This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Robert Bassett, et al.,





Gregory Thompson, et al.,



Filed January 23, 2001


Willis, Judge


Cass County District Court

 File No. C3990946



Thomas P. Malone, Bradley A. Kletscher, Barna, Guzy & Steffen, Ltd., 200 Coon Rapids Blvd., 400 Northtown Financial Plaza, Minneapolis, MN 55433 (for appellants)


Gregory D. Larson, P.O. Box 486, Park Rapids, MN 56470; and Clinton McLagan, McLagan & Lerman, P.A., 2025 Centre Pointe Blvd., Suite 260, Mendota Heights, MN 55120 (for respondents)


            Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Holtan, Judge.*


U N P U B L I S H E D   O P I N I O N




            Appellants challenge the district court's determination that they had not acquired a prescriptive easement over respondents' property.  Because the record supports the court's finding that appellants' use was permissive, we affirm. 



            Appellants Bernice and Robert Bassett, mother and son, and respondents Gregory and Susan Thompson are record owners of adjoining residential properties in Cass County.  In 1996, the Thompsons purchased the property at issue from Ronald and Jeanette Terlinde.  The Bassett family has owned the adjoining property since 1954.  The Bassetts' 1954 deed shows that the Terlinde property was subject to

an easement to provide ingress and egress to the County road and the lake, this to include the use of the private road on the North side of the premises above conveyed and also the right to erect and maintain a dock on the Lake (Wabedo) for private purposes.


            In accordance with their deed, the Bassetts used the roadway for ingress and egress to old Highway 54 and Wabedo Lake, which lie west of their property.  In 1967, Cass County condemned a portion of the Terlindes' property to construct new Highway 54, roughly parallel to old Highway 54 but on the east side of the Bassetts' property.  In the process of building new Highway 54, the county extended the roadway on the Terlindes' property to the east to provide construction crews with access from old Highway 54 to new Highway 54.  The current dispute arose when the Thompsons, the current owners of the Terlinde property, placed a chain-link fence across the roadway at new Highway 54 and thereby denied the Bassetts access to new Highway 54 across the Thompsons' property.

            The Bassetts asked the district court to determine that they had an easement by prescription over that portion of the roadway that runs east from their property to new Highway 54.  After a bench trial, the district court concluded that, because the Bassetts' use of the Thompsons' property between the Bassetts' property and new Highway 54 was permissive rather than hostile, the Bassetts had failed to prove the elements of a prescriptive easement.  The Bassetts appealed.



            Because the Bassetts did not move for a new trial or for amended findings or conclusions of law, a reviewing court is limited to determining whether the evidence sustains the findings of fact and whether the findings sustain the conclusions of law and judgment.  Gruehagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).  A district court's factual findings will not be set aside unless they are clearly erroneous.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (citing Minn. R. Civ. P. 52.01).  Due regard is given to the district court's opportunity to judge the credibility of the witnesses, and appellate courts view the record in the light most favorable to the district court's judgment.  Id.  Findings of fact are clearly erroneous only if they are not reasonably supported by the evidence and reviewing courts are "left with the definite and firm conviction that a mistake has been made."  Id. (citation and quotation omitted).  The district court's legal conclusions are reviewed de novo by this court.  Lindquist v. Weber, 404 N.W.2d 884, 886 (Minn. App. 1987), review denied (Minn. June 26, 1987).  

            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 a period of 15 years and that the use was "hostile, actual, open, continuous, and exclusive."  Nordin v. Kuno, 287 N.W.2d 923, 926 (Minn. 1980) (citing McCuen v.McCarvel, 263 N.W.2d 64, 65 (Minn. 1978)).  These elements must be proved by "clear and convincing evidence."  Rogers, 603 N.W.2d at 657.

It is undisputed that the Thompsons own the roadway in question and that the Bassetts' use of the roadway to access new Highway 54 was actual, open, continuous, and exclusive for 15 years.  The sole issue is whether the use was hostile or permissive. 

A claimant's use is presumed to be "hostile" where the claimant shows

open, visible, continuous, and unmolested use for the statutory period that is inconsistent with the owner's rights, under circumstances from which the owner's acquiescence may be inferred.


Block v. Sexton, 577 N.W.2d 521, 524 (Minn. App. 1998).  If the presumption of hostility applies, the property owner has the burden of demonstrating that the use was permissive.  Larson v. Amundson, 414 N.W.2d 413, 418 (Minn. App. 1987).  Without this presumption, the easement claimant must prove hostile use by "clear and unequivocal proof."  Block, 577 N.W.2d at 524 (citation and quotation omitted).  Hostile use does not refer to personal animosity or physical overt acts against the property owner.  Grubb v. State, 433 N.W.2d 915, 918 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).

The parties agree that (1) in 1963, Bernice Bassett's father received permission from the Terlindes to construct a garage and septic system on the Terlinde property; (2) from 1974 to 1994 the Bassetts wrote the Terlindes annual "rent" checks in the amount of $1 for use of their land; and (3) the Bassetts performed minimal maintenance on the entire roadway from old Highway 54 to the new highway, including mowing and filling it with rock after washouts.

The Bassetts contend that there was no discussion between the two couples regarding use of the roadway for access to new Highway 54.  Bernice Bassett testified that the annual checks paid to the Terlindes were "for the space where the garage set on the land" and not for use of the roadway.  Further, Robert Bassett testified that the Terlindes knew the Bassetts were using the roadway to access new Highway 54, but the Bassetts neither asked for nor were given permission for that use.   

At trial, Ronald Terlinde testified that his father required the annual rent payment for the Bassetts' "land usage," specifically for the Bassetts’ garage, porch, septic system, and dock and boatlift storage, and for the roadway at issue.  Further, he testified that, " I told [my father] to charge a dollar a year so they couldn't claim the property."

Gertrude Terlinde testified that she overheard a conversation in 1968 or 1969, in which her husband gave oral permission to Bert Allen, Bernice Bassett’s father, to use the roadway.  The district court specifically stated that, in arriving at its decision, it did not rely on this testimony.  The Bassetts reason that, because the district court disregarded that portion of Gertrude Terlinde's testimony, "the testimony and documents allow only one conclusion to be reached: that the payment was made for only the garage," arguing that the testimony of Bernice Bassett is uncontradicted.  But Ronald Terlinde testified that the annual rent payment included the use of the roadway, and even if Bernice Bassett's testimony were uncontradicted, it would not necessarily be dispositive.  See Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (stating finder of fact is not required to accept uncontradicted testimony if surrounding facts and circumstances afford reasonable grounds for doubting its credibility).  It is the district court's province to evaluate the credibility of witnesses.  Pickar v. Erickson, 382 N.W.2d 536, 538 (Minn. App. 1986). 

The Bassetts argue that the district court misapplied the burden of proof by requiring them to establish that their use was hostile.  The district court did not apply the presumption that the Bassetts' use of the roadway to the east was hostile; as a result, the Bassetts were required to show hostile use.  See Block, 577 N.W.2d at 524 (stating that where presumption of adverseness is unavailable, claimant must prove hostile use by "clear and unequivocal proof.") (citation omitted).

For the presumption to apply, the use of the property must have been "under circumstances from which the owner's acquiescence may be inferred."  Id.  In this context, acquiescence means "passive conduct" by the owner "[c]onsisting of failure on his part to assert his paramount rights against the invasion thereof by the adverse user."  Rice v. Miller, 306 Minn. 523, 525, 238 N.W.2d 609, 611 (1976) (quoting Hartman v. Blanding's Inc., 288 Minn. 415, 422, 181 N.W.2d 466, 470 (1970)).  Further, permission means more than mere acquiescence; it requires the grant of permission in fact or by license.  Ehle v. Prosser, 293 Minn. 183, 191, 197 N.W.2d 458, 463 (1972).

The Bassetts argue that the Terlindes never gave them permission or a license to use the roadway; rather, the Terlindes acquiesced in the use.  But there can be no acquiescence without knowledge of the rights being surrendered.  See Romans v. Nadler, 217 Minn. 174, 181, 14 N.W.2d 482, 486 (1944) (stating that trespasser under claim of right should be required to "run up his flag of hostile claim" to warn owner "that, if he acquiesces, adverse rights will be established against him").  The easement claimant must give notice to the property owner that the claimant's use of the easement is under a claim of right and contrary to the property owner's rights.  Id.  There is no evidence in the record of any such notice. 

The district court concluded that "the Terlindes made the effort each year to collect the one dollar rent for use of the land," and "it is evident that the Terlindes wished to preserve their right to possession of their property."  Ronald Terlinde testified that the $1 annual rent was charged to the Bassetts "so they couldn't claim the property."  This was, in effect, an assertion by the Terlindes of their paramount rights against the Bassetts' use of the roadway to new Highway 54.  See Rice, 306 Minn. at 525, 238 N.W.2d at 611 (explaining that failure of property owner to assert paramount rights against easement claimant results in owner's acquiescence in use of property).  The Terlindes' conduct was not passive.   The evidence supports the district court's determination that the Bassetts' use of the roadway for access to new Highway 54 was permissive and that, therefore, they did not acquire a prescriptive easement over the property now owned by respondents.







* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.