This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




Jack Grabow,et al.,

Charles C. Cleland,intervenor,


James C. Weaver, et al.,

Daniel J. Kinsella,et al.,


Filed October 2, 2007

Affirmed in part, reversed in part, and remanded

Klaphake, Judge


Crow Wing County District Court

File No. C3-04-409


Lonny D. Thomas, Jonathan T. Trexler, Thomas & Associates, P.A., 34354 County Road 3, P.O. Box 430, Cross Lake, MN  56442 (for respondents Grabow, et al., and Cleland)


Thomas P. Malone, Karen K. Kurth, Barna Guzy & Steffen, Ltd., 200 Coon Rapids Boulevard, 400 Northtown Financial Plaza, Minneapolis, MN  55433 (for appellants)


            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Muehlberg, Judge.*


U N P U B L I S H E D   O P I N I O N


            The parties in this case own property located along the southeast shore of Pelican Lake in Crow Wing County.  Respondents John and Nellie Weaver, along with Jack and Gloria Grabow, brought this declaratory judgment against appellants James and Melanie Weaver and others who were dismissed from this action prior to trial.  Respondents sought to protect their easement rights over a historic road that crosses the parties’ properties; this dispute was precipitated by appellants’ decision to reroute the road to the southern edge of their property, away from their buildings.  Respondent Charles Cleland, who owns property to the northeast of appellants, intervened, initially claiming that he is entitled to a prescriptive easement over the historic road and later revising his complaint to include a claim that he also has a “deeded easement”[1] over the road. 

            In August 2005, the district court granted summary judgment to the Grabows and reformed their 1974 deed to include an easement over the historic road; appellants do not challenge this determination, and the Grabows are not part of this appeal.  But the district court denied summary judgment to respondents and to Cleland, determining that genuine issues of fact existed as to their claims.

            Following a three-day trial, the court ruled that the new road constructed by appellants was not a “comparable alternative” to the historic road and that respondents continued to hold an easement over the historic road based on the language of a 1977 deed.  The court also found that Cleland and his predecessor-in-interest had continuous possession of an “unrestricted deeded easement” over the historic road, which served to overcome the presumption of abandonment under the Marketable Title Act.  See Minn. Stat. § 541.023, subd. 1 (2004).

            This appeal followed the district court’s denial of appellants’ motion for amended findings or a new trial.[2]  Because the district court did not clearly err in finding that appellants’ new road was not a “comparable alternative” to the historic road, as required by the language of the 1977 deed, we affirm on that issue.  But because the record fails to establish Cleland’s claim to an “unrestricted deeded easement,” the court erred in granting such an easement; its decision on that issue is reversed.  And because the court failed to make any findings on the scope of Cleland’s prescriptive easement, if any, we remand to the district court on that issue.


            After a trial without a jury, we must determine whether the district court’s findings are clearly erroneous and whether the court erred in its conclusions of law.  Powell v. MVE Holdings, Inc., 626 N.W.2d 451, 457 (Minn. App. 2001), review denied (Minn. July 24, 2001). 


            Appellants’ claim to the historic road is based on the language of a 1977 warranty deed.  The properties owned by appellants and respondents were originally part of a larger parcel of land that the Weavers, who are brothers, purchased in 1968.  The parcel was held in the name of appellants for nine years, while the parties negotiated the division of the parcel.  The negotiations involved a number of issues, including easement locations, boundary lines of the individual pieces of property, and rights of first refusal.

            In 1977, appellants executed a warranty deed to respondents.  The deed granted an easement over appellants’ parcel in favor of respondents and reserved an easement over respondents’ parcel in favor of appellants.  The easement language allowed either party to move the easement if certain conditions were satisfied, including the condition that the alternative easement was “comparable.”

            Appellants raise a number of issues involving the district court’s determination that the new road is not a “comparable alternative” to the historic road.  A number of those issues revolve around the district court’s decision to consider the testimony of respondents’ expert, a professional engineer who compared the quality of the historic road with that of the new road.  We will not disturb a district court’s decision to admit an expert’s testimony absent a showing that the court abused its sound discretion.  See Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977).

            In rejecting appellants’ objections to the expert’s testimony, the district court reasoned that because the term “comparable” is ambiguous, it needed to determine the meaning given that term by the parties and “apply that meaning to the historic easement and the proposed new easement to determine whether the proposed new easement is, in fact, ‘comparable’ to the historic easement.”  The court concluded that the “testimony and opinion of [the expert] is relevant to the Court’s application of [the] parties’ intended meaning of the term ‘comparable’ to the proposed new road and will assist the Court in that application.”  See Minn. R. Evid. 401 (definition of “relevant evidence”), 702 (“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”).

            Appellants assert that the district court erroneously relied upon circumstances not contemplated or expressly agreed to by the parties when it considered the testimony of respondents’ expert.  See Block v. Sexton, 577 N.W.2d 521, 525-26 (Minn. App. 1998) (when grant language is ambiguous, extent of easement depends entirely on construction of grant’s terms, and document is controlling); see also Highway 7 Embers v. Nw. Nat’l Bank, 256 N.W.2d 271, 275 (Minn. 1977).  But when the language is ambiguous, as here, the court is not limited to the four corners of the document and may consider extrinsic evidence to determine the extent and scope of the easement.  See Bergh & Mission Farms, Inc. v. Great Lakes Transmission Co., 565 N.W.2d 23, 26 (Minn. 1997).

            Appellants also argue that the testimony of respondents’ expert should have been excluded under the parol evidence rule.  As noted by respondents, the parol evidence rule does not preclude consideration of facts arising after the formation of a contract that are relevant to performance or breach; rather, the rule excludes consideration of evidence of “prior or contemporaneous utterances or writings” that conflict with the written contract or add terms to a fully integrated contract.  Ortendahl v. Bergmann, 343 N.W.2d 309, 312 (Minn. App. 1984) (quotation omitted).

            Here, the expert’s testimony was not introduced to prove the parties’ pre-contract negotiations or to prove course of dealing.  His testimony was offered to assist the district court by comparing the two roads based on a number of different criteria.  The court considered the expert’s testimony, the parties’ testimony and correspondence regarding their understanding of the easement, and the parties’ testimony regarding their own comparisons of the existing, historic road and the newly constructed road.  We conclude that the district court did not abuse its discretion in considering the expert’s testimony and in relying upon parts of that testimony to aid it in its decision regarding whether the new road was a “comparable alternative” to the historic road.


            As respondents aptly note, the “crux of this appeal is [appellants’] outright disagreement with the District Court’s factual findings that the New Road is not a comparable alternative to the Historical Road.”  “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 trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  If there is reasonable evidence to support the district court’s findings, this court will not disturb the decision of the district court on appeal.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999). 

            The district court issued a number of findings, including that the Weaver brothers intended the term “comparable” to “mean that any newly located easement would be equal to or better than the existing easement” and that any newly located easement did not have to be identical to the existing easement.  The court further found that the parties’ correspondence indicated that they “were concerned that the size and quality of any newly located easement be equal to the size and quality of the existing easement.”  The court then made a number of findings that compared the existing easement with the proposed easement in terms of width, construction materials, layout, visibility, and speeds of travel.  Based on these findings, the court concluded that the proposed new easement is not comparable to the existing easement, basically because the new easement has several sharp curves and areas of low visibility that would create “a significant safety risk for motorists and pedestrians.”

            Admittedly, the new road is wider and possibly better constructed than the two-rut, sand-based historic road.  And the new road is connected to other access roads, as required by the language of the 1977 grant.  But in determining whether the new road is a comparable alternative, the district court properly considered a number of other factors, including safety and convenience to its users.  As appellant James Weaver admitted in his deposition testimony, he purposely designed the new road so that it would be “tortuous” and “roundabout” to discourage people from crossing his property.  Because the district court’s finding that the new road is not a comparable alternative to the historic road is reasonably supported by the testimony and evidence presented at trial, we affirm that issue.


            Appellants challenge the district court’s determination that Cleland is entitled to an “unrestricted deeded easement” over the historic road.  Appellants argue that the district court erred in finding that Cleland has a deeded easement over their property because that finding is inconsistent with the court’s ruling at summary judgment that Cleland had a prescriptive easement and because evidence necessary to establish a deeded easement was not presented either at summary judgment or at trial.  Respondents assert that the district court determined that Cleland was entitled to a deeded easement at summary judgment and that appellants are bound by that determination.

            Based on our review of the record and of the parties’ submissions, it appears that substantial confusion existed over exactly what issues were being litigated with respect to Cleland’s claim to an easement over the historic road:  appellants appeared to assume that evidence of use was relevant to the scope of the prescriptive easement described by the court on summary judgment, while respondents appeared to assume that evidence of use or possession was relevant to whether the presumption of abandonment under the Marketable Title Act was overcome.

            This confusion over exactly what issues were decided at summary judgment and what issues were litigated at trial is understandable, given the parties’ failure to follow the rules.  See Minn. R. Gen. Pract. 115.03(d) (requiring party moving for summary judgment to include recitation of undisputed facts in memorandum, and party opposing motion to respond with recitation of disputed facts).  And the district court added to the confusion by failing to clarify the issues it decided on summary judgment or to articulate the issues to be litigated at trial.

            Under these circumstances, appellants are not precluded from challenging the district court’s determination that Cleland was entitled to an unrestricted deeded easement based upon his chain of title.  Appellants filed a motion for amended findings or for a new trial on the issue.  And on appeal from a final judgment, we may “review any order involving the merits or affecting the judgment,” including an order granting or denying summary judgment.  See Minn. R. Civ. App. P. 103.04 (appellate court may “review any order involving the merits or affecting the judgment”); Financial Relations Bd. v. Pawnee Corp., 308 Minn. 109, 112, 240 N.W.2d 565, 566-67 (1976).  Cleland’s claim to a deeded easement must be supported in the record, whether in the documents submitted in support of respondents’ motion for summary judgment or in the evidence submitted at trial.

            Respondents insist that appellants have not challenged the authenticity of the documents submitted by respondents in support of their motion for summary judgment.  Those documents include a 1942 quit claim deed in which Cleland’s predecessors-in-interest conveyed certain property, but “reserve[ed] to the grantors herein, the right to use as a driveway, the driveway as now laid out over the said Lot Two of the premises as described herein or another driveway to be agreed upon.”  Other than the language in this 1942 deed, the record contains nothing to establish the location of this “driveway” or to prove that this “driveway” includes the disputed portion of the historic road that now runs through appellants’ property.  Nor is there anything in the record to establish whether another driveway was agreed upon after 1942.  While respondents point to statements their attorney made in an affidavit and memorandum in support of their motion for summary judgment, these statements are not sufficient to prove that Cleland is entitled to a deeded easement as a matter of law.  See David F. Herr & Roger S. Haydock, 2 Minnesota Practice § 56.17, at 305 (2004) (noting that attorney affidavits are generally not favored as evidence to support summary judgment motion and that affidavits should be limited to “providing foundation for undisputed documents or attaching discovery documents [that] would otherwise be admissible, and should not submit hearsay, improper opinions, arguments, and conclusory statements”).  Because the record fails to support the district court’s legal determination that Cleland has an unrestricted deeded easement based on his chain-of-title, we reverse the district court on that issue.

            That leaves Cleland’s claim to a prescriptive easement over the historic road.  At summary judgment, the district court did determine that Cleland was entitled to a prescriptive easement and included a legal description of the location of that easement in its order.  At trial, evidence was presented on the use of that easement by Cleland and by his immediate predecessor-in-interest, his grandmother Lois Bargen, from whom he obtained his parcel in 1995.[3]  Because the district court made no findings on the scope of Cleland’s prescriptive easement, if any, we remand for additional findings on that issue.

            Affirmed in part, reversed in part, and remanded.



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


[1]  The term “deeded easement” does not appear in any Minnesota case, published or unpublished.  Cleland appears to claim an easement by express grant or reservation based on his chain of title.  See Highway 7 Embers, Inc. v. Northwestern Nat’l Bank, 256 N.W.2d 271, 275 (Minn. 1977) (discussing easements by express grant).


[2] During oral arguments in this case, the panel sought additional information from the parties regarding Cleland’s deeded easement.  Respondents have submitted a supplemental brief and appendix, while appellants have submitted an informal brief.  We have reviewed these additional submissions and have considered them in reaching our decision.


[3]  Confusion also exists because the evidence that was presented at trial could be viewed as tending to prove the scope of Cleland’s prescriptive easement, which requires examination of Cleland’s “use” of the easement, or as relevant to the issue of whether Cleland “possessed” the easement so as to avoid the presumption of abandonment under the Marketable Title Act.  The concepts of “use” and “possession” are similar and evidence tending to prove either concept may overlap.  Cf. Lindberg v. Fasching, 667 N.W.2d 481, 485-87 (Minn. App. 2003) (reversing grant of summary judgment that dismissed claim of easement by express grant when genuine issue of material fact existed as to whether easement holder’s use and occupancy of easement rose to level of “possession” under Marketable Title Act), review denied (Minn. Nov. 18, 2003).