## Facts

- In 1972, Willis White purchased an undeveloped, wooded tract in Wayne County, Missouri, adjacent to land owned by the Ruth R. Millington Living Trust.
- White’s tract could be reached from an improved county road only by using an unimproved dirt road (often referred to as “road A”) that ran west to east across the Trust’s property to White’s land.
- Road A was well defined and visible on the ground, and it showed signs of vehicle travel.
- The area was wooded and sparsely settled; neither tract was fenced, and both tracts were largely unimproved.
- After buying the property, White and his family used it for recreational purposes, including camping, and they went to the property most weekends.
- From 1972 forward, the Whites used road A for ingress and egress in a manner consistent with their weekend recreational use.
- The Whites’ presence on their land became more apparent over time, including by constructing improvements on their own property (such as a cabin and a machine shed).
- Millington knew road A existed on the Trust’s land and viewed it as a woods or logging road.
- At various times, Millington placed obstacles across road A (including barbed wire and a cable) to block travel, but the obstacles were later removed and travel on the road continued.
- Although Millington did not know that the Whites, in particular, were using road A, the evidence showed it was apparent that someone was using the road.
- In 1983, White contacted Millington about cutting trees along the road; Millington responded by writing to White and attempting to arrange a written agreement allowing White to use the road.
- The Whites filed a two-count petition: (1) a declaration that they had a prescriptive easement over road A for access, and (2) in the alternative, establishment of a private road of necessity under Missouri statute.
- The Trust tendered an easement along the south eighteen feet of its property for a new road; the trial court denied relief on the Whites’ petition and declared the Whites were entitled only to the tendered easement.
- The trial court’s stated reason for rejecting prescription was the lack of proof that the Trust had notice of the Whites’ use for the prescriptive period.
- The Whites appealed.

## Issues

1. Whether Missouri law requires proof that the servient owner had actual notice of the claimant’s adverse use for the prescriptive period, or whether open and notorious use can supply constructive notice.
2. Whether the Whites’ weekend and recreational use of a well-defined dirt road across the Trust’s land was sufficiently open, notorious, continuous, and adverse to support a prescriptive easement.

## Decision

- The Missouri Court of Appeals, Southern District, reversed the trial court’s judgment denying the prescriptive-easement claim and remanded.
- The court held the trial court misapplied the law by requiring proof of the Trust’s actual notice of the Whites’ adverse use.
- The court held that constructive notice may be shown through use that is open and notorious, and that the evidence supported constructive notice here.
- The reversal required further proceedings consistent with applying the constructive-notice standard to the Whites’ prescriptive-easement claim.

## Legal Principles

- A prescriptive easement in Missouri requires proof of use that is continuous and uninterrupted for the statutory period, open and notorious, and adverse under a claim of right.
- The notice component of prescription may be satisfied by constructive notice; actual knowledge by the servient owner is not required if the use is visible and apparent.
- Use is “continuous” when it occurs with the regularity expected for the type of property and the claimant’s use of it; frequent weekend use may qualify for recreational property.
- “Open and notorious” use is use that would be observable to a reasonably attentive owner, such that the owner is chargeable with knowledge that the property is being used as a matter of right.
- Attempts by the servient owner to block a roadway, followed by continued travel after barriers are removed, may support a finding that the use is adverse rather than permissive.

## Conclusion

The appellate court held that the trial court applied the wrong notice rule by demanding proof that the Trust actually knew the Whites were using the road, and it ruled that the Whites could satisfy the notice requirement for a prescriptive easement through constructive notice based on open and notorious use of the well-defined road; it reversed and remanded for further proceedings under that standard.


White v. Ruth R. Millington Living Trust, 785 S.W.2d 782 (1990)