This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).








In the Matter of:

Jill A. Mehrkens,





Ralph L. Ryan, et al.,




Filed July 22, 2003


Robert H. Schumacher, Judge


Goodhue County District Court

File No. C1011842



Richard D. Gorman, Vogel & Gorman, PLC, Masonic Building, 454 West Fourth Street, Post Office Box 39, Red Wing, MN 55066 (for respondent)


Christopher P. Renz, Thomsen & Nybeck, P.A., Edinborough Corporate Center East, 3300 Edinborough Way, Suite 600, Edina, MN 55435 (for appellants)



Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.



Appellants Ralph L. and A. Catherine Ryan challenge the district court order that concludes they were not bona fide purchasers in good faith of their property and grants respondent Jill A. Mehrkens, the Ryans' neighbor, a prescriptive easement and an implied easement over the Ryan property. We affirm.


The Ryans and Mehrkens own adjoining residential lots on the shores of Lake Pepin in Red Wing, Minnesota; the Ryan lot is located west of the Mehrkens lot. The parties' homes are built on a bluff overlooking the lake; a steep, wooded hillside leads from the homes down to the lake. At all times pertinent to this lawsuit, both lots accessed the lake via a footpath that began on the (eastern) Mehrkens lot, crossed the property line onto the (western) Ryan lot, and continued on the Ryan lot down the hillside to the beach. This dispute concerns Mehrkens's right to use the footpath.

In 1938, Mehrkens's grandparents purchased the eastern lot, on which they resided and operated a boat-and-cabin rental business. At the time of purchase, Mehrkens's grandparents and their guests used the footpath daily to access both Lake Pepin and a well on the western lot, their only source of drinking water. Mehrkens's mother testified that (1) between 1938 and the 1970's, the path was used continuously by her family and by fishing resort clients (during fishing season); (2) the path's location did not change; (3) her father maintained the path; and (4) her family never received permission from any of the various owners of the western property (currently the Ryan lot) to use the footpath. Mehrkens's father testified that between 1954, when he first visited the fishing resort, and the mid-1970's, when the resort closed, the resort's clients and owners used the footpath continuously and without permission or objection from the owners of the western property.

Mehrkens's grandparents, who purchased the eastern lot in 1938, sold the lot to Mehrkens's parents in 1971. Mehrkens's parents sold the lot to respondent Jill A. Mehrkens in 1984.

The Ryans purchased the western lot in 1972. The Ryans' deed to the lot makes no mention of an easement or any other encumbrance. At trial, both Ryans testified that at the time of purchase, they saw the footpath and were aware it began on the Mehrkens lot, crossed the property line, and ended on the western lot. Ralph Ryan testified the footpath was "very much defined" but stated he did not discuss the footpath with either the seller or the realtor prior to purchase. He also testified that after he purchased the lot in 1972, Mehrkens's grandmother requested his permission to use the footpath to access the lake from the eastern lot, and that he granted her permission.

In 1992, a dispute developed between the parties concerning Mehrkens's right to use the footpath. Mehrkens brought an action in district court seeking a declaratory judgment that she was entitled to an easement over the footpath. The Ryans brought a counterclaim against Mehrkens for trespass, damage to property, and creating a nuisance.

After a court trial, the district court made findings of fact sufficient to conclude (1) the Ryans had notice of the easement across their property at the time of purchase, and therefore took the property subject to the easement and (2) Mehrkens has a prescriptive easement and an implied easement across the Ryan property. The court provided a legal description of the easement. The court denied the Ryans' motion for amended findings of fact, conclusions of law, and a new trial.


The dispositive issues in this matter directly involve findings of fact by the district court following a bench trial. This court may not "set aside [such facts] unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. "Findings of fact are clearly erroneous only if the reviewing 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) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)). Clearly erroneous findings are "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). If there is reasonable evidence to support the district court's findings, this court will not disturb them. See id. The record is considered in the light most favorable to the judgment of the district court. See Northwest Tractor & Equip. Co. v. Wadsworth, 229 Minn. 213, 215, 38 N.W.2d 841, 843 (1949).

1. The Ryans argue the district court clearly erred by finding they had notice of the easement across their property at the time of purchase, were therefore not bona fide purchasers in good faith, and took the property subject to the easement.

It is undisputed here that the deed to the Ryan property, as recorded by the Ryans, does not contain an easement. An unrecorded real estate interest is void against a subsequent bona fide purchaser in good faith. Minn. Stat. 507.34 (2002). A "purchaser in good faith" is one who gives consideration without actual, implied, or constructive notice of any inconsistent, outstanding rights of others. Miller v. Hennen, 438 N.W.2d 366, 369 (Minn. 1989).

It is axiomatic that where a burden has been imposed upon land sold, assuming the marks of the burden are known to the purchaser or are open and visible and apparent on ordinary inspection of the premises, the purchaser takes the title with the servitude upon it. It has long been recognized in Minnesota that a person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement.


Levine v. Twin City Red Barn No. 2, Inc., 296 Minn. 260, 264, 207 N.W.2d 739, 742 (1973) (citations omitted). Because the easement here was not recorded, the Ryans did not take the property subject to the easement unless they had notice of it. Mehrkens concedes the Ryans did not have actual or constructive notice of the easement, but argues they had implied notice. A finding of implied notice is based upon actual knowledge of facts that should put the purchaser on further inquiry. Miller, 438 N.W.2d at 370.

The Ryans testified that at the time of purchase, they saw the maintained footpath that crossed the property line from the eastern lot to the western lot. Based on this testimony, the district court found the Ryans had implied notice of the easement and concluded they purchased the lot subject to the easement. The district court's finding was reasonably supported by the evidence and not clearly erroneous.

2. The Ryans next argue the district court clearly erred by finding the facts necessary to conclude Mehrkens has a prescriptive easement across the Ryan property.

To establish a prescriptive easement, a party must show that the property has been used in an actual, open, continuous, exclusive, and hostile manner for 15 years. See Ehle v. Prosser, 293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972). The Ryans do not dispute that Mehrkens's use of the footpath was actual, open, continuous, or exclusive. That use is therefore presumed to be adverse or hostile unless the Ryans rebut the presumption. Nordin v. Kuno, 287 N.W.2d 923, 926 (Minn. 1980).

The Ryans argue because Mehrkens only used the footpath between 1984, when she purchased the lot, and 1992, when Ralph Ryan told her not to use it without permission, she failed to show 15 years of hostile use. But an easement need not be established anew by each successive owner of a property: "[o]nce a prescriptive easement comes into existence, it passes to subsequent owners of the property." Block v. Sexton, 577 N.W.2d 521, 524 (Minn. App. 1998) (citing Swedish-American Nat'l Bank of Minneapolis v. Connecticut Mut. Life Ins. Co., 83 Minn. 377, 382, 86 N.W. 420, 422 (1901)).

The district court found Mehrkens and her predecessors in interest have used the path from 1938, when her grandparents purchased the eastern lot, to the present. At trial, the Ryans argued they granted permission in 1972 to Mehrkens's grandparents to use the path, and the use was not therefore hostile. By 1972, the easement had long been established, and could not be defeated by a grant of permission. See id. The Ryans did not rebut the presumption that Mehrkens's use of the path was hostile. The district court did not clearly err by finding the facts necessary to establish Mehrkens has a prescriptive easement over the footpath.

Because we hold the Ryans purchased the western property subject to Mehrkens's prescriptive easement in the footpath, we do not reach the issue of whether Mehrkens also had an implied easement in the footpath. We note, however, the record contains no evidence directly addressing whether the easement was necessary to the beneficial enjoyment of the land in 1929, when the original owner divided the property into two lots. See Olson v. Mullen, 244 Minn. 31, 41, 68 N.W.2d 640, 647 (1955) (stating existence of easement by implication requires evidence easement was necessary to enjoyment of land upon severance of unity of property's ownership).

The district court did not clearly err by finding facts sufficient to conclude Mehrkens has a prescriptive easement in the disputed footpath and the Ryans had implied notice of the easement at the time of purchase and took subject to it.