This opinion will be unpublished and

may not be cited except as provided by

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






Michael J. Bussa,





Mark B. Hanna, et al.,



Filed May 23, 2006


Worke, Judge


St. Louis County District Court

File No. C3-04-601036


Malcolm B. Davy, 722 U.S. Bank Place, 130 West Superior Street, Duluth, MN  55802 (for respondent)


Bryan N. Anderson, 4401 East Superior Street, Duluth, MN  55804 (for appellants)


            Considered and decided by Toussaint, Chief Judge; Hudson, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from the district court’s grant of an easement in favor of respondent, appellants argue that respondent failed to demonstrate the requirements for an implied easement because he did not show use in a manner that would put appellants on notice of respondent’s use and necessity; and that respondent is not entitled to reformation of his deed to include an easement when neither the evidence nor the record supports determinations that the parties’ actual agreement included transfer of an easement and the existence of the required mistake.  We affirm.


            Appellants argue that the district court erred in finding that respondent is entitled to the driveway/alley easement and reformation of his deed.  “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of  the witnesses.”  Minn. R. Civ. P. 52.01. 

Implied Easement

            The elements of an implied easement are: “(1) a separation of title; (2) the use 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).  With the exception of the necessity requirement, these factors are only aids in determining whether an implied easement exists.  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).  But “[t]he easement need not have been indispensable to be necessary; rather, a reasonable necessity at the time of severance is sufficient.”  Id. at 726.  “The party asserting the easement has the burden of proving necessity.”  Id. “Obstacles such as topography, houses, trees, zoning ordinances, or the need for extensive paving, may create conditions where an easement is necessary.”  Magnuson v. Cossette, 707 N.W.2d 738, 745 (Minn. App. 2006). 

            In 1986, respondent Michael J. Bussa purchased the property situated on Lots 20, 18, and one-half of 16 (Bussa homestead) on the corner of Mississippi Avenue and Lyons Street in Duluth, Minnesota.  Access to the Bussa homestead was expressly included in a driveway/alley easement created in 1978 by the original owners of the property, Thomas and Marion Mahai.  In 1989, respondent purchased the vacant lot between his home and the Mahais; specifically, Lots 22 and the northern 25 feet of Lot 24 (Bussa parcel).  While these lots were not included in the easement, respondent used the Bussa parcel as additional yard space and accessed it using the express easement for the Bussa homestead.  Based on discussions at the time of sale, the original owner understood that respondent intended to keep the Bussa parcel undeveloped and ultimately transfer it together with the Bussa homestead.  In December 1998, appellants Mark and Leslie Hanna purchased the Mahais’ home situated on Lots 28, 26, and the remaining portion of Lot 24.  Appellants were aware of the easement when they purchased the property.  In April 1999, respondent sold the Bussa homestead to a third party but retained ownership of the Bussa parcel.  When respondent offered the Bussa parcel for sale in 2003, appellants informed respondent that the Bussa parcel did not have the benefit of the easement.

            Separation of title occurred in 1989 when the Mahais sold the Bussa parcel to respondent.  With the Mahais’ knowledge and approval, respondent continuously used the express easement for the Bussa homestead to access the Bussa parcel.  Additionally, the original easement was used continuously since 1978.  Therefore, respondent’s access to the Bussa parcel via the easement was long, continued and apparent, which shows that the easement was intended to be permanent.  “A practical interpretation by interested parties that an easement exists supports an inference that the easement is one of legal right.” Romanchuk, 215 Minn. at 164, 9 N.W.2d at 426.  Finally, a professional surveyor testified that adding driveway access from the Bussa parcel to Mississippi Avenue would be expensive and dangerous due to the steep slope.  Therefore, access to the Bussa parcel over the easement is necessary and essential to respondent’s beneficial enjoyment of the property.  Because the record shows that elements for of an implied easement exist, the district court did not clearly err in finding that respondent was entitled to an easement benefiting the Bussa parcel.

Reformation of Deed

            “The evidence supporting reformation of a written instrument, including a deed, must be consistent, clear, unequivocal, and convincing.”  Theros v. Phillips, 256 N.W.2d 852, 857 (Minn. 1977).  In order to reform the deed, respondent must show: “1) a valid agreement sufficiently expressing the real intention of the parties to the deed, 2) a written contract which fails to express that intention, and, 3) mutual mistake or unilateral mistake coupled with fraud or inequitable conduct.”  Kleis v. Johnson, 354 N.W.2d 609, 612 (Minn. App. 1984).  The district court found that while respondent believed that he was purchasing the Bussa parcel with the benefit of the easement, the deed between the parties did not express the parties’ intention as to an easement.  The district court further found that as a result of a mutual mistake between respondent and the Mahais, the proper remedy was reformation of deed and that denial of an easement by implication would result in an illogical and unfair result.  Because the elements of an implied easement exist and reformation of the deed is a practical and just remedy, it was not clearly erroneous for the district court to order reformation of the deed.