This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Michael Wasiluk, et al.,





City of Shoreview,



Filed July 26, 2005


Kalitowski, Judge


Ramsey County District Court

File No. C5-02-10270


Chad D. Lemmons, Sarah J. Sonsalla, Kelly & Fawcett, P.A., 2350 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellants)


Pierre N. Regnier, Jessica E. Schwie, Jardine, Logan & O’Brien, P.L.L.P., 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, MN 55042 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants contend that the district court erred in granting respondent City of Shoreview’s motion for summary judgment and in denying appellants’ application for writ of mandamus to require respondent to grant appellants a building permit.  We affirm.


            On an appeal from summary judgment, the reviewing court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            In April of 2000, appellants applied for a building permit for a garage on the back of their residential property.  Appellants proposed that they could access the garage from Dohm’s Alley, which runs behind their property.  Respondent denied appellants’ permit application because appellants did not have legal access to Dohm’s Alley.  In Minnesota, municipalities may only issue building permits where a proposed building has legal access.  See Minn. Stat. § 462.358, subd. 5 (2004).  Because it is undisputed that appellants do not have a deed to the alley, they must show entitlement to legal access under one of the following legal theories:  (1) easement by necessity; (2) easement by prescription; or (3) public dedication.


            1.         Easement by necessity

            “An easement by necessity falls within the general category of implied easements, which arise only in specific fact situations.”  Niehaus v. City of Litchfield, 529 N.W.2d 410, 412 (Minn. App. 1995).  An implied easement is created by:  “(1) a separation of title; (2) the use of 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.”  Romanchuk v. Plotkin, 215 Minn. 156, 160-61, 9 N.W.2d 421, 424 (1943); Rosendahl v. Nelson, 408 N.W.2d 609, 611 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).  But except for the necessity requirement, these factors are only aids in determining whether an implied easement existed.  See Olson v. Mullen, 244 Minn. 31, 40, 68 N.W.2d 640, 647 (1955).  To be “necessary,” an easement must be more than a mere convenience.  Clark v. Galaxy Apartments, 427 N.W.2d 723, 727 (Minn. App. 1988).  “The party asserting the easement has the burden of proving necessity.”  Id. at 726.    

            The court determines whether to grant an easement by necessity based on the conditions of the property at the time that the landlocked land was originally conveyed.  See Kleis v. Johnson, 354 N.W.2d 609, 611 (Minn. App. 1984).  Changes subsequent to the time of severance cannot serve as the basis for creating an easement by necessity.  See Olson, 244 Minn. at 68 N.W.2d at 647.  Courts have emphasized that the necessity must be in existence at the time of the conveyance.  See Clark, 427 N.W.2d at 726 (stating that “[t]he easement need not have been indispensable to be necessary; rather, a reasonable necessity at the time of severance is sufficient”).  Obstacles such as topography, houses, or trees, zoning ordinances, or the need for extensive paving may create conditions where an easement is necessary.  See Rosendahl, 408 N.W.2d at 611.

            Here, it is undisputed that the property at issue is not landlocked and that from the time of the severance in 1923, access to the property has been available via Birch Lane South.  Thus, because appellants cannot produce evidence that an easement was necessary when the property was conveyed, we conclude that the district court did not err in granting summary judgment for respondent on this issue.   

            2.         Prescriptive easement

            A prescriptive easement is based on prior continuous use and grants a right to use the property of another.  See Romans v. Nadler, 217 Minn. 174, 181, 14 N.W.2d 482, 486-87 (1944).  As such, a prescriptive easement is a “servitude imposed upon corporeal property.”  Id.  A prescriptive easement grants only a right of use and does not carry with it title or a right of possession in the land itself.  Id. at 181, 14 N.W.2d at 487.  “The purpose of prescriptive easements has been to encourage the prompt resolution of disputes before evidence is destroyed or relevant events pass out of memory and thereby stabilize long-continued property uses.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).

            The elements of proof required to establish a prescriptive easement are the same as those necessary to establish adverse possession.  See Romans, 217 Minn. at 177, 14 N.W.2d at 485.  But users cannot obtain a prescriptive easement to public land even where adverse possession can be shown.  Heuer v. County of Aitkin, 645 N.W.2d 753, 757-58 (Minn. App. 2002) (holding that Minn. Stat. § 541.01 precludes adverse-possession claims to public lands and also precludes the acquisition of a prescriptive easement in public land). 

            In Heuer, we remanded to the district court to allow appellants to present evidence that they had established a prescriptive easement over two of the four disputed pieces of property before the respondent county took title to the two pieces of property.  Id. at 760.  And when the state takes title because of tax forfeiture, the prescriptive easement must be established prior to the tax assessment for which the property was forfeited.  Alvin v. Johnson, 241 Minn. 257, 267, 63 N.W.2d 22, 28 (1954).

            Here, the district court properly determined that the record contains no evidence establishing that appellants or their predecessors in interest obtained a prescriptive easement before the state assessed taxes for which the property was forfeited.  And because appellants did not meet their burden to show “actual, open, continuous, exclusive and hostile use,” the district court did not err in granting summary judgment in favor of respondent on appellants’ claim that they hold a prescriptive easement.

            3.         Public dedication

            To establish common law dedication, the plaintiff must show the property owner’s express or implied intent to devote land to public use and the public’s acceptance of that use.  Wojahn v. Johnson, 297 N.W.2d 298, 306-07 (Minn. 1980).  A dedication to public use may be implied from the circumstances of the individual case, but intent to dedicate must be shown.  Daugherty v. Sowers, 243 Minn. 572, 574-75, 68 N.W.2d 866, 868 (1955). 

            Here, respondent city obtained title from the state in 1989 to facilitate the installation of a public water main and to potentially allow for the future platting, subdivision, and conveyance of the adjacent properties.  In 1992, respondent received a request to maintain the alley as a public driving surface.  In 1993, respondent’s city council ordered a survey of the neighborhood and a meeting to determine the level of interest in possible public improvements; there was no consensus and no action taken.  In 1996, respondent held a meeting to address winter maintenance and safe access onto Highway 49.  At that time, some residents requested that respondent restrict access to the eastern portion of Dohm’s Alley, but respondent deferred plans until a large neighborhood improvement project could be programmed. 

            In 1999, respondent ordered a feasibility report for improvements, including Dohm’s Alley, and held a meeting to discuss the improvement goals.  In December 1999, respondent held a meeting to specifically discuss Dohm’s Alley; the majority of residents present supported respondent’s plan to close Dohm’s Alley.  In early 2000, respondent accepted the feasibility report and held informational meetings to discuss improvements to South Birch Lane and Dohm’s Alley.  The project was complete by September 2000. 

            Thus, rather than an implied dedication, the record shows that within 11 years after acquiring title, respondent closed the eastern portion of Dohm’s Alley with berms, wood barrier posts, and seeding to prevent public access.  Therefore, we conclude that the district court did not err in granting summary judgment in favor of respondent on appellants’ claim of public dedication.



            “Mandamus is an extraordinary legal remedy awarded, not as a matter of right, but in the exercise of sound judicial discretion and upon equitable principles.”  State ex rel. Hennepin County Welfare Bd. v. Fitzsimmons, 239 Minn. 407, 422, 58 N.W.2d 882, 891 (1953).  On appeal, we will reverse a district court’s order on an application for mandamus relief “only when there is no evidence reasonably tending to sustain the trial court’s findings.”  Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn. App. 1995).

            Although a local governing body generally has broad discretion in a zoning matter, when it considers a building permit, it acts in a quasi-judicial capacity and is subject to more extensive judicial review.  City of Barnum v. County of Carlton, 394 N.W.2d 246, 248 (Minn. App. 1986), review denied (Minn. Dec. 17, 1986).  “The standard of review in all zoning matters is whether the zoning authority’s action was reasonable.”  Id. If a court finds that the city’s action was arbitrary or capricious, a mandamus action is proper to compel the city to grant the building permit.  See Chase v. City of Minneapolis, 401 N.W.2d 408, 412 (Minn. App. 1987).

            Because appellants have not shown that they have legal access to their proposed garage, they have failed to meet all of respondent’s applicable zoning ordinances.  Therefore, we cannot say respondent acted unreasonably, arbitrarily, or capriciously in denying appellants’ building permit application.  And because evidence in the record tends to reasonably support the district court’s findings, denial of mandamus relief was proper.  Finally, because appellants’ claims fail on the merits, we do not reach respondent’s argument that the claims are barred by the statute of limitations in Minn. Stat. § 284.28 (2004).


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