This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-603

Bergh and Misson Farms, Inc.,

Appellant,

vs.

Great Lakes Gas Transmission Company, a Limited Partnership,

Respondent.

Filed October 8, 1996

Reversed and Remanded

Parker, Judge

Dissenting, Short, Judge

Kittson County District Court

File No. C09573

Neil A. McEwen, McEwen Law Office, P. O. Box 220, Thief River Falls, MN 56701 (for appellant)

Bridget M. Lindquist, Rajkowski Hansmeier, Ltd., 11 Seventh Avenue North, St. Cloud, MN 56302-1433 (for respondent)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Schumacher, Judge.

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

PARKER, Judge

Respondent Great Lakes Gas Transmission Company, a limited partnership ("Great Lakes"), obtained an easement through the property of appellant Bergh and Misson Farms, Inc. ("Misson Farms"), to lay and maintain a gas pipeline. When the pipeline first required repair, Great Lakes contacted the landowner and entered Misson Farms' field by an agreed-upon access route outside the defined easement. In 1994, without first consulting the landowner or tenant about where it should enter the field, Great Lakes entered Misson Farms' land a second time, again outside its defined easement but in a different area from that agreed upon previously. Great Lakes' traversing of the field created severe ruts in Misson Farms' drainage ditches, causing ponding on the field and damaging the sugar beet crop. On appeal, Misson Farms asserts that the trial court erred by excluding from trial the issues of the reasonableness of the use of the easement and trespass. We reverse and remand.

D E C I S I O N

Trial courts possess broad discretion over the admission and exclusion of evidence. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). This court will not disturb the trial court's ruling unless it constitutes an abuse of discretion or is based on an erroneous view of the law. Id.

1. The trial court found that Misson Farms' easement grant conveyed to Great Lakes an absolute right to enter the property wherever it wished.

The extent of an easement by grant is a factual question to be decided by the appropriate finder of fact. Alton v. Wabedo Township, 524 N.W.2d 278, 282 (Minn. App. 1994). An easement by grant is defined entirely by the terms of the grant. Highway 7 Embers v. Northwestern Nat'l Bank, 256 N.W.2d 271, 275 (Minn. 1977). When ambiguities exist in the grant to be construed, the fact-finder may consider the circumstances surrounding the grant. Id. The scope of an easement is limited to what was originally contemplated or expressly agreed upon by the parties. Larson v. Amundson, 414 N.W.2d 413, 417 (Minn. App. 1987).

An easement holder is limited to reasonable uses of an easement, even under an unrestricted grant of easement. Giles v. Luker, 215 Minn. 256, 260, 9 N.W.2d 716, 718 (1943) (prohibiting easement holder from hauling gravel along easement during sleeping hours, although grant contained no restrictions). The rights of the landowner and the rights of the easement holder are thus "so limited, each by the other, that there may be a due and reasonable enjoyment of both." Id. While the easement holder enjoys the use of the easement, he or she "must exercise that right reasonably, without doing unnecessary injury to [the servient landowner's] property or business." Id. at 260-61, 9 N.W.2d at 718.

The holder of an easement for ingress and egress may use the easement only to the extent necessary for reasonable ingress and egress. Flynn v. Michigan-Wis. Pipeline, 161 N.W.2d 56, 63 (Iowa 1968) (holding, where an easement is of unspecified width, such width as necessary is allowed to afford reasonable ingress and egress); Mandia v. King Lumber & Plywood Co., Inc., 179 A.D.2d 150, 158 (N.Y. App. Div. 1992) (allowing for ingress and egress in an area of a size necessary and convenient for the purpose of the easement).

Misson Farms deeded to Great Lakes a defined, 120-foot wide easement and right-of-way, "with the right of ingress and egress to and from said right-of-way," on a preprinted form supplied by Great Lakes. If Great Lakes needed unrestricted use of the field, it could have so specified on the right-of-way agreement. The 120-foot easement was directly accessible from a public road on the west and could also be reached from an easement Great Lakes held on neighboring property to the north. Because neither of these means of accessing the defined easement required Great Lakes to cross Misson Farms' beet field, a reasonable jury could find that Great Lakes' traversing of that field to reach the easement was not necessary for ingress or egress, was not reasonable, and caused unnecessary harm to the field and crops. A jury issue exists, therefore, on whether Great Lakes' use of the easement was wrongful. We conclude that the trial judge's exclusion of Misson Farms' evidence and argument regarding Great Lakes' wrongful entry to make use of the easement was error.

2. At trial, Misson Farms sought to argue that by unilaterally establishing a route of ingress and egress outside the described boundaries of the easement, Great Lakes trespassed on its land. Because the trial court decided Great Lakes was free to enter Misson Farms' property wherever it chose, the court excluded the trespass evidence. To prove a trespass to property, a plaintiff must show (1) the right of possession by plaintiff; and (2) the wrongful entry upon such possession by defendant. All American Foods v. Aitkin County, 266 N.W.2d 704, 705 (Minn. 1978).

The easement agreement did not explicitly grant Great Lakes the right to enter Misson Farms' field outside the boundaries of the defined easement. Although Misson Farms consented in the past to a different route of ingress by Great Lakes, it was not asked to consent to the entry taken on this occasion. No one disputes that Misson Farms was in rightful possession of the land. Thus, to the extent Great Lakes exceeded the bounds of the 120-foot easement, a jury could find that it committed a wrongful entry and a trespass against Misson Farms. The trial court erred by not admitting evidence of trespass and not submitting the issue to the jury.

3. Although the jury in this case did assess Misson Farms' damages, it did not distinguish between the damages Great Lakes caused within the defined bounds of the easement and without. This distinction is relevant because of the statutory allowance of treble damages for willful trespass. Minn. Stat. § 548.05 (1994); see Helppie v. Northwestern Drainage Co., 127 Minn. 360, 362-63, 149 N.W. 461, 462 (1914) (permitting statutory treble damages in trespass only when trespass is willful and not casual or involuntary). Accordingly, we reverse and remand this case to the district court for a new trial. The trial court must submit, under appropriate instructions, the issues of wrongful use of the easement and trespass, together with a treble damages instruction should the jury find a willful trespass to have occurred.

Reversed and remanded.

SHORT, Judge (dissenting).

I respectfully dissent because where there is no wrongful entry, an action in trespass cannot lie as a matter of law. See All Am. Foods v. Aitkin County, 266 N.W.2d 704, 705 (Minn. 1978)(requiring wrongful and unlawful entry as an essential element of trespass). Misson Farms' right of possession is subject to the right-of-way agreement between the property owner and Great Lakes. That agreement provides Great Lakes with: (1) the right of ingress and egress to and from the right-of-way; (2) the right temporarily to use work space as needed during maintenance and repair of its pipelines; and (3) the duty to compensate the owners/tenants for all damages caused by its exercise of those easement rights.

Given the broad language of the parties' agreement, Great Lakes lawfully entered the property leased by Misson Farms. We should refrain from altering the unambiguous language of a right-of-way agreement to read into that contract a provision favorable to a nonparty. See Highway 7 Embers v. Northwestern Nat'l Bank, 256 N.W.2d 271, 275 (Minn. 1977) (permitting consideration of extrinsic facts in construing grant only when grant is ambiguous); see also Romanchuk v. Plotkin, 215 Minn. 156, 160, 9 N.W.2d 421, 424 (1943) (holding that although ambiguities may exist, a grant of easement is to be strictly construed against the grantor).

A jury determined that Misson Farms was entitled to $19,165 in damages due to Great Lakes' exercise of its easement rights. That verdict is not manifestly and palpably contrary to the evidence. See ZumBerge v. Northern States Power, 481 N.W.2d 103, 110 (Minn. App. 1992) (requiring affirmance of denial of new trial motion unless jury verdict manifestly and palpably contrary to the evidence), review denied (Minn. Apr. 29, 1992); Seidl v. Trollhaugen, 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975) (denying a judgment notwithstanding the verdict if there exists any competent evidence reasonably tending to sustain the verdict). Because there has been no violation of a clear legal right or a manifest abuse of judicial discretion, I would affirm the judgment.