This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, ' 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-95-2216

St. Anthony Main Phase II Partnership,
Appellant,

vs.

Minneapolis Community Development Agency (MCDA),
Respondent,

St. Anthony Main Properties Limited Partnership, et al.,
Respondents,

Ginko, Inc.,
Respondent.

Filed July 2, 1996
Affirmed in part and reversed in part
Toussaint, Chief Judge

Hennepin County District Court
File No. CT 94-3079

Robert B. Fine, 1710 One Financial Plaza, 120 Sixth Street, Minneapolis, MN 55402 (for appellant)

James T. Swenson, Joanne Turner, Mackall Crounse & Moore, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402 (for respondent MCDA)

Thomas M. Zappia, Lisa R. Hammer, Hance Iverson Zappia LeVahn Berndt & Desmond, Ltd., 941 Hillwind Road N.E., #301, Fridley, MN 55432 (for respondents St. Anthony Main Properties and Brinda Investments, Inc.)

Schmidthuber & Lindell, 431 South 7th Street, Suite 2420 Centre Village, Minneapolis, MN 55415 (for respondent Ginko, Inc.)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.*

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Appellant St. Anthony Main Phase II Partnership challenges the trial court's denial of its request for a mandatory injunction to remove a permanent structure on its easements.

FACTS

In July 1991, appellant acquired Tracts B and C, also known as Phase II, of the St. Anthony Center (Center). At that time, respondent Minneapolis Community Development Agency (MCDA) was the owner of Tract E, a courtyard or "common area" within the Center intended for common use by the public and all Center patrons. [1]

Appellant also acquired two easements on Tract E. The first easement, or "Easement U," gives appellant a non-exclusive six-foot wide access across Tract E, to and from its property to Main Street. [2] The second easement, or "Promotional Easement," was established for the following purposes:

(a) For congregation by individuals on and pedestrian ingress and egress to and from the Benefited Parcels and any and all parts thereof * * * .

(b) For the promotion of the business of the Center including the right to place tables, chairs and other apparatus used for entertainment, education and otherwise in connection with the business promotion of the shopping center and restaurant complex. [3]

On March 25, 1993, MCDA leased Tract E to respondent St. Anthony Main Properties Limited Partnership (Heilicher). On April 15, 1993, Heilicher in turn leased a portion of Tract E to respondent Brinda Investments, Inc. (Brinda). That summer, with the permission of MCDA, Heilicher and Brinda constructed a permanent deck and temporary stage on a portion of Tract E encroaching on Easement U. After construction of the deck, appellant still had access to and from its property to Main Street on a six-foot wide area across Tract E.

In February 1994, appellant brought this action for a mandatory injunction, seeking removal of the deck and stage and enjoining Heilicher and Brinda from interfering with appellant's easements. The trial court denied the injunction to remove the permanent deck. Pursuant to an agreement between the parties, the trial court ordered respondents to remove the temporary stage from Tract E. On its own initiative, the trial court also ordered relocation of the existing easements. This appeal followed.

D E C I S I O N

I.

The decision to grant an injunction rests solely within the discretion of the trial court and will not be reversed unless, based on the record as a whole, there has been an abuse of that discretion. AMF Pinspotters, Inc. v. Harkins Bowling, Inc., 260 Minn. 499, 504, 110 N.W.2d 348, 351 (1961). Injunctive relief should be awarded only in clear cases, reasonably free from doubt. Id. The complainant bears the burden of establishing the material allegations entitling him to relief. Id.

As a preliminary matter, it should be noted that Tract E is Torrens property and the two easements were registered. When acting within its equitable powers, Minnesota courts generally have not treated easements on Torrens property differently from easements on abstract property. For example, the equitable remedy of reformation of a written instrument with respect to a disputed easement is available whether the easement involves abstract or Torrens property. Compare Keis v. Johnson, 354 N.W.2d 609, 611-13 (Minn. App. 1984) (reformation of deed to reflect easement on abstract property) with Nolan v. Stuebner, 429 N.W.2d 918, 924 (Minn. App. 1988) (reformation of certificate of title allowed under Torrens Act), review denied (Minn. Dec. 16, 1988). As we also see no reason to treat registered property differently for purposes of an injunction, we apply the standard analysis here.

To obtain an injunction, the petitioner has the burden of proving that a legal remedy is inadequate and that an injunction is "necessary to prevent great and irreparable injury." Cherne Indus., Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 92 (Minn. 1979). Generally, injunctions are granted only in cases where an interference with or obstruction of the easement substantially changes or unreasonably interferes with the owners use of its easement. See, e.g., Minneapolis Athletic Club v. Cohler, 287 Minn. 254, 177 N.W.2d 786 (1970) (construction of skyway over alley did not interfere with right-of-way easement to use alley); Hildebrandt v. Hagen, 228 Minn. 353, 38 N.W.2d 815 (1949) (injunction granted where fence interfered with prescriptive easement established after 33 years of continuous use); Giles v. Luker, 215 Minn. 256, 9 N.W.2d 716 (1943) (where owner of servient estate threatened to prevent use of right-of-way by trucks hauling gravel, owner of easement was entitled to injunctive relief).

Here, respondents were ordered to remove the temporary stage from Tract E, and thus no longer interfere with the use of appellant's easements. The record reveals, however, that the deck did not substantially change or unreasonably interfere with the use of appellant's easements. The purpose of the easements is primarily for ingress and egress to and from appellant's property to Main Street. The deck did not prevent appellant's access to and from its property to Main Street on a six-foot-wide pathway across Tract E, and thus is substantially similar to Easement U. The new six-foot-wide pathway is outlined in red paint, and directs pedestrians along the western edge of the deck to the entrance of appellant's property.

Appellant contends that the deck, by obstructing pedestrians' view of the doors to its property, forecloses its option of returning its property to specialty shop retail. Appellant, however, offered no evidence that it has been unable to attract retail tenants or that patronage has diminished as a result of the deck construction. Currently, appellant's building is fully occupied with office tenants, with increased gross rental receipts. Further, the record indicates that appellant has considered its north entrance, not the Tract E entrance, to be its main entrance: at times, appellant has even chained the doors adjoining Tract E to prevent pedestrians from using that entrance. The record also indicates that along with the deck and stage construction, Tract E was significantly improved by paving and landscaping the entire tract and making it handicapped accessible. Thus, we conclude that appellant failed to show that it would suffer great and irreparable injury if the deck were not removed.

Appellant also contends that damage in the future use of its property is not capable of being estimated, thus, it argues it has no remedy at law. However, appellant did not present any evidence, such as expert testimony, explaining why it would be impossible to estimate the loss of future property use. In fact, although appellant initially contends that it is impossible to estimate its damages, subsequently it contends only that it would be "difficult" to measure. Damages for loss or change in property use might be measured, for example, by figuring the loss of percentage rent and diminution of value of appellant's property associated with office tenants versus retail tenants. Absent some evidence, other than appellant's mere assertion, showing that the loss in future use of the property is incapable of being estimated, we conclude that appellant failed to meet its burden of showing that it did not have an adequate remedy at law.

Appellant also argues that the trial court erred in holding that the harm to respondents far outweighs any damage to appellant if the injunction were granted. The trial court found that respondents spent $35,653 for the construction of the deck and that the estimated cost of its removal is $33,955. In contrast, appellant has shown no monetary loss such as loss of tenants and patronage as a result of the construction of the deck and stage. Appellant also continues to have access to and from its property on a pathway substantially similar to Easement U. Absent a demonstration that appellant has suffered real harm, the trial court did not err in determining that the harm to respondents far outweighs any damage to appellant if the injunction were granted.

We conclude that the trial court did not abuse its discretion in denying the injunction to remove the deck. The deck does not substantially or unreasonably interfere with the use of appellant's easements, and appellant failed to meet its burden of proving that a legal remedy is inadequate and that the injunction is necessary to prevent great and irreparable injury.

II.

The trial court ordered respondent Heilicher to record a certified copy of the Findings of Fact, Conclusions of Law and Order for Judgment in the office of the Registrar of Titles and County Recorder of Hennepin County. Appellant contends that the relocation of the easements violates the Torrens statute. We agree.

An easement is "an interest in land in the possession of another which entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists". Minneapolis Athletic Club, 287 Minn. at 258, 177 N.W.2d at 789. Generally, where a valid decree has registered title to land in a certain party, the title can be affected, transferred, or encumbered only under the provisions of the Torrens Act. Konantz v. Stein, 283 Minn. 33, 41, 167 N.W.2d 1, 7 (1969) see also Minn. Stat. ' 508.02 (1994).

Minn. Stat. ' 508.71, subd. 2(7) (1994) provides that a certificate of title may be altered by order of a trial court upon any reasonable ground. See also Nolan, 429 N.W.2d at 922 change of certificate of title required to reflect parties' intent. Nevertheless, the procedure to alter a certificate of title is by petition to the court. Minn. Stat. ' 508.71, subd. 2. Here, appellant did not petition for this relief.

This court has permitted a Torrens title certificate to be reformed, but only to correct an ambiguous easement that did not reflect the parties' intent. See Nolan, 429 N.W.2d at 922-23. Here, appellant's easements are not ambiguous. They are clearly defined in documents filed with the Hennepin County Registrar of Titles. Because the proper procedure to alter the title is by petition to the court, we reverse the court's order relocating appellant's easements.

Affirmed in part and reversed in part.


Footnotes

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

[1] Deacon Flats, L.L.C., is the present owner of Tract E.

[2] This easement was created in a document entitled "Second Restatement of Declarations for Common Area, Encroachments and other Easements" dated December 10, 1984, and recorded with the Hennepin County Registrar of Titles.

[3] This easement is found in a document entitled "Declaration of Easement" dated January 28, 1988, and filed with the Hennepin County Registrar of Titles.