This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-00-96

 

Randy D. Pederson, et al.,
Appellants,

vs.

Sabin R. Smith, et al.,
Respondents.

 

Filed June 27, 2000

Affirmed

Anderson, Judge

 

Isanti County District Court

File No. C6971169

 

 

James R. Doran, 416 East Hennepin, Minneapolis, MN 55414 (for appellants)

 

Todd D. Donegan, Thomas L. Satrom, Parker, Satrom, O’Neil & Benjamin, P.A., 123 South Ashland, Cambridge, MN 55008 (for respondents)

 

            Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

ANDERSON, Judge

 

            Appellants assert they established a prescriptive easement or an implied easement by necessity over respondents' land.  Because the evidence in the record supports the district court's conclusion that appellants did not meet their burden to establish the elements of either a prescriptive easement or an implied easement by necessity, we affirm.

FACTS

 

            Appellants Randy and Kimberly Pederson purchased property in Isanti County in 1997.  One end of their property, connecting to a larger area of their property, contains a “dead river” area, that is apparently underwater at various times during each year and which complicates access to the property. 

A road, partially on respondents’ property, runs through appellants’ property.  Shortly before the dead river area the road makes a loop onto higher ground, and this loop area of the road is entirely on respondents' property.  After appellants began to add dirt and otherwise improve the road, respondents blocked appellants' use of the road and this dispute ensued.  Appellants claimed entitlement to use of the road and “loop” through a cartway easement contained in a 1932 deed to their property.  This easement, however, does not appear in respondents' chain of title.  Appellants brought suit claiming, in the alternative, that they had established either a prescriptive easement or an implied easement by necessity.  The court found that appellants had not established either a prescriptive easement or an implied easement by necessity, and appellants then filed this appeal.

 

D E C I S I O N

This court will not set aside a district court's fact findings, made in a bench trial without a jury, unless such findings are clearly erroneous.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999); Minn. R. Civ. P. 52.01.  Due regard is given to the district court's opportunity to judge the credibility of the witnesses, and this court views the record in the light most favorable to the district court's judgment.  IdFindings of fact are considered clearly erroneous only if they are not reasonably supported by the evidence and this court is "left with the definite and firm conviction that a mistake has been made."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  

But when there has been no motion for amended findings of fact or conclusions of law, or for a new trial, appellate review is limited to whether the evidence sustains the findings, conclusions, and judgment.  Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993).  There is no indication of any such motion in the record, and appellants' Notice of Appeal states appeal is taken from the district court's order and judgment entered on November 17, 1999.  This court's review is therefore limited to determining whether the evidence sustains the findings of fact and whether those findings sustain the court's conclusions of law and judgment.

I.

A prescriptive easement is based on prior continuous use and grants only a right of use over the property of another.  Rogers, 603 N.W.2d at 656.  To establish an easement by prescription, a claimant must prove that he or she used the easement for the prescriptive period of 15 years and that this use was "hostile, actual, open, continuous, and exclusive."  Nordin v. Kuno, 287 N.W.2d 923, 926 (Minn. 1980).  These elements must be proved by "clear and convincing evidence."  Rogers, 603 N.W.2d at 657. 

            While generally the elements required to establish a prescriptive easement are the same as in adverse possession, a prescriptive easement claim does not require the same continuity of use as in a claim for adverse possession.  Hartman v. Blanding’s Inc., 288 Minn. 415, 420, 181 N.W.2d 466, 469 (1970) (citing Romans v. Nadler, 217 Minn. 174, 178, 14 N.W.2d 482, 485 (1944)).  Continuity of use varies depending on the type of use, and accordingly courts should not view continuity of use in the prescriptive easement context "as strictly as in the context of adverse possession."  Rogers, 603 N.W.2d at 657.

            In a prescriptive easement claim, the requirement of continuity "depends upon the nature and character of the right claimed."  Hartman, 288 Minn. at 420, 181 N.W.2d at 469 (quotation omitted).  Continuous use must be established by "clear and convincing evidence consonant with the type of use asserted."  Rogers, 603 N.W.2d at 657.  Use that is only occasional and sporadic is not sufficient.  Romans v. Nadler, 217 Minn. 174, 178, 14 N.W.2d 482, 486 (1944).  The property in this case consists of undeveloped land generally used for hunting or camping. 

Because appellants purchased the land only shortly before making this claim, in order to meet the required 15-year period of use they had to "tack" their possession to the previous owners.  See Marek v. Holey, 119 Minn. 216, 219, 137 N.W. 969, 970 (1912) (possession of successive holders may be tacked together, as long as privity is established; privity exists when the later takes under the earlier by descent, will, grant, or voluntary possession); see also Romans, 217 Minn.  At 179, 14 N.W.2d at 485 (generally the same rules apply in easements by prescription as in adverse possession).  Appellants assert that this continuity of possession secured by tacking established the elements of a prescriptive easement.

            For rural or undeveloped property, relatively sporadic use may be suitable to the character of the property and the right claimed and may therefore support a prescriptive easement claim.  See Block v. Sexton, 577 N.W.2d 521, 524-25 (1998) (prescriptive easement on basis of use consisting of driving on cartway several times per month duringsummer months); see also Skala v. Lindbeck, 171 Minn. 410, 413, 214 N.W. 271, 272 (1927) (satisfaction of requirement of actual and visible occupation is dependent upon the nature and situation of land, and uses to which it is adapted).  Evidence in the record reasonably supports the district court's finding that in this case, the use of the disputed easement was so minimal that a prescriptive easement was not established.  Even assuming the testimony of appellants and predecessors in title to be true, at most appellants and predecessors used the property a couple of times per year.  This finding of fact sustains the district court's ultimate conclusion, that such use was not sufficient to establish a prescriptive easement.

The district court also concluded that appellants and their predecessors in title had received permission to use the loop and that therefore they could not establish a prescriptive easement.  Giving deference to the district court's opportunity to judge the credibility of the witnesses, evidence in the record supports the district court's finding that permission had been granted on some occasions.   Where the claimant used the land with the owner's permission, there is no prescriptive right.  Dozier v. Krmpotich, 227 Minn. 503, 507, 35 N.W.2d 696, 699 (1949).  Where use was initially permissive, it must become adverse "to the knowledge of the owner of the servient estate before any prescriptive rights can arise."  Id.  The district court's finding that permission had been granted supports the district court's conclusion that a prescriptive easement had not been established.

II.

Appellants claim they are entitled to an implied easement by necessity, arguing the property is otherwise “landlocked”.  Minnesota courts analyze the rights of an owner of landlocked property under the law of implied easements.  Lake George Park, L.L.C. v. IBM Mid-America Employees Fed. Credit Union, 576 N.W.2d 463, 465 (Minn. App. 1998), review denied (Minn. Jun. 17, 1998).  The elements of an implied easement are:

(1) a separation of title; (2) the use which gives rise to the easement shall have been so long continued and apparent as to show that it was intended to be permanent; and (3) that the easement is necessary to the beneficial enjoyment of the land granted.

 

Id.  (quotation omitted).  While an easement will not be implied unless it is "necessary," all three elements are indicia of an implied easement.  Id.  The existence of an implied easement is determined as of the time of severance of title.  Id.  A "subsequent change of conditions will not defeat or create an implied easement."  Niehaus v. City of Litchfield, 529 N.W.2d 410, 412 (Minn. App. 1995) (quotation omitted).

            The use giving rise to the easement must have been "so long continued and apparent as to show that it was intended to be permanent."  Lake George, 576 N.W.2d at 465 (quotation omitted).  The use must have been "long continued and apparent" as of the time of the severance.  Niehaus, 529 N.W.2d at 412; Rosendahl v. Nelson, 408 N.W.2d 609, 611 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987) (citation omitted). The district court found that appellants did not offer any evidence of a separation of title.  This finding is sustained by the record and supports the district court's ultimate conclusion that appellants did not prove an easement implied by necessity.

            To find an implied easement by necessity, the easement must be necessary, such that the easement is "reasonably necessary for the beneficial enjoyment of the property."  Lake George, 576 N.W.2d at 465.  "Necessary" does not require that the use be indispensable; rather a reasonable necessity is sufficient.  Olson v. Mullen, 244 Minn. 31, 68 N.W.2d 640, 647 (1955).  The party attempting to establish the easement bears the burden of proving necessity.  Id.  The current inconvenience, or cost, involved with the property carries no weight in determining necessity, as necessity at the time of severance governs.  Niehaus, 529 N.W.2d at 412.

The district court's factual finding, that appellants could access the property by boat or by land with neighbors' permission or over their culvert when the water is low, is supported by the evidence.  But this finding does not support the court's conclusion that this evidence was insufficient to establish an implied easement by necessity because appellants had other modes of accessing the property.  The correct analysis is as of the time of severance, and the court instead analyzed current necessity.  See Id.  But any error by the court in applying a current-necessity analysis was harmless.  See Minn. R. Civ.    P. 6 (harmless error to be ignored).  While the district court erred in its application of the necessity analysis, the end result reached, that appellants' claim of an implied easement by necessity failed, is supported by the evidence in the record.

An implied easement is an equitable doctrine, and equity does not favor an appellant who knew he was buying a landlocked parcel.  See Lake George, 576 N.W.2d at 466.  Appellants knew at the time of purchase that the property had access problems.  Here, equity does not favor imposing an easement on respondents' property for the purpose of benefiting appellants.     

Affirmed.