.

To succeed on a claim for a prescriptive easement, a claimant must show use that is (1) continuous; (2) uninterrupted; (3) visible; and (4) adverse for (5) a period of 10 years. Orla Holman Cemetery, Inc. v. Robert W. Plaster Trust, 304 S.W.3d 112, 119 (Mo. banc 2010). “[F]or the use to be adverse, it is not necessary that the user intend to violate the owner's rights[.]” Maune v. Beste, 356 S.W.3d 225, 228 (Mo. App. E.D. 2011) (citing Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 508 (Mo. banc 1993)). “All that is required for the use to be adverse is non-recognition of the owner's authority to permit or prohibit the continued use of the land.” Whittom, 851 S.W.2d at 508. Additionally, “[t]he adverse use need not be exclusive[,]” in the sense that no one else uses the land. Id.; Maune, 356 S.W.3d at 228. “The claimant of an easement claims only the right to make certain use of the land and does not claim to possess the whole title and exclude the owner from it for all purposes.” Whittom, 851 S.W.2d at 508. Courts generally presume that a use is adverse from the fact that use of another's land has occurred. Id.

However, a claim requesting a private easement asserts an individual right, thus while a claimant's use need not exclude others’ use of the land, it must be distinct from that of the general public, and therefore an “exclusive” type of use in that sense. See Shapiro Bros., Inc. v. Jones-Festus Props., LLC, 205 S.W.3d 270, 279 (Mo. App. E.D. 2006). If a claimant seeks an easement over a roadway based on use that is no different than the general public's use of the roadway along with a belief that the roadway is public, such use defeats any claim of an individual right. Rosemann v. Adams, 398 S.W.2d 855, 858 (Mo. 1966).

Here, Klingert offered evidence to show that he utilized the disputed passage for his business, specifically for receiving deliveries to his loading dock at the back of his store. Klingert also testified that other businesses used the disputed passage as well as the general public, as a short cut going around the block. Additionally, Klingert testified that he hosted concerts on his loading dock in the summer, and that the disputed passage had been used for a community festival in the past. When asked whether he ever sought permission from the Lees to use the disputed passage, Klingert responded, “No. I didn't even know I needed permission. I thought it was public access.” When asked who else used the disputed passage, Klingert stated that the prior owner of Klingert's building also used it for his business. The trial court later sought to clarify, asking Klingert, “Is it your understanding that the alleyway is a public right-of-way?” Klingert responded, “Yes.” The court asked whether it was still used currently by the general public, and Klingert answered, “Yes.”

Based on Klingert's testimony that he believed the disputed passage was a public right-of-way, the trial court denied Klingert's request for a private easement, quoting this Court's opinion in Shapiro Brothers, Inc. v. Jones-Festus Properties, LLC: “No claim of individual right of easement by prescription may arise under circumstances where one claims a private traffic way as well as a belief that the disputed area is a public way.” 205 S.W.3d at 279 (citing Custom Muffler & Shocks, Inc. v. Gordon Partnership, 3 S.W.3d 811, 814-15 (Mo. App. W.D. 1999) (citing Rosemann, 398 S.W.2d at 858)). While this language seems to suggest that the actual use of the roadway is irrelevant when the user holds a belief that the roadway is a public way, such a conclusion takes this statement out of context. The line of cases that hold a belief that a roadway is public defeats a claim for a private easement stems from the Supreme Court of Missouri's opinion in Rosemann v. Adams, 398 S.W.2d 855 (Mo. 1966).

In Rosemann, the plaintiffs sought to enjoin the use of their property, which was a driveway that the defendants had used to access the defendants’ property, and that the general public had used as well. 398 S.W.2d at 856. The Village of Bel-Ridge intervened in the case, arguing that the road had been used as a public road for more than 10 years. Id. The individual defendants sought a private easement due to their use of the roadway to access their property, or alternatively, a declaration that the road was a public road. Id. The trial court had granted an easement both for the individual defendants and the general public. Id.

The Supreme Court of Missouri noted evidence that during the entire prescriptive period, the area in question had been paved, maintained by the Village, and “generally used and considered as part of Werder Avenue,” which it abutted. Id. at 858. The Supreme Court of Missouri then reversed the easement in favor of the individual defendants, noting one defendant's testimony was that he believed the area “was a street belonging to the Village.” The Supreme Court of Missouri therefore concluded that his use “was neither exclusive nor under individual claim of right. No claim of individual right of easement by prescription may arise by virtue of such use by the defendants.” Id. The court noted no evidence of any use by the individual defendants that was distinct from the rest of the general public. Notably, the Supreme Court of Missouri ultimately granted a prescriptive easement in favor of the Village for public use.¹ Id.

In cases following Rosemann, while there are similar statements that a claimant's belief a particular roadway is public defeats a claim for a private prescriptive easement, the evidence in these cases shows the claimants utilized the road in the same manner as the general public. See Shapiro Bros., 205 S.W.3d at 280 (denying claim for private prescriptive easement, noting claimant's testimony that claimant's use “was the same as the general public—as a cut-through”); Custom Muffler & Shocks, 3 S.W.3d at 814-15 (noting one use as cut-through by one claimant and general public was not enough to establish either private or public easement, but finding private prescriptive easement in favor of other claimant who used land for access to business and other business-related purpose). The Rosemann Court did not intend that a claimant's belief that a road is public would defeat a prescriptive easement claim where there is also a separate or different individualized use of the road, because there is an extensive and long line of cases holding that where a person uses another's land under an individual claim of right, such use is presumptively adverse. See, e.g., Whittom, 851 S.W.2d at 508; Shapiro Bros., 205 S.W.3d at 279. Rather, Rosemann’s holding tied the claimant's belief about the public nature of the road to the use the claimant made of the road, which was the same as the public's. Specifically, the Supreme Court of Missouri found the claimant's use “was neither exclusive nor under individual claim of right. No claim of individual right of easement by prescription may arise by virtue of such use by the defendants.” 398 S.W.2d at 858 (emphasis added).

Therefore, while it is clear that a claimant's use is not adverse where the claimant believes the road is public and exercises use that is the same as the general public; these cases allow a prescriptive easement even where a claimant may have a mistaken belief that a road is public but makes an individualized use of the road without regard to who owns the road or to whether such individualized use would be permitted of a public road. Cf. Johnston v. Bates, 778 S.W.2d 357 (Mo. App. E.D. 1989) (affirming finding of prescriptive easement where owner believed easement existed but also believed road was public; did not mention Rosemann). The latter is the factual situation present here.

While the trial court focused on Klingert's belief that the disputed passage was open to the public, the court made no finding regarding Klingert's use: whether it was the same as the general public or unique and stemming from an individual claim of right. There was ample evidence before the trial court that Klingert's use since 2000 was distinct from the general public, including for receiving deliveries, for parking, and for holding community events. Klingert noted that the disputed passage was the only way for him to receive deliveries from large trucks, and there was no evidence anyone else used the disputed passage for that purpose during that time. The trial court did not consider this evidence as it relates to adverse use, due to the court's focus on Klingert's belief about the public status of the road. In doing so, the trial court misapplied the law, and we must therefore reverse the judgment denying Klingert's claim for a prescriptive easement. Points granted.

Point Three – Klingert Did Not Properly Request a Public Prescriptive Easement

Klingert argues alternatively in Point Three essentially that he established an entitlement to a prescriptive easement in favor of the City in light of the evidence of the regular use of the disputed passage by members of the general public. He argues that his original petition did not specify whether his request was for a “public” or “private” easement and that the trial could have found either. We disagree.

Klingert's petition alleged that he “is the owner of an easement” over the disputed passage, and he sought a “declaration that [Klingert] is the exclusive owner of the easement, and that no defendant has any interest in the easement adverse to [Klingert.]” It is clear this language sought a private prescriptive easement on behalf of Klingert. At trial, Klingert introduced evidence that the general public also used the disputed passage, to which the Lees did not object. After the trial court's judgment, Klingert filed a motion to amend his pleadings to conform to the evidence presented at trial. However, rather than asking to add a claim asserting a public entitlement to a prescriptive easement, he simply asked the court to remove any reference to the word “exclusive” and argued he was not alleging a “private” easement. His attached proposed amended complaint still sought a declaration that Klingert was the owner of an easement. The trial court denied Klingert's motion. Klingert does not argue here that the trial court's denial was an abuse of discretion. He simply rests on the fact that his original petition did not directly request either a “public” or “private” easement and thus the trial court could have found either.

It is clear from the record that the only claim before the trial court was a claim for a private easement in favor of Klingert. Despite evidence that the public used the disputed passage, Klingert failed to adequately raise an alternative claim for a public easement. We cannot review a claim that was neither raised in the trial court nor disposed of by the trial court. Miken Techs., Inc. v. Traffic Law Headquarters, P.C., 494 S.W.3d 609, 612 (Mo. App. E.D. 2016) (“It is hornbook law that a party cannot recover for a cause of action not pleaded”). Point denied.

Conclusion

Because the trial court did not consider evidence of Klingert's individualized use of the disputed passage since 2000 in its determination of whether such use was adverse, we reverse the trial court's judgment denying Klingert's request for a prescriptive easement. Additionally, because the trial court did not make findings regarding the other elements of a prescriptive easement, we must remand to the trial court for it to enter an appropriate judgment in light of our holding here and in light of the evidence, or to take additional evidence as it deems necessary in order to make such determination.

FOOTNOTES

1.   The trial court had granted an easement in favor of the general public, but the Supreme Court of Missouri found “the general public, considered apart from legally organized or political entities, is incapable of receiving a grant and hence cannot acquire a prescriptive easement.” 398 S.W.2d at 858. Thus, the court amended the judgment to grant the easement in favor of the Village of Bel-Ridge. Id. at 858-59.

Gary M. Gaertner, Jr., Judge

Rebeca Navarro-McKelvey, Presiding Judge, and James M. Dowd, Judge, concur.