This opinion will be unpublished and

may not be cited except as provided by

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






Donn M. Holmes,





Michael D. DeGrote, et al.,



Henrietta E. Holland,



Filed August 15, 2000


Kalitowski, Judge


Isanti County District Court

File No. C1981137


Clinton McLagan, Esther Lerman, McLagan & Lerman, P.A., 2025 Centre Pointe Boulevard, Suite 260, Mendota Heights, MN 55120 (for appellant)


Clyde E. Miller, Jennings, DeWan, Miller & Anderson, P.A., 307 South Main Street, P.O. Box 586, Cambridge, MN 55008 (for respondents Michael DeGrote, et al.)


Kenneth Prine, Gray Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402-3796 (for respondent Henrietta Holland)


            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Donn M. Holmes challenges the judgment of the district court establishing an easement by necessity over his property to accommodate part of respondents Michael and Patricia DeGrote’s driveway.  Appellant contends (1) the district court erred by ruling that the elements justifying imposition of an easement by necessity were present at the time of severance; and (2) there is no necessity for the easement because the DeGrotes no longer need the southern curve of the driveway to access their property.  We affirm.





Appellant Donn M. Holmes appeals directly from the district court’s final judgment without making a motion for amended findings or a new trial.  Where the challenging party makes no motion for amended findings or conclusions of law, or for a new trial, the only question preserved for appellate review is whether the evidence sustains the findings, conclusions, and judgment.  Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993).  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.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).

An easement by necessity falls within the general category of implied easements, which arise only in specific fact situations.  Olson v. Mullen, 244 Minn. 31, 39-41, 68 N.W.2d 640, 646-47 (1955).  An implied easement arises when (1) unified title to a parcel of land is severed; (2) the use giving rise to the claimed easement has been so apparent and has continued for so long as to show an intent that it be permanent; and (3) the use is necessary to the beneficial enjoyment of the land granted.  Olson, 244 Minn. at 40, 68 N.W.2d at 647 (citing Romanchuk v. Plotkin, 215 Minn. 156, 160, 9 N.W.2d 421, 424 (1943)).  The elements for an easement by necessity are the same as those for an implied easement, except that an easement by necessity also requires “common title at the time of the use of the easement.”  Nunnelee v. Schuna, 431 N.W.2d 144, 148 (Minn. App. 1988), review denied (Minn. Dec. 30, 1988).  The party attempting to establish an implied easement bears the burden of proving that it existed at the time of severance, and changed conditions after severance will neither create nor defeat the easement.  Clark v. Galaxy Apartments, 427 N.W.2d 723, 726 (Minn. 1988). 

Here, there is no dispute that Holmes’s and the DeGrotes’ lots were held in common title by the predecessor owners, Marvin and Henrietta Holland, and that severance occurred in May 1977 when the Hollands sold the eastern half of their five-acre parcel to the DeGrotes.  Holmes argues that the district court erred by imposing an easement by necessity for the southern curve of the driveway because the driveway was not subject to sufficiently “long and continued use” prior to the severance of common title.  Because the record indicates the easement by necessity was established long before the DeGrotes constructed the present driveway, we disagree.  

As the district court acknowledged, the record indicates construction of the southern curve of the driveway occurred no earlier than 1977.  But we reject Holmes’s argument that the timing of the construction of the present driveway determines when the easement by necessity was established.  We have previously noted that an easement by necessity “is unique in that it has no definite location at the time it is created.”  Bode v. Bode, 494 N.W.2d 301, 304 (Minn. App. 1992).  Upon severance, the parties can establish the route of the easement by explicit agreement or implicit acquiescence, and once they agree upon such a route, the courts are powerless to move it.  Id.  For purposes of establishing the easement, the relevant inquiry is whether the DeGrotes’ practice of accessing their lot via the servient estate was “long and continued” during the time the lots were under common ownership. 

Based on Michael DeGrote’s testimony, the district court found that from 1971 to 1977, the DeGrotes used a rough driveway along the northern edge of the servient estate to reach their mobile home, which was then located at the northwestern corner of their current lot.  The record indicates that around the time of the 1977 severance, the Hollands and the DeGrotes established the location of the present driveway by mutual agreement.  Both DeGrotes testified that its layout was dictated by the existence of previously planted trees and by the DeGrotes’ placement of a new home to the south of the old trailer.  The district court found that the driveway’s new course was intentionally cleared and maintained with class five gravel, reflecting the parties’ intention that the route was to be permanent.

Holmes argues that under Niehaus v. City of Litchfield, 529 N.W.2d 410, 412 (Minn. App. 1995), the easement could never be sufficiently “long and continued” because the driveway’s construction was essentially concurrent with severance.  We disagree.  In Niehaus, the city mistakenly placed utility lines outside of its express easement just as the owner was subdividing the property and selling individual lots.  Id. at 411.  A subsequent purchaser of a lot sought removal of the lines and the city attempted to establish an easement by necessity.  This court held that the city could not show sufficient “continued long use” because the severance in title was essentially concurrent with the creation of the implied easement.  Id. at 412.  

Here, by contrast, the implied easement was created long before severance of title took place.  Although the permanent path of the easement was not determined until 1977, the DeGrotes had lived on their parcel since 1971 and regularly crossed the servient estate to reach it.  We conclude that the evidence supports the district court’s finding that the use was sufficiently “long and continued” for purposes of establishing an easement by necessity.


            To be “necessary,” an easement must be more than a mere convenience.  Clark, 427 N.W.2d at 727.  The easement need not, however, be indispensable; rather, reasonable necessity is all that is required.  Romanchuk, 215 Minn. at 163, 9 N.W.2d at 426.  “An easement by necessity lasts only as long as the necessity” and ceases when the owner of the dominant estate obtains a permanent right of public access to his or her property.  Bode, 494 N.W.2d at 304.

            The district court determined that a path to the DeGrotes’ landlocked property is necessary for their enjoyment of their land.  But Holmes argues that the southern curve of the driveway is no longer necessary but is merely a convenience because the DeGrotes can now access their land via a 33-foot recorded easement along the northern section of Holmes’s property.  We disagree. 

            Evidence in the record supports the district court’s finding that constructing an alternate driveway across the recorded easement would be impractical based on the placement of existing buildings and the presence of mature trees.  Where prohibitively expensive construction or the felling of mature trees is necessary to build an alternative route, an easement for the existing route may remain reasonably necessary.  See Rosendahl v. Nelson, 408 N.W.2d 609, 611-12 (Minn. App. 1987) (holding that easement by necessity remained where the existence of a large tree precluded one alternative route, and the prohibitive cost of grading precluded a second), review denied (Minn. Sept. 18, 1987).  We conclude that the district court’s determination that the southern curve of the driveway remained “reasonably necessary” was not clearly erroneous.