This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Michael Wasiluk, et al.,
City of Shoreview,
Filed July 26, 2005
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
D E C I S I O N
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
by Cooper v. French, 460 N.W.2d 2, 4 (
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
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,
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 (
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
The elements of proof required to
establish a prescriptive easement are the same as those necessary to establish
adverse possession. See Romans, 217
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.
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 (
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
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.
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.
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.