This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Michael C. Rollins,
Rodney W. Gulbro, et al.,
Ivan R. Krueger, et al.,
John P. Coleman,
Erwin A. Lingitz,
Frankie D. Lingitz,
Cass County District Court
File No. 11-CX-99-000264
Wilbert E. Hendricks, Hendricks Law Firm,
Michael T. Milligan, Heidi N. Thoennes, Quinlivan & Hughes, P.A., P.O. Box 1008, St. Cloud, MN 56302 (for Wilbert E. Hendricks)
Timothy J. Grande, Frederick W. Vogt, Mackall, Crounse & Moore, PLC, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402-2859 (for respondents)
Erwin A. Lingitz, Frankie D. Lingitz,
Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Parker, Judge.
Appellant challenges the district court’s order denying appellant’s claim that he is legally entitled to access across respondents’ land because (1) the land was dedicated to public use; or (2) he, along with other owners, holds an easement across the land. On notice of review, respondents challenge (1) the district court’s decision to refer appellant’s attorney to the Lawyer’s Professional Responsibility Board rather than order monetary sanctions; and (2) the district court’s denial of damages for appellant’s destruction of respondents’ trees. We affirm.
The parties dispute appellant’s entitlement to legal access to a trail, which we refer to as the Disputed Trail. The Disputed Trail branches off of a trail, which we refer to as the Dedicated Trail, that the original owner platted across Bear Island Woods. The purpose of the Dedicated Trail is to provide owners of western lots on the island with access to the eastern side of the island when boating because access to the western side of the island can be treacherous during inclement weather. After the Dedicated Trail was platted in 1970, the original owner constructed the Disputed Trail, which is about the width of a Bobcat blade. The original owner created the Disputed Trail near the eastern end of the Dedicated Trail, on his own land, because of the land’s topography. Therefore, two trails exist at the eastern side of the island. After respondents Kruegers purchased the lot over which the Disputed Trail runs, they granted individual permission to most of the western lot owners to use the Disputed Trail. A dispute arose between appellant and the Kruegers as to appellant’s right of access to the Disputed Trail.
it is undisputed that appellant
does not own a deed to the Disputed Trail, appellant must show entitlement to
legal access under one of the following theories: (1) entitlement by dedication; or (2)
entitlement by easement. It is not the
province of the appellate courts “to reconcile conflicting evidence. On appeal, a trial court’s findings of fact
are given great deference, and shall not be set aside unless clearly erroneous.
. . . If there is reasonable evidence to
support the trial court’s findings of fact, a reviewing court” will not disturb
those findings. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (
A. Did the original owner make a statutory dedication of the Disputed Trail?
challenges the district court’s findings and conclusions that the original owner
never dedicated the Disputed Trail.
Appellant argues that the original owner made either a statutory or a
common law dedication. A statutory
dedication is one made under statute, and the dedication must be executed and
recorded as prescribed by statute.
Plats of land may be made in accordance with the provisions of this chapter, and, when so made and recorded, every donation to the public or any person or corporation noted thereon shall operate to convey the fee of all land so donated, for the uses and purposes named or intended, with the same effect, upon the donor and the donor’s heirs, and in favor of the donee, as though such land were conveyed by warranty deed. Land donated for any public use in any municipality shall be held in the corporate name in trust for the purposes set forth or intended.
intention to make a statutory dedication must be clearly expressed upon the
face of the plat. . . .” Menage v. City of
Here, the original owner did plat a Dedicated Trail so that the owners of the western plots of the island would have access to the eastern side of the island during inclement weather or emergencies. However, the Disputed Trail is not platted. Because only the Dedicated Trail has been platted, only it is statutorily dedicated under section 505.01. The district court did not err in finding that the original owner did not make a statutory dedication of the Disputed Trail.
B. Did the original owner make a common law dedication of the Disputed Trail?
common law dedication is accomplished other than by a plat executed and
recorded as required by statute. Flynn v. Beisel, 257
cites Flynn to support his argument
that the original owner revoked his original dedication (the Dedicated Trail)
and made a common law dedication of the Disputed Trail which was accepted by
the dedicatees, including the Kruegers.
In Flynn, the Minnesota
Supreme Court considered whether a common law dedication had been made when the
original owner platted land surrounding
The supreme court
noted that “acts and visible conduct on the part of the owner which
unequivocally and convincingly carry with them a plain intent to dedicate a
road to public use will prevail over the owner’s subsequent denial of such
intent. . . .”
Appellant also argues that the original owner’s intent to dedicate the Disputed Trail was established in his answer to the amended complaint. Appellant contends that the original owner admitted in his answer that he intended to dedicate the platted trail, the Dedicated Trail, and also to dedicate a trail that deviated from the Dedicated Trail for access to the island. Appellant also contends that the original owner admitted that he constructed a trail for foot traffic, that the dedication was a 40-foot easement but not a roadway, and that the Disputed Trail was an appurtenant easement. Based on these admissions, appellant argues that the district court clearly erred in finding that the original owner did not make a common law dedication of the Disputed Trail.
Respondents argue that from the evidence, the original owner never clearly intended to dedicate the Disputed Trail because he sold the lots on which the Disputed Trail runs to respondents Kruegers in fee simple by warranty deed. Additionally, the original owner included a notarized statement by the original owner that respondent Lingitz, former owner of appellant Rollins’s western lots, owned no interest in the lots on which the Disputed Trail runs. Second, several witnesses testified that while the original owner told several potential purchasers and owners of island lots about the Disputed Trail, he also noted that the Disputed Trail was on his land, which was eventually sold to the Kruegers by warranty deed, despite any claim of dedication of the Disputed Trail to the public. Third, the original owner platted the Dedicated Trail, which is evidence that he did not intend that the Disputed Trail be dedicated to the public.
While Flynn is persuasive, we conclude that the intent to create a common law dedication cannot be inferred from the original owner’s actions. Evidence in the record supports that the original owner intended that the Disputed Trail serve as an emergency trail during inclement weather. He informed several witnesses on separate occasions that the Disputed Trail ran over his land, he sold the land over which the Disputed Trail runs in fee simple by warranty deed to the Kruegers, and he also signed a sworn statement that the former owners of appellant’s land owned no interest in the land over which the Disputed Trail runs. The district court considered the original owner’s answer, which is somewhat inconsistent in how it refers to the Dedicated and Disputed Trails, and concluded that no common law dedication occurred. We conclude that the district court’s finding is not clearly erroneous on this record.
A. Easement by Implication/Easement by Necessity
easement by necessity falls within the general category of implied easements,
which arise only in specific fact situations.”
Niehaus v. City of
court determines whether to grant an easement by necessity based on the
conditions of the property at the time that landlocked land was originally
conveyed. See Kleis v. Johnson, 354 N.W.2d 609, 611 (
Here, appellant has not established that the easement is necessary to the beneficial enjoyment of his land. Evidence in the record suggests that access to the western part of the island, while more treacherous, can be used, and is used by several landowners. The district court found that western lot owner Strand used both sides of the island for access, and installed a roller dock near his lot on the west side. The district court also found that owner Gulbro accessed his western lots primarily from the west, and had a dock and boat lift installed on the west side at one time. And other western landowners also testified that they used the western side of the island for access, including the Lingitzes, former owners of appellant’s land. Based on this evidence, appellant cannot establish that an easement by implication is necessary for the beneficial enjoyment of his land, since it appears from the record that the western side of the island is generally accessible.
Furthermore, if appellant encountered inclement weather, it is clear that he could use the Dedicated Trail from the eastern access to walk to his property on the western side. While not ideal, appellant’s safety is not endangered by using the Dedicated Trail, and keeping abreast of weather developments that could possibly preclude use of the western access is not so onerous as to necessitate an easement through another’s property.
B. Easement by Prescription
next argues that he has a prescriptive easement to the Disputed Trail. A prescriptive easement is based on prior
continuous use and grants a right to use the property of another. Romans
v. Nadler, 217
elements of proof required to establish a prescriptive easement are the same as
those necessary to establish adverse possession. See
It must appear from the nature and circumstances of the possession that it is hostile and adverse, so that the owner may be informed of it and that he may determine whether the acts consist of mere trespass or assertion of adverse title, lest he be misled into acquiescence in what he might reasonably suppose to be a mere trespass, when he would not acquiesce in the assertion of rights adverse to his title.
and sporadic trespasses for temporary purposes, because they do not indicate
permanent occupation and appropriation of land, do not satisfy the requirements
of hostility and continuity, and do not constitute adverse possession, even
where they continue throughout the statutory period.
Here, appellant’s claim fails because he cannot show the elements of adverse possession. First, appellant cannot show hostility because, for at least his initial use of the Disputed Trail, he requested permission in writing from the Kruegers to bring a Bobcat on the island over the Disputed Trail and leave a pontoon on the eastern access. The Kruegers responded by granting appellant permission to bring a Bobcat across the Disputed Trail once. The Kruegers also suggested that appellant use the Bobcat to improve the Dedicated Trail to extend east to the eastern access, but specifically stated appellant did not have permission to remove the Bobcat across the Disputed Trail.
Appellant argues that the Kruegers acquiesced to other lot owners’ use of the Disputed Trail until 1998. But evidence in the record establishes that the Kruegers informed other lot owners that the Kruegers did not acquiesce to any use of the Disputed Trail except for emergency use as early as 1984. In 1984, the Kruegers placed “no trespassing” signs on the west side of the Disputed Trail where it met the Dedicated Trail. The signs disappeared, and the Kruegers periodically replaced them. In 1987, the Kruegers placed a “no trespassing” sign at the eastern landing near the end of the Disputed Trail. In 1990, the Kruegers told another landowner to desist clearing brush on the Disputed Trail because the Kruegers wanted it to return to its natural state and gave the landowner permission to use the Disputed Trail in stormy weather. From the record, appellant cannot show that he acted adversely to the Kruegers.
appellant must show that his use was continuous. “The possession of successive occupants, if
there is privity between them, may be tacked to make adverse possession for the
requisite period.” Fredericksen v. Henke, 167
Here, appellant purchased lots 8, 12, 13, and 14 in 1997 from respondents Erwin and Frankie Lingitz. The Lingitzes purchased lots 8, 12, 13, and 14 from the original owner in 1977. Appellant’s initial complaint was filed on February 23, 1999. Therefore, in order to show continuous adverse use of the Disputed Trail, appellant must show that the Lingitzes also used the Disputed Trail adversely from at least early 1984. But in 1983 or 1984, the Lingitzes met the Kruegers and discussed the access to the east side of the island. The Kruegers gave the Lingitzes permission to use the Disputed Trail when the weather was bad, or when they otherwise needed to use it. Therefore, the Lingitzes’ use was permissive, and appellant cannot show an adverse use of the Disputed Trail for the statutory 15-year period. Because appellant cannot show all the elements required to establish a prescriptive easement, the district court did not clearly err in denying appellant’s claim of a prescriptive easement.
Kruegers also bring a notice of review challenging the district court’s
decision to deny rule 11 sanctions against appellant’s attorney Hendricks. Instead, the district court referred the
matter to the Lawyers Professional Responsibility Board. A rule 11 sanction is reviewed for abuse of
discretion. Leonard v. Nw. Airlines, Inc., 605 N.W.2d 425, 432 (
The Kruegers argue
that “[i]f Minn. R. Civ. P. 11 has been violated, sanctions are mandatory,”
citing Gibson v. Coldwell Banker Burnet,
659 N.W.2d 782, 790 (
The Kruegers contend that they were personally harmed by several egregious violations of ethical standards that appellant’s attorney Hendricks committed including joining numerous additional plaintiffs without notifying them that they were parties to the action, causing the Kruegers to prepare to defend against nearly a dozen plaintiffs when only appellant Rollins participated significantly in the trial; improperly contacting a party and witness, Dr. Lingitz, to secure a fraudulent affidavit from her, and filing a fourth amended complaint after trial was over.
The district court indicated in its order that it considered financial sanctions, but concluded that referral to the Lawyers Professional Responsibility Board would be more likely to deter future undesired practices. And appellant’s attorney argues that motions for sanctions brought after the conclusion of trial, as the Kruegers’ motion was, are precluded. Finally, rule 11 focuses on deterring future inappropriate practices rather than punishing the offending attorney for past acts. Here, we conclude that the district court’s decision to refer the matter to the Lawyers Professional Responsibility Board for investigation was not only within the district court’s discretion under rule 11, but was the essence of an exercise of deliberative discretion, because it shows careful consideration of the type of conduct alleged and an appropriate remedy for that conduct.
Kruegers also appeal the district court’s denial of damages for costs to
replace trees it found that appellant Rollins destroyed without the Kruegers’
permission. The measure of damages is a
legal issue reviewed de novo. Magnuson v. Cossette, 707 N.W.2d 738,
“It has long been
the rule in this state that the measure of damages for destruction of trees and
shrubbery is the difference between the value of the land before and after the
damage has been inflicted.” Baillon v. Carl Bolander & Sons Co.,
Here, the district court found that the trees were “not large, not ornamental, not long-standing, and served to prevent erosion and to close off the [Disputed Trail.]” For that reason, the district court found that the proper measure of damages was diminution of land value and that because there was no difference in the value of the land after the trees were destroyed, no damages should be awarded. Appellant points out that the district court’s findings were ambiguous in that it found that two to five trees were destroyed, although two of three experts testified that they could not find destroyed trees matching the Kruegers’ descriptions. Appellant also contends that the Kruegers offered no evidence that the value of the land was diminished.
While the loss of trees on land is unfortunate, the Kruegers themselves described the destroyed trees as sight and sound barriers, but did not offer other evidence that the trees were more like the ornamental trees in Rector than the functional trees in Baillon. Therefore, the district court did not err in using the “diminution in land value” measure of damages when it denied an award to the Kruegers.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Although other appellants are joined in this action, appellant Rollins pursued his claims almost wholly on his own. Furthermore, little evidence in the record is probative of any of the other plaintiffs’ potential easement claims. Therefore, we refer to “appellant” rather than “appellants.”
 Although other joined appellants may be able to show adverse use for the 15-year statutory period, almost no evidence of adverse or nonpermissive use of the Disputed Trial was presented at trial. Therefore, on this record, we do not address the other joined appellants’ potential claims.
 Respondents Lingitzes also filed a notice of review but did not file a brief so their appeal has been dismissed. Order dated July 11, 2005 (A06-248).