BOWEN v. ROEDER (2026)

Dylan Roeder (“Landowner”) appeals the trial court's judgment awarding ownership of a private road running through Landowner's land to Clint Bowen and Morgan Bowen (“Homeowners”). In three points, Landowner argues (1) the trial court erred in granting ownership of the road to Homeowners rather than an easement, (2) the trial court erred in that the terms of the interlocutory judgment were not included in the final judgment, or alternatively (3) the trial court erred in not sending the case back to the commissioners to reassess damages considering the nature of the award to Homeowners. Finding the first point dispositive, we reverse and remand.

Factual and Procedural Background

In 2023, Homeowners purchased a tract of landlocked real estate in St. Clair County with the intention of building a family home on the property. Landowner owns the tract of land directly south of Homeowners’ land. Landowner has a road on his property (“Landowner's Road”) which runs from the southeast corner of Homeowners’ property, through Landowner's land and to a public road. Homeowners filed a petition for the establishment of a private road pursuant to § 228.340 – § 228.358 ¹ against Landowner.

A bench trial was held on August 21, 2024. On September 16, 2024, the trial court entered Findings of Fact, Conclusions of Law and Interlocutory Order (“Initial Interlocutory Order”), which found there was “no dispute that [Homeowners] own the [Homeowners’] Property and that no public road runs through or directly alongside the [Homeowners’] Property, and [Landowner] stipulated to these facts at trial.” Finding strict necessity, the trial court granted a 40-foot-wide private road (“the Private Road”) over part of Landowner's Road, which was legally described as:

THE EAST FOUR HUNDRED TWENTY-EIGHT AND TWENTY-FOUR HUNDREDTHS (428.24) FEET OF THE NORTH FORTY (40) FEET OF THE SOUTH TWENTY-THREE (23) ACRES OF THE EAST HALF OF LOT ONE (1) OF THE NORTHEAST QUARTER, SECTION FIVE (5), TOWNSHIP THIRTY-SEVEN (37) NORTH, RANGE TWENTY-FIVE (25) WEST OF THE 5TH PRINCIPAL MERDIAN, [sic] ST. CLAIR COUNTY, MISSOURI. CONTAINING 0.39 ACRE OR 17,130 SQUARE FEET OF LAND, MORE OR LESS. SUBJECT TO ANY AND ALL EASEMENTS, RESERVATIONS AND RESTRICTIONS OR RECORD.

The Initial Interlocutory Order appointed commissioners to determine damages and ordered that both parties share equally in the construction and repair of the Private Road unless Landowner waived his rights to use the Private Road. Germaine to this appeal, the trial court held the private road statutes did not authorize an easement, but “vest[ed] title in the taken property in the [Homeowners].”

Landowner filed a motion to amend the Initial Interlocutory Order, arguing that Homeowners were entitled to an easement, not an ownership or fee interest in the Private Road. On October 25, 2024, the trial court issued Amended Findings of Fact, Conclusions of Law and Interlocutory Judgment (“Amended Interlocutory Judgment”). The Amended Interlocutory Judgment again found strict necessity that Homeowners needed access to their property over the Private Road; however, the trial court now found as follows:

32. At trial, [Landowner] argued that if [Homeowners] satisfied the statutory requirements for establishment of a private road, then they would be entitled to receive an easement over the appropriate portion of [Landowner's] Road Property, but that [Landowner] would not be divested of ownership thereof. Upon reflection and further research, the [c]ourt agrees with [Landowner]. The language of 228.352 RSMo. provides a limitation to the taking. The language specifically states that “the [c]ourt shall determine the location of the road so as to do as little damage or injury and cause as [little] inconvenience as practicable to the defendant.” Had the legislature intended that property be transferred in fee, then it would have expressly stated so in the statute.

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34. An easement accomplishes the intent of 22[8].352 RSMo. in providing access to the [Homeowners’] property. The [Homeowners] having the dominate estate are entitled to use, but not the right to possess, take from, improve, or sell the land.

Accordingly, the trial court held that “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that [Homeowners] shall have the nonexclusive right to use [Landowner's] Private Road for ingress and egress.” The Amended Interlocutory Judgment remained the same in all other relevant aspects as the Initial Interlocutory Order.²

The commissioners inspected the real estate and assessed “the damage in total for the easement and pipe rail fence and gate at $3750.00.”³ On March 10, 2025, the trial court issued “Findings of Fact, Conclusions of Law and Final Judgment” (“Final Judgment”). The Final Judgment returned to the trial court's original conclusion in the Initial Interlocutory Order that Homeowners were entitled to fee ownership of the Private Road, with Landowner retaining rights of use. Specifically, the Final Judgment held that:

33. At trial, [Landowner] argued that if [Homeowners] satisfied the statutory requirements for establishment of a private road, then they would be entitled to receive an easement over the appropriate portion of [Landowner's] Road Property, but that [Landowner] would not be divested of ownership thereof. [Landowner] misunderstands the statutory scheme embodied in Sections 228.341 RSMo. et seq.

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35. The private road statute is a form of private eminent domain, expressly permitted by Missouri's Constitution. Article 1, § 28,·of Missouri's Constitution provides that “private property shall not be taken for private use with or without compensation ․ except for private ways of necessity․” (emphasis added). The Supreme Court expressly held that “section 228.342 implements the specific exception to the general constitutional ban on the taking of property for private use found in article 1, section 28 of the Missouri Constitution․” Avery Contracting, LLC v. Niehaus, 492 S.W.3d 159, 163 (Mo. banc 2016). An easement, which·is a non-possessory interest, is by definition not a taking and therefore does not violate the Article 1, Section 28 of the Missouri Constitution.

36. Missouri's private road statute authorizes a private landowner to take land belonging to another if necessary to provide legally enforceable access to real property. Because it is a taking, the statutory scheme requires that the plaintiff compensate the defendant for the value of the land taken. See Section 228.355 RSMo. Generally, a landowner who obtains an easement by prescription, necessity or implication does not have to pay the other landowner damages, because the easement holder does not obtain a possessory interest in the other landowner's property.

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38. The Court had previously found in it's [sic] Amended Findings of Fact, Conclusions of Law and Interlocutory Judgment that, [Homeowners] were awarded the property described therein as their private road. There was error in that judgment granting a nonexclusive right of use. The [c]ourt is persuaded by the argument of the [Homeowners] that the statutory relief requested does in fact grant a taking as stated herein.

Landowner thereafter filed a motion to amend the judgment or for rehearing. Landowner's motion argued: (1) the trial court erred in granting ownership of the Private Road to Homeowners rather than an easement, or (2) if ownership was properly awarded to Homeowners, the damages assessed to Landowner should be reassessed to reflect the same, rather than an easement which was contemplated by the commissioners. The trial court denied the motion. This appeal follows.

Standard of Review

We will affirm the trial court's judgment in a court-tried case unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Ivie v. Smith, 439 S.W.3d 189, 198-99 (Mo. banc 2014); see also Rule 73.01. We apply de novo review to questions of law. Forbes, 646 S.W.3d at 738.

Discussion

Landowner's point 1 argues the trial court erred in transferring ownership of the Private Road to Homeowners, rather than granting an easement, because § 228.358 requires the Private Road to be a permanent easement rather than a transfer of fee simple ownership. Landowner does not dispute whether a private road should be established, nor any factual findings of the trial court. Because point 1 is dispositive of this appeal, we need not address Landowner's other points.

Chapter 228 provides for the establishment of private roads in Missouri.⁴ A “private road” means “any private road established under this chapter or any easement of access, regardless of how created, which provides a means of ingress and egress by motor vehicle for any owner or owners of residences from such homes to a public road.” § 228.341. To obtain a private road, a plaintiff must “show that he owns the land, that there exist no public roads through or alongside the land and that the private road petitioned for is mandated by strict necessity.” Short, 372 S.W.3d at 530 (quoting Blue Pool Farms, LLC v. Basler, 239 S.W.3d 687, 690 (Mo. App. E.D. 2007)); see also § 228.342. Landowner does not contest that Homeowners met this burden.

A private road shall be “situated so as to do as little damage or injury and cause as little inconvenience as practicable to the owner or owners of the real property over which the private road shall pass.” § 228.345; see also § 228.352. When a court finds that a plaintiff has met their burden of no access and strict necessity:

The court shall then enter an interlocutory order for the establishment or widening of the private road at the location determined by the court. As part of such interlocutory order, the court shall also designate which party or parties shall be responsible for the construction, maintenance and repair of the private road and shall set out the nature and scope of the parties’ rights to the use and the enjoyment of the private road. However, the court shall not order the defendants to share responsibility for the construction, maintenance or repair of the private road if, under the court order, the defendants are not granted any rights to the use and enjoyment of the private road, or if any such rights are granted and the defendants waive such rights.

§ 228.352. Three appointed commissioners shall assess damages sustained by a defendant. § 228.355. Section 228.358 provides that:

Within ten days after notification of the commissioners’ report, either party may file exceptions to the report and assessment of damages. If no exceptions are filed, the court shall enter a judgment establishing or widening the private road and assessing the damages as set forth in the commissioners’ report to be paid by the plaintiffs to the defendants. If either party files exceptions, the court shall impanel a jury and conduct a trial to determine the amount of damages to be paid by the plaintiffs to the defendants. Thereafter, the court shall enter a judgment establishing or widening the private road and assessing the damages as set forth in the jury's verdict, and the provisions of the interlocutory order as provided in section 228.352 shall be included in such judgment. The private road so established or widened shall be a permanent easement appurtenant to the plaintiffs’ real property.

§ 228.358 (emphasis added).

Our analysis is whether the trial court committed an error of law in transferring a fee simple ownership interest to Homeowners, with rights of use retained by Landowner. We note that “proceedings to acquire a private way over the lands of another are against the common law and the common rights and must, therefore, be strictly construed.” Avery Contracting, LLC v. Niehaus, 492 S.W.3d 159, 163 (Mo. banc 2016) (quoting Anderson v. Mantel, 49 S.W.3d 760, 765 (Mo. App. S.D. 2001)). “A strict construction of a statute presumes nothing that is not expressed.” Treasurer of State v. Penney, 710 S.W.3d 498, 500-01 (Mo. banc 2025); Avery, 492 S.W.3d at 163.

Statutory interpretation is a question of law that is reviewed de novo. The primary rule of statutory construction is to ascertain the intent of the legislature by construing words used in the statute in their plain and ordinary meaning unless the legislature has defined particular words or phrases.

Short, 372 S.W.3d at 532 (citations omitted).

With these principles in mind, we turn to the private road statutes. Section 228.358 specifies that a private road shall be a “permanent easement appurtenant.” Although not specifically defined in Chapter 228, Missouri cases have long held “[a]n easement is a non-possessory interest in the real estate of another which confers a right of one person to use that real estate for a general or specific purpose.” Wallace v. Byrne, 672 S.W.3d 96, 107 (Mo. App. E.D. 2023); see also Forbes, 646 S.W.3d at 736 n.3 (quoting Burg v. Dampieri, 346 S.W.3d 343, 353 (Mo. App. W.D. 2011)); see also Farmers Drainage Dist. Of Ray County v. Sinclair Refining Co., 255 S.W.2d 745, 748 (Mo. 1953). Further, an “easement appurtenant creates a benefit to a dominant estate and burdens a servient estate.” Wallace, 672 S.W.3d at 107. Thus, the “interest is not an interest in title.” Stoesz v. Wright, 541 S.W.3d 718, 722 (Mo. App. E.D. 2018). “An easement, strictly speaking, does not carry any title to the land over which it is exercised; it is rather a right to use the land for particular purposes.” St. Charles County v. Laclede Gas Co., 356 S.W.3d 137, 139 (Mo. banc 2011). Homeowners direct us to no case law,⁵ and our research reveals none, which supports the assertion the private road statutes in § 228.340 – § 228.358 establish fee simple ownership.

Homeowners correctly point out that § 228.352 contemplates a scenario where “defendants are not granted any rights to the use and enjoyment of the private road[.]” However, this language, read in conjunction with the “private easement appurtenant” language of § 228.358, only grants a trial court the ability to grant an exclusive easement, which does not alter our statutory analysis. Moreover, this outcome is consistent with well-established Missouri law regarding private roads and easements and the definition of “private road” in § 228.341. Thus, we agree with Landowner's first point arguing the trial court should have awarded Homeowners an easement rather than ownership of the Private Road in fee simple. Having found in favor of Landowner on point 1, points 2 and 3 are now moot, and we need not consider them.

Conclusion

We reverse and remand with instructions to enter a judgment granting a permanent easement appurtenant and all other relief previously set forth, consistent with this Court's analysis.

FOOTNOTES

1.   All statutory references are to RSMo (2016). All rule references are to Missouri Court Rules (2025).

2.   Both sides filed additional motions to amend the Amended Interlocutory Judgment. It does not appear that the trial court ruled on those motions.

3.   As the commissioners’ award was for an easement, and neither party filed exceptions to the award, the amount of the award does not need to be revisited on remand. When exceptions to a commission's award are not filed, the proceedings are complete and therefore end. See Forbes v. Allison, 646 S.W.3d 733, 736 n.4 (Mo. App. S.D. 2022).

4.   Missouri law affords two remedies to owners of real estate with no means of ingress or egress: (1) by the statutory method under § 228.340 et al, or (2) by the common law easement by necessity. These remedies vary slightly with respect to the origin of the necessity. However, they both require demonstration of the need to establish a right to access as a matter of necessity. See Short v. Southern Union Co., 372 S.W.3d 520, 538 (Mo. App. W.D. 2012).

5.   Homeowners argue complete ownership of the road must be transferred to Homeowners instead of an easement because “[a]n easement, which is a non-possessory interest, is by definition not a taking and therefore does not implicate Article 1, Section 28 of the Missouri Constitution.” This is incorrect. “It is a well recognized rule of law that damages may be recovered in a condemnation case, not only for the land actually taken, but also for the decrease in market value to the entire fee as a result of the taking of the easement.” Missouri Public Serv. Co. v. Juergens, 760 S.W.2d 105, 106 (Mo. banc 1988).

BRYAN E. NICKELL, J.

JENNIFER R. GROWCOCK, J. – CONCURS MATTHEW P. HAMNER, J. – CONCURS