This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1565

 

 

Robert L. Erickson, et al.,

Appellants,

 

vs.

 

Grand Marais Public Utilities Commission, et al.,

Respondents,

 

Utili-Trax Contracting Partnerships, LLC, d/b/a Utili-Trax,

Respondent.

 

 

Filed June 29, 2004

Affirmed

Huspeni, Judge*

 

 

Cook County District Court

File No. C7-02-228

 

 

Matthew Albin Anderson, Babcock, Neilson, Mannella, LaFleur & Klint, PLLP, 118 East Main Street, Anoka, MN 55303 (for appellants)

 

James William Canaday, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103 (for respondents Grand Marais Public Utilities Commission, et al.)

 

Michael Leonard Oja, Draw & Heisick, 7701 France Avenue South, Suite 400, Minneapolis, MN 55435 (for respondent Utili-Trax)

 

            Considered and decided by Kalitowski, Presiding Judge, Wright, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellants Dr. Robert Erickson and Sandra Erickson challenge the district court’s grant of summary judgment to respondents Grand Marais Public Utilities Commission (PUC), the city of Grand Marais (the city), Russell Good, and Utili-Trax Contracting Partnership, L.L.C. (Utili-Trax) in the Ericksons’ action seeking to determine adverse claims, seeking declaratory relief, alleging trespass, and alleging negligence arising from the clearing of trees and brush underneath utility lines on their property.  Because the district court properly granted summary judgment concerning the establishment of a prescriptive easement, including the right to clear trees under the utility lines in the interest of public health and safety, we affirm.

FACTS

 

Dr. Robert and Sandra Erickson own an approximately 1.5-acre tract of land, improved with a small seasonal cabin, near the Devil’s Track River between Highway 61 and Lake Superior in Cook County.  Utility lines run through the property and supply electrical power to appellants’ cabin, as well as to other landowners in the utility service area.  The city of Grand Marais has a franchise with the PUC, a separate public entity, to provide electrical service to the city and its outlying areas.  The clearing policies adopted by the PUC for maintaining utility lines are patterned after an ordinance adopted by the city of Grand Marais and the Grand Marais Tree Board for all areas under its control, whether inside or outside the city.  The Tree Board policy recommends complete removal of all trees within ten lateral feet of either side of a utility line, for a total of 20 feet. 

The utility lines have existed on the Ericksons’ property since about 1946, when Donald Tibbetts, a previous owner, built the first cabin on the property and gave permission for their installation.  In 1985, Donald Tibbetts conveyed the property to his son, Thomas Tibbetts, by warranty and quitclaim deeds, subject to a life estate and “[s]ubject to easements, restrictions and reservations of record and further subject to easements for roads and public utilities existing on, over or under said premises.”  When the Ericksons purchased the property in 1991 from Thomas Tibbetts by warranty and corrective quitclaim deeds, their deeds contained an identically worded provision regarding easements.  And when the Ericksons purchased the property, they were aware of the utility lines on the land.

In December 2001, brush and tree cutting was performed underneath the utility lines on the Ericksons’ property as part of an effort to maintain the lines.  All vegetation was removed in a 20-foot wide path in conformance with the Tree Board policy.  A PUC employee supervised the clearing, which was performed by an Utili-Trax employee under a contract with the PUC.  The PUC had ordered the cutting project in response to concerns about a number of electrical power outages in the area, a potential fire hazard existing with overgrown vegetation near the power lines, and the lack of truck access to the property for maintenance.  Before the cutting project, the PUC had experienced, on average, eight outages a month, lasting two to four hours and affecting 15-20 percent of its customer base.  One of the outages had affected a customer on a life-support system.  Evidence in the record established that merely trimming the trees would not provide proper clearance for maintenance vehicles to enter to repair the lines.  The clearing process significantly reduced the number of outages in the area.  Although some tree trimming had been performed in earlier years to protect the reliability of the system and provide access for maintenance, it is unclear whether the PUC or the city had previously completely removed trees under the lines. 

When the Ericksons arrived at their cabin for their first seasonal visit in spring 2002, they noticed that a 20-foot wide swath of trees underneath the power line had been cut to the ground, destroying an attractive bank of moss and lichen and a pet cemetery.  As a result of the cutting, the Ericksons heard increased traffic noise from Highway 61 and could see highway traffic from the cabin for the first time. 

The Ericksons received no notice of the clearing, although their neighbors, who were year-round residents, had received personal notice.  Russell Good, then public works director of the PUC, indicated that although the PUC gave notice by knocking on doors, it was to inform landowners about the cutting rather than to receive permission.  Permission was not deemed to be necessary.  He stated that the trees on the Erickson property were cut as part of the whole project, and that he was not concerned about giving notice to the owner because of the responsibility to maintain the high lines.  

            The Ericksons filed a complaint against the city, the PUC, Good, and Utili-Trax to determine adverse claims, for declaratory relief, for trespass, and negligence for cutting the trees underneath the power lines.  The attorney for the city stipulated that the lines were originally put in pursuant to a license from the Tibbetts family, the previous owners of the Ericksons’ property.  The city and Utili-Trax moved for summary judgment on the basis that a prescriptive easement existed for the utility lines on the Ericksons’ land, and that even if a prescriptive easement did not exist, the city and the PUC were immune from suit under the doctrines of official and statutory immunities.  The district court granted summary judgment, concluding that the city and the PUC had gained a prescriptive easement for the utility lines, that the clearing was necessary to ensure the provision of electricity to the community and fell within the scope of the easement, and that the doctrines of vicarious official immunity and statutory immunity precluded suit on the Ericksons’ claims.[1]  This appeal follows. 

D E C I S I O N

 

In an appeal from summary judgment, the court determines (1) whether there are any genuine issues of material fact, and (2) whether the lower court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  A reviewing court need not, however, defer to a district court’s decision on a pure question of law.  Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).  In appellate review, the evidence is viewed in the light most favorable to the non-moving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  But summary judgment is appropriate against a party who fails to establish the existence of an element essential to his case.  Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986); see also Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). 

A prescriptive easement is based on prior continuous use, and grants a right of use over another’s property.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  In order to establish an easement by prescription, the claimant must prove the use of the easement for a period of 15 years, and that the use was “hostile, actual, open, continuous, and exclusive.”  Nordin v. Kumo, 287 N.W.2d 923, 926 (Minn. 1980) (citation omitted).  These elements must be proved with clear and convincing evidence.  Rogers, 603 N.W.2d at 657. 

            The Ericksons contend that a genuine issue of material fact precludes summary judgment on the question of the existence of a prescriptive easement because the city and the PUC did not show hostile, continuous, actual, and open use for the required 15-year prescriptive period.  The Ericksons do not, however, challenge the visible presence of the utility lines on their property nor do they assert that the lines did not exist continuously for 15 years before the clearing.  Thus, their only colorable argument on the issue of a prescriptive easement appears to be their claim that the use was not hostile.

A claimant’s use is presumed to be hostile on a showing of “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 claimant prevails unless the presumption is successfully rebutted.  Hartman v. Blanding’s, Inc., 288 Minn. 415, 419, 181 N.W.2d 466, 468 (1970).  Absent this presumption, the adverse nature of the claim becomes an issue of fact, and the claimant must prove hostile use by “clear and unequivocal proof of inception of hostility.”  Burns v. Plachecki, 301 Minn. 445, 449, 223 N.W.2d 133, 136 (1974). 

The Ericksons argue that the city’s use of the land did not become hostile because the original use was granted pursuant to a license,[2] and there is insufficient evidence to show that the use ever changed to a hostile one.  Therefore, argue the Ericksons, the PUC and the city at present maintain only a revocable license to run utility lines across the subject land.  See Minn. Valley Gun Club v. Northline Corp., 207 Minn. 126, 128, 290 N.W. 222, 224 (1940) (defining license as a “personal legal privilege enjoyable on the land of another,” which is revocable at the will of the licensor); see also Naporra v. Weckwerth, 178 Minn. 203, 206, 226 N.W. 569, 571 (1929) (distinguishing license or permissive use from mere acquiescence).  Where an original use is permissive, it is presumed that the use continues as permissive “until the contrary [is] affirmatively shown.”  Norgong v. Whitehead, 225 Minn. 379, 383, 31 N.W.2d 267, 269 (1948); see also Johnson v. Hegland, 175 Minn. 592, 596, 222 N.W. 272, 273 (1928) (noting that transforming a permissive use into a hostile use requires a “distinct and positive assertion of a right hostile to the rights of the owner”).[3]

Accepting the concession of the city attorney that the original permission to maintain power lines on the subject property was pursuant to a license, we must inquire whether at some point in time there was notice to the Ericksons or to their predecessors in interest that the city had begun claiming under an assertion of right hostile to their interest in the property, so as to start the prescriptive period running for asserting a claim of a prescriptive easement.  We conclude that such a point in time was the notation of a utility easement on the recorded 1985 deed from the elder Tibbetts to the younger Tibbetts family.  The conclusion is inescapable, we believe, that such a notation was a distinct and positive assertion of hostility to the rights of the servient property owner, transforming the original permissive use into an asserted hostile claim.  This stated utility easement on the recorded 1985 deed provided constructive notice to the Ericksons that a utility easement, rather than a mere license, had been claimed at least since 1985.  See Minn. Stat. § 507.32 (2002) (record of any instrument properly recorded is deemed notice to parties).  “Constructive notice . . . as a matter of law, imputes notice to all purchasers of any properly recorded instrument even though the purchaser has no actual notice of the record.”  Miller v. Hennen, 438 N.W.2d 366, 369-70 (Minn. 1989) (quotation omitted); see also Latourell v. Hobart, 135 Minn. 109, 112, 160 N.W. 259, 260 (1916) (recorded deed was sufficient to put purchasers on inquiry to charge them with notice of conveyance).  We also note that when the Ericksons purchased the property six years later, their deed contained the same provision for a utility easement. 

Thus, we conclude that at least since 1985, the year an easement was noted on their predecessor’s deed, the Ericksons had constructive notice of a “distinct and positive assertion” of a hostile right in the form of a utility easement.  We conclude, further, that a prescriptive easement was established, by clear and convincing evidence, no later than the year 2000.  The clearing project occurred in 2001.  The district court did not err in granting summary judgment on the question of whether respondents had obtained a prescriptive easement for the utility lines on appellant’s property. 

Although the gravamen of the Ericksons’ complaint dealt with the existence of a prescriptive easement, much of their argument centers instead around the extent of an easement.  The primary challenge seems to be not to the existence of the lines themselves but to the extent of the maintenance involved with those lines.  In effect, the question appellants ask is whether the clearing project was a permissible use of the easement. 

We note initially that the use made of the land giving rise to a prescriptive easement measures and defines the scope of the easement.  Romans v. Nadler, 217 Minn. 174, 181, 12 N.W.2d 482, 486 (1944).  “It has long been held that the holder of an easement is not limited to the particular method of use in vogue when the easement was acquired, and that other methods of use in aid of the general purpose for which the easement was acquired are permissible.”  State by Wash. Wildlife Pres., Inc. v. State, 329 N.W.2d 543, 546 (Minn. 1983).  “Every easement carries with it by implication the right, sometimes called a secondary easement, of doing whatever is reasonably necessary for the full enjoyment of the easement itself.”  28A C.J.S. Easements, § 148 (1996); see also Daly v. Duwane Constr. Co., 259 Minn. 155, 163, 106 N.W.2d 631, 636 (1960) (upholding construction of easement that gave power company right to cut down trees affecting power lines, as including right to enter and cut trees on land of adjacent landowner).

The Minnesota Supreme Court has recognized that “[m]unicipalities generally retain rights to trim or cut down trees in the interest of public safety, convenience, or health for such purposes as road improvement, convenience of travelers, and assisting the work of public utilities.”  Miller-Largo v. N. States Power Co., 582 N.W.2d 550, 553 (Minn. 1998) (quotation omitted).  In this case, the city had a designated policy plan that included maintenance of the power line, taking into account the necessary ability to access the line for repairs as well as recent power outages.  The utility line on the Ericksons’ land did not end on their land, but continued on to provide electricity to other customers.  Before the cutting project, the PUC had experienced several outages each month, outages sometimes lasting several hours and affecting a sizeable percentage of the customer base and, in one case, affecting a customer whose very life was very probably dependent on electrical service.  The evidence established that merely trimming the trees would not provide proper clearance for maintenance vehicles to enter to repair the lines.  Therefore, the complete clearing of trees underneath the line was reasonably necessary to maintain the easement for its primary purpose: providing electricity to the PUC’s customers in a safe and efficient manner.  There can be no doubt that health, safety, and welfare issues were involved in the actions of respondents.  Thus, the city and the PUC did not exceed the scope of the utility easement by clearing the trees on the Ericksons’ property. 

Because we conclude that the district court did not err in granting summary judgment in favor of the respondents on the basis that the city and the PUC had a prescriptive easement for utility lines over the Ericksons’ property, which included the right to clear trees as reasonably necessary to maintain the lines in the interest of public health and safety, we need not reach the issues of official immunity and discretionary function immunity. 

Affirmed.



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

[1] After this appeal was filed, Utili-Trax settled and is no longer a party to this lawsuit.

[2]  While we may question the concession by the city attorney that the power lines were originally installed pursuant to a license from the Tibbetts family, we will, for the sake of further analysis, assume the validity of that characterization.

[3]  The Minnesota Supreme Court has recently modified the traditional requirement of establishing hostility when the servient estate is transferred from a family member to a stranger.  See Boldt v. Roth, 618 N.W.2d 393, 398 (Minn. 2000) (holding that, when driveway had been used permissively by family member, transfer of servient estate out of family made a previous permissive use a hostile one); see generally Jeffrey Chelstrom, Property:  Prescriptive Easements and a Change from Permissive to Hostile Use—Boldt v. Roth, 28 Wm. Mitchell L. Rev. 1283 (2002).  Because the transfer of property from the Tibbetts family to the Ericksons occurred in 1991, the rule in Boldt does not apply to establish evidence of hostility occurring before that date.