This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
James R. Harding, Jr.,
Ronald A. Pederson, et al.,
Lance A. VanWyhe,
Arlette M. VanWyhe,
Mark W. Peabody,
Doris J. Williams,
Northwoods Bank of Minnesota,
State Bank of Park Rapids,
and the unknown heirs of the above-described
persons, and all other unknown persons claiming
any right, title, estate, interest, or lien in the
real estate described in the complaint,
Filed June 5, 2007
Hubbard County District Court
File No. C6-04-1028
Mark E. Greene, Phaedra J. Howard, Standke, Greene & Greenstein, Ltd., 17717 Highway 7, Minnetonka, MN 55345 (for appellant)
James B. Wallace, Wallace & Tiffany, 201 East First Street, P.O. Box 27, Park Rapids, MN 56470 (for respondents Ronald A. Pederson, et al.)
Lance A. VanWyhe, Arlette M. VanWyhe, 19617 End of the Day Drive, Park Rapids, MN 56470 (pro se respondents)
Mark Peabody, P.O. Box 18733, West St. Paul, MN 55118-0733 (pro se respondent)
Doris J. Williams, Scott Williams, 19616 End of the Day Drive, Park Rapids, MN 56470 (pro se respondents)
Northwoods Bank of Minnesota, 1202 East First Street, P.O. Box 112, Park Rapids, MN 56470 (respondent)
State Bank of Park Rapids, P.O. Box 31, Park Rapids, MN 56470 (respondent)
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s construction of an easement over his property. Because we conclude that the text of the grant does not support the district court’s construction, we reverse and remand.
In the 1970s, Welle’s Channel Shores, a 22-acre parcel near Park Rapids, was subdivided into 19 lots; six of the 19 lots are riparian and are located on the southern shore of Fish Hook Lake. A “unique feature” of the parcel is two channels that branch off the lake and run roughly parallel to each other; the channels are located in lots 11, 12, and 13.
When the property was subdivided, the original property owners granted two easements over the western and eastern portions of lot 12 for the purpose of giving nonriparian landowners access to Fish Hook Lake. In 1984, Paul Stendahl purchased lot 12 from the original property owners subject to
easements of record over and across the West 33 feet thereof of Lot 12 except that portion of Lot 12 lying West of the channel (as the same now exists); and subject to easements to be granted to third parties by grantors herein over and across the West 33 feet of Lot 12 except that portion of Lot 12 lying West of the channel (as the same now exists).
During Stendahl’s ownership of the property, 12 easements were granted to the nonriparian lots. Three descriptions were used in the grants, although the most common description of the easement, and the one ultimately adopted by the district court and not challenged on appeal, was “a non-exclusive easement for ingress and egress only over and across the West 33 feet of lot 12 of Welle’s Channel Shores except that portion of lot 12 lying west of the Channel (as the same now exists).”
Stendahl sold to a neighbor the small portion of lot 12 that lies west of the western channel. And on July 25, 2003, appellant James R. Harding Jr. purchased from Stendahl that portion of lot 12 that Stendahl retained, as well as two adjacent lots. A title opinion by appellant’s attorney indicated that there were questions regarding the description of the easement and recommended that a land surveyor be consulted. The surveyor located the west 33 feet of lot 12 and identified a six-foot “gap” in the easement that left it inaccessible from the public road. Figure 1 is a portion of a trial exhibit and shows the map that the surveyor prepared of appellant’s property.
The gap was the result of the 39-foot-wide rectangular segment of lot 12 that juts out of the southwest corner of the main property, as shown in Figure 1, to allow access to the road: because the west 33 feet of this 39-foot-wide segment does not reach the western boundary of the main portion of lot 12, a “gap” exists. The description of the easement in appellant’s deed was re-written to eliminate this gap, and the deed now describes the easement as beginning at the road, running along the northern end of the rectangular segment of the property, and proceeding northerly along the property line until it reaches the southern end of the western channel, where the easement terminates, again as shown in Figure 1.
Appellant brought a declaratory-judgment action against the other landowners in the subdivision, seeking a declaration that the description of the easement in his deed is accurate. A trial was held before the district court, at which appellant, Stendahl, the land surveyor, and several of the other property owners testified.
After the trial, the district court determined that the text of the easement was ambiguous, noting that because of the shape of lot 12, the “west 33 feet of lot 12 does not create a continuous line” and that the description of the easement is “inartfully drawn and cannot be located.” Relying on the fact that the purpose of the easement was to provide nonriparian landowners access to the lake, the conduct of the parties, and “a measure of common sense,” the district court eliminated the six-foot gap in the easement, as does appellant’s deed, and then construed the easement to begin at the public road, move east along northern boundary of the rectangular segment of lot 12, turn north and run along the western boundary of lot 12, and then to extend along the eastern shore of the western channel and the northern boundary of the property before terminating at the eastern boundary of lot 12. The district court ordered the parties to divide the cost of a land surveyor to prepare a description of the easement as the district court had construed it. This appeal follows.
D E C I S I O N
First, appellant has moved to strike respondents’ appendix, arguing that the map on page A1 of respondents’ appendix is not a part of the record and that the rest of the appendix is duplicative of the material already in appellant’s appendix. Respondents argue that although the map on page A1, which is an exhibit to an affidavit, has been altered by highlighting the border of lot 12, it was altered for “illustrative purposes” only and that the remainder of their appendix is provided for “convenience of the Appellate Court.”
“The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ. App. P. 110.01. This court may not base its decision on matters outside the record, and we may not consider materials not produced and received in evidence below. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). Minnesota Rule of Civil Appellate Procedure 130.02 limits a respondent’s appendix to those materials that were omitted from the appellant’s appendix but are permitted under rule 130.01, which governs the contents of an appellant’s appendix.
The highlighting on the map on page A1 is not a part of the exhibit below, and it thus cannot be a part of respondents’ appendix. Further, the unaltered map, like the remainder of respondents’ appendix, is included in appellant’s appendix. Because the plain text of rule 130.02 does not permit for the duplication of appellant’s appendix, even for “convenience of the Appellate Court,” we grant appellant’s motion to strike respondents’ appendix.
Appellant argues that the district court created a “new and substantially different servitude” by construing the easement to extend the entire length of the eastern shore of the western channel and then along the northern boundary of appellant’s property. Appellant argues first that the language of the grant is not ambiguous and that, therefore, the district court erred in admitting extrinsic evidence. Whether an easement is ambiguous is a question of law, which we review de novo. Mollico v. Mollico, 628 N.W.2d 637, 641 (Minn. App. 2001).
The extent of an easement created by an express grant depends entirely on the terms of the grant. Highway 7 Embers, Inc. v. Nw. Nat’l Bank, 256 N.W.2d 271, 275 (Minn. 1977). If the terms of the grant are not ambiguous, extrinsic evidence may not be considered and the express language of the grant must be applied; but if the terms are ambiguous, extrinsic evidence may be considered to determine the extent and scope of the easement. Bergh & Mission Farms, Inc. v. Great Lakes Transmission Co., 565 N.W.2d 23, 26 (Minn. 1997). A grant is ambiguous if it is reasonably subject to more than one interpretation. Mollico, 628 N.W.2d at 641.
Appellant’s argument that the grant is unambiguous is not persuasive. First, appellant expressly argued to the district court that the grant was ambiguous. And generally, a party cannot change its legal theory on appeal. Thiele, 425 N.W.2d at 582. Indeed, appellant himself offered extrinsic evidence at trial in the form of Stendahl’s and the surveyor’s testimony. Further, despite appellant’s argument, he concedes that there is a “defect” in the grant—the six-foot gap separating the easement from the public road. Although appellant argues that this gap is a latent defect in the grant, the admission of extrinsic evidence is not dependent on whether the ambiguity is patent or latent. See First Nat’l Bank of Detroit v. Nw. Trust Co., 181 Minn. 115, 119, 231 N.W. 790, 792 (1930) (noting that the “old distinction between patent and latent ambiguities” may be disregarded). Thus, the district court did not err in admitting extrinsic evidence.
But even though the description of the easement is ambiguous, we conclude that the district court’s construction of the easement is in error. When construing a grant, a court seeks to effectuate the intent of the parties. Ingelson v. Olson, 199 Minn. 422, 426, 272 N.W. 270, 273 (1937). If an easement is ambiguous, the court may use extrinsic evidence to determine what the grantor meant to convey. Mollico, 628 N.W.2d at 640-41. The district court’s findings of fact are entitled to deference and will not be overturned unless clearly erroneous. Minn. R. Civ. P. 52.01. But “[i]t is well settled that the extent of an easement should not be enlarged by legal construction beyond the objects originally contemplated or expressly agreed upon by the parties.” Bergh, 565 N.W.2d at 26 (quoting Minneapolis Athletic Club v. Cohler, 287 Minn. 254, 258, 177 N.W.2d 786, 789-90 (1970)).
The district court construed the easement to extend northeasterly along the shore of the western channel and then along the northern boundary of appellant’s property, terminating at the eastern boundary of lot 12. But this construction is not supported by the text of the grant. As the district court found, the most common description of the easement is the “West 33 feet thereof of Lot 12 except that portion of Lot 12 lying West of the channel.” As Figure 1 shows, a small portion of lot 12 lies west of the channel, and that portion is not accessible from the rest of the lot. Granting an easement over that portion of lot 12 would result in an absurdity: it would create an easement that the nonriparian landowners could not access. The clause “except that portion of Lot 12 lying West of the channel” recognizes this fact, and its effect is to terminate the easement at the southern end of the western channel. Further, the grant stipulates that the easement runs over the west 33 feet of lot 12, not the 33 feet abutting the channel on lot 12. Thus, there is nothing in the grant suggesting an easement along the eastern shore of the western channel or the northern boundary of appellant’s property.
Finally, the district court found, and it is not disputed, that the purpose of this easement is to allow nonriparian landowners access to Fish Hook Lake. An easement that terminates at the southern end of the western channel allows nonriparian landowners access to the lake. And to construe the easement to run along the shoreline of the western channel and then the northern boundary of appellant’s property extends the easement beyond its object. See Bergh, 565 N.W.2d at 26 (noting that easements should not be construed beyond the object expressly agreed to by the parties to the grant). Thus, by the terms of the grant, the easement runs over the west 33 feet of lot 12 until it reaches the southern end of the western channel, where, because the easement does not extend to “that portion of Lot 12 lying West of the channel,” it terminates.
Appellant argues also that the district court erred when it ordered the parties to hire a land surveyor to prepare a description of the easement based on its construction of the grant. Appellant’s deed describes the easement as running from the public road to the southern end of the western channel. Because we conclude that this is an accurate description of the easement, we need not reach the issue of hiring a surveyor. We remand for the entry of judgment for appellant.
Reversed and remanded; motion granted.
 The district court determined that the eastern easement was abandoned, and that determination is not contested on this appeal.
 Although we recognize that 12 easements were granted, because the district court adopted only one description of the easements, we will refer to the easements in the singular for convenience.
 The parties do not argue, and nothing in the record suggests, that the locations of the channels have changed since the easement was granted.