Easements, Access and Well Agreements

Possibly. A prescriptive easement in Missouri requires use that is continuous, uninterrupted, visible and adverse for ten years — Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504 (Mo. banc 1993). Unlike adverse possession, the use need not be exclusive, because the neighbour claims only a right to use rather than to possess — so the fact that you also used the drive does not defeat the claim. Nor does “adverse” require hostility in the sense of belligerency. Missouri courts have added that the claim of right must be particular to the claimant rather than as a member of the general public, and that the elements must be proved by clear and convincing evidence, noting that the law does not favour prescriptive easements. What defeats a claim is permission: a short written licence, signed and dated, makes the use permissive. Do it before ten years run — permission given after the easement is already established has no effect.

How badly you need it. Necessity is the stricter theory: Orla Holman Cemetery, Inc. v. Robert W. Plaster Trust (Mo. banc 2010) requires a prior common source of title and that the way claimed be the sole means of ingress and egress, holding that “[t]he rule is…one of necessity, not of convenience” and rejecting a claim that the route was merely the most convenient access. Implication from prior use asks less: unity then separation of title; an obvious benefit to one part and burden to the other existing at the time of conveyance; use by the common owner in the altered condition long enough and in circumstances showing the change was meant to be permanent; and reasonable necessity rather than absolute necessity. In practice that distinction decides most Missouri access cases — a parcel with a poor second route loses on necessity but may still win on implication if a visible, permanent use existed when the parcels were split.

Yes, through a statutory proceeding that works like condemnation — and you pay for it. Section 228.342, RSMo permits an owner with no access, or insufficiently wide access, to petition the circuit court where the road would lie, naming the servient owners as defendants, if the road is one of strict necessity — which the statute defines to include necessity to use the property for the uses permitted by law. The road may not exceed forty feet wide and must do as little damage as practicable (§ 228.345). After a nonjury hearing the court either dismisses the petition or fixes the location and enters an interlocutory order that must also assign responsibility for construction and maintenance (§ 228.352). Three disinterested commissioners then assess each defendant’s damages (§ 228.355). Exceptions are due within ten days, and if any are filed a jury sets the damages (§ 228.358).

You lose the road for seven years. Section 228.362, RSMo provides that the plaintiff may not use the road before final judgment except on a bond covering probable damages and costs, and may not use it afterward until appeals are exhausted and the damage award is satisfied. Failure to satisfy the award within sixty days after the judgment becomes final means the proceeding is deemed abandoned — and no execution issues on the award, so the defendant cannot collect it; the plaintiff simply gets nothing. Then comes the real consequence: a voluntary dismissal after the commissioners’ report, or an abandonment, bars the plaintiff and its successors and assigns for seven years from petitioning again for a private road over the same land or any part of it. The practical lesson is to know what you are willing to pay before the commissioners are appointed, not after they report.

Petition the circuit court for a maintenance plan. Section 228.369, RSMo, enacted in 2012, applies where a private road is used by more than one homeowner, there is no prior court order or written agreement governing maintenance — including deed covenants and permit conditions — and the benefited owners cannot agree in writing. Any one or more of them may petition for an order establishing a plan of maintenance and apportioning costs. The reach is broad: § 228.341 defines the private road for this purpose as any road established under the chapter or any easement of access, regardless of how created, providing motor-vehicle ingress and egress for residences. Costs must be apportioned commensurate with use and benefit — equal division, proportionate to assessed value, front footage, or usage. The court may appoint commissioners and designate a supervisor. The order is recorded with the recorder of deeds, and any benefited owner may sue to enforce it. Roads in recorded plats with owners’ associations, and roads owned by governments, are excluded.

Yes, but not quickly. Section 228.374, RSMo provides that a prior agreement or court order establishing a plan of maintenance may be amended, modified or restated at any time by a recorded agreement signed by all the homeowners or other benefited owners — which is the easy route if everyone agrees. If they do not, court proceedings to amend generally may not be filed within seven years of a prior order, except on a showing that development has rendered the plan obsolete or that the cost-sharing is no longer equitable. Missouri courts have read § 228.369 as giving the trial court discretion over the apportionment method among those the statute lists, and have upheld dividing a private road into sections where the evidence showed different owners benefited from distinct portions — so an owner at the near end of a long lane is not automatically stuck paying for the far end.

It depends on whether it changes the quality of the burden. Missouri’s test comes from Maasen v. Shaw, 133 S.W.3d 514 (Mo. App. E.D. 2004): the question is “whether the additional use represents only a change in the degree of use, or whether it represents a change in the quality of the use,” because a change in quality imposes “a substantial new burden on the servient estate.” That test cuts both ways — the court’s own example was that parking vehicles on an access easement is an impermissible change in quality because it places an obstruction on the land. As the servient owner you retain the right to use your land for any purpose that does not unreasonably interfere with the easement, which often permits a gate but rarely a locked one without providing keys. Where the easement instrument does not specify the purpose, courts look to the surrounding circumstances and prior usage to determine what the parties intended. Get the answer before you build it.

Yes, but not by neglect. Creech v. Noyes, 87 S.W.3d 880 (Mo. App. E.D. 2002), is direct: “Mere nonuser of an easement acquired by grant, however long continued, does not of itself constitute abandonment.” An easement is abandoned only where there is nonuse coupled with an act or omission showing a clear intent to abandon — there must be “evidence of an intention to abandon as well as of the act by which that intention is put into effect,” and the acts must be “of a character so decisive and conclusive as to indicate a clear intent to abandon.” The party asserting abandonment bears that burden by clear and convincing evidence. Easements can also terminate by merger when one owner acquires both estates, by the terms of the instrument, by a recorded release from the holder, or — for an easement by necessity — when the necessity ends. A neighbour who has not used a recorded easement in twenty years still has it; the reliable way to clear it is a recorded release.

Yes, and Missouri gives you nothing to fall back on if you skip it. There is no Missouri statute governing shared well agreements — the Water Well Drillers’ Act regulates construction, records and plugging, not the allocation of use, cost or repair between neighbours. Whatever the parties did not write down is unresolved. The practical pressure usually comes from lending: FHA treats a shared well as one serving two to four homes under a binding agreement meeting its requirements; USDA Rural Development requires that a shared well serve no more than four living units absent local code approval and that there be a valve on each dwelling; and VA requires a permanent easement allowing maintenance and repair together with a recorded agreement binding on the signatories and their successors in title. A handshake that has worked for fifteen years will fail at the first closing. Since lender requirements are revised periodically, confirm the current version applicable to the specific loan.

Start with legal descriptions of every benefited and burdened parcel, then grant permanent appurtenant easements for the well site, pump house, water lines, electrical service and — the piece most homemade agreements miss — access for maintenance and repair. Say expressly that it binds successors and assigns, and record it: under § 442.400, RSMo an unrecorded instrument is valid only between the parties and those with actual notice, which protects nobody who buys next door. Then the operating terms: a stated formula for ordinary costs (electricity, testing, treatment) separate from capital repairs; a consent threshold with an emergency self-help and reimbursement clause; a valve on each service line; a testing cadence and who pays; a cap on the number of connections, since the federal four-unit ceiling and the three-connection “domestic well” line in 10 CSR 23-1.010 both matter; allocation of the plugging duty; and default remedies, a lien for unpaid shares, attorney’s fees, insurance, notice, dispute resolution, and amendment by recorded instrument signed by all owners.

For your own house, generally yes — with two important qualifications. Section 256.607.2, RSMo permits a person without a permit to construct a well on their own or leased property intended for use only in a single-family house that is their permanent residence, or only for farming on their farm, but only “where the waters to be produced are not intended for use by the public or in any residence other than his own.” So the exemption evaporates in exactly the shared-well scenario. Second, the same subsection requires that such a person “shall comply with all rules and regulations as to construction of wells” — the exemption is from the contractor permit, not from the construction code at 10 CSR 23-3, which governs location and setbacks, casing, grouting, liners and wellhead completion, and varies by drilling area across the state. Records must reach the division within sixty days under § 256.614. Anyone acting as a contractor for another owner needs a permit under § 256.607.1.

The landowner’s — which after closing means yours. Section 256.615.1, RSMo requires wells abandoned by the landowner after August 28, 1991 to be plugged by the landowner under the regulations, and 10 CSR 23-3.110 (as amended effective November 30, 2024) puts responsibility on the well owner, requires a permitted contractor for contaminated wells, and lets the department order plugging where a well threatens groundwater. The § 256.620 grandfather for wells existing on September 28, 1985 expressly carves out the plugging duty, so age is no answer. The bill often arrives later, through § 256.628: a public water supplier connecting a structure previously served by a well must notify the owner and may not connect until the owner attests that known abandoned wells are plugged, that there are none, that wells remain in use, or that they will be plugged within ninety days — and service can be terminated for non-compliance. Search the public well records during diligence and price it.

Reasonable use — and this is an area where older advice is simply wrong. Missouri formerly followed the modified common enemy doctrine, under which a landowner could largely fend off surface water without liability. In Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993), the Supreme Court of Missouri held that the common enemy doctrine “even as modified, has outlived its usefulness in our state” and adopted reasonable use in its place: each possessor may make reasonable use of their land even though the flow of surface waters is altered and some harm results, but “incurs liability when his harmful interference with the flow of surface waters is unreasonable.” Liability arises where the conduct is intentional and unreasonable, or negligent, reckless, or an abnormally dangerous activity. Practically, these cases are built on evidence: dated photographs and video during rain events, grading and stormwater permits, contractor records, and often an engineer. Municipal stormwater and grading ordinances frequently give a faster route than a lawsuit.

Missouri applies the reasonable use rule to percolating groundwater, adopted in Higday v. Nickolaus, 469 S.W.2d 859 (Mo. App. 1971). An overlying owner “may use the subjacent groundwater freely, and without liability to an adjoining owner, but only if his use is for purposes incident to the beneficial enjoyment of the land from which the water was taken.” The distinction the case draws is between use on the land and export off it: Higday allowed a claim to proceed where a municipality proposed to extract percolating water for sale away from the land, which is not a use incident to beneficial enjoyment of the overlying tract and is actionable where it impairs a neighbour’s beneficial use. So a neighbour’s ordinary domestic or farming use, however inconvenient for your water table, is generally lawful; large-scale extraction for off-tract sale is a different question. Missouri applies reasonable use to watercourses as well.