## Facts

- A 1922 subdivision indenture authorized the subdivision trustees’ predecessors to construct and maintain electric and telephone/telegraphic service over the rear five feet of lots and to grant easements for maintaining such systems.
- In 1922, the trustees conveyed easements to Southwestern Bell Telephone Company and Union Electric to construct, operate, repair, and maintain utility lines and related facilities within the designated strip.
- The parties agreed the utility interests were easements in gross, held independently of any dominant estate.
- In 1981–1982, Continental Cablevision obtained licenses from both utilities and installed cables, wires, and conduits in the same easement area to transmit television programming.
- The trustees sued seeking an injunction and removal of the facilities, plus damages and restitution (quantum meruit), alleging Continental’s use exceeded the easements’ scope and constituted a continuing trespass.
- The trial court dismissed for failure to state a claim, relying on the easement documents and an affidavit submitted with the motion.

## Issues

1. Whether the utilities’ easements in gross were exclusive and therefore apportionable so the utilities could authorize a third party to use the easement area without additional consent from the servient owner.
2. Whether installation and operation of cable television facilities were within the scope of the granted utility purposes or instead an unauthorized enlargement that overburdened the servient land and amounted to trespass.

## Decision

- The appellate court affirmed the dismissal for failure to state a claim.
- The utility easements in gross were construed as exclusive of the servient owner’s participation and therefore apportionable.
- The utilities could license Continental to use the easement area for cable transmission so long as the use was not inconsistent with the easements’ purposes.
- Cable television lines and related equipment were held consistent with the granted utility/communication uses and did not impose an additional burden beyond what the easements contemplated.

## Legal Principles

- An easement in gross that is exclusive of the servient owner’s right to make similar uses is generally apportionable by the easement holder.
- Apportionment permits the easement holder to authorize third-party use that remains within the scope and purpose of the original grant.
- The scope of a utility easement is determined by the grant’s language and purpose; modern communication services delivered through similar physical infrastructure may fall within broadly stated utility/communication purposes.
- A servient owner cannot recover for trespass or overburdening where the challenged use is a permitted apportionment and does not materially increase the physical or functional burden on the servient estate.

## Conclusion

The court upheld dismissal because the utilities held exclusive, apportionable easements in gross and could license Continental’s cable facilities, which were consistent with the easements’ utility and communication purposes and did not add a legally cognizable burden on the servient property.


Henley v. Continental Cablevision of St. Louis Cnty., Inc., 692 S.W.2d 825 (Mo. Ct. App. 1985)