This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-2426

Stephen M. Watson, et al.,

Appellants,

vs.

Debora Rachelle, Inc.,

Respondent.

Filed July 8, 1997

Affirmed

Holtan, Judge

[*]

St. Louis County District Court

File No. C195601754

A. Blake MacDonald, MacDonald & Downs, 200 Alworth Building, Duluth, MN 55802 (for Appellants)

Robert J. Walter, Hall & Byers, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for Respondent)

Considered and decided by Norton, Presiding Judge, Amundson, Judge, and Holtan, Judge.

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

HOLTAN, Judge

Appellants Stephen M. Watson and Dan A. Bergeron, d/b/a Stone Ridge Partners, claim the trial court erred by (1) not ordering removal of a bridge that encroaches on Stone Ridge's land, (2) not awarding damages for trespass, and (3) undervaluing an easement the court ordered Stone Ridge to give respondent Debora Rachelle, Inc. Rachelle claims it did not trespass and that appellant misrepresented the location of the utility access point. We affirm.

FACTS

Rachelle bought land from Stone Ridge and closed the deal knowing it could not access the utilities where Bergeron said the utility access point was. Rachelle started a building on the property, which included a bridge between the building's second floor and a parking lot on top of a nearby hill. The bridge footings were on Stone Ridge's property. Stone Ridge objected, Rachelle completed the building and the bridge, Stone Ridge sued, and Rachelle counterclaimed for misrepresentation regarding the location of the utility access point. After a court trial, an amended judgment ruled that: (1) Rachelle committed trespass on Stone Ridge's land; (2) Rachelle would pay Stone Ridge $3,000 for a bridge easement; and (3) Rachelle waived any claim it had regarding the easement access point. Both parties appeal.

D E C I S I O N

1. Trespass occurs when a person enters the land of another without the other's consent. Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 404 (Minn. App. 1995). The bridge and its footings are built on and cross over Stone Ridge's land. Rachelle claims Stone Ridge implicitly consented to the construction of the bridge.

Permission to do a particular act includes the implicit authority to do "all that is necessary to effect the principal object and to avail the licensee of his rights under the license." Meixner v. Buecksler, 216 Minn. 586, 590, 13 N.W.2d 754, 756 (1944). Here, a reciprocal easement agreement gives Rachelle the right to use the parking lot at the top of the hill but it does not expressly state Rachelle can build a bridge. Stone Ridge argues that because access to the top of the hill could have been effectuated by methods other than a bridge (e.g., a stairway), Rachelle's right to use the parking lot at the top of the hill does not automatically entitle it to build a bridge.[1]

Absent a showing that the last page of Rachelle's building plans was received by Stone Ridge and that the last page would have put Stone Ridge on notice of Rachelle's intent to build a bridge, Rachelle has not shown that the trial court clearly erred by refusing to rule that Stone Ridge's receipt of the plans was notice that a bridge would be built. See Group Health, Inc. v. Heuer, 499 N.W.2d 526, 529 (Minn. App. 1993) (notice is a question for the fact-finder unless only one inference is possible from undisputed facts); Minn. R. Civ. P. 52.01 (trial court's findings of fact not set aside unless clearly erroneous).

While the trial court found Bernick and Bergeron discussed Bernick's plan to build a bridge, the trial court did not find that Bergeron approved the idea. While Bernick may have had a good-faith belief that Bergeron did not object to a bridge, particularly after she faxed him the plans for the building, absent findings addressing whether Bergeron approved the bridge or received the last page of the fax, the conflicting information on this record precludes us from reversing the trial court on the impact of the Bernick-Bergeron bridge discussions. See Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) (appellate courts do not decide fact issues on appeal).

While consent may be inferred from the conduct of the parties, silence alone is an insufficient basis for such an inference. Northern States Power Co. v. Franklin, 265 Minn. 391, 396, 122 N.W.2d 26, 30 (1963). Here, because the record does not support reversal of the trial court's rejection of the other bases for inferring that Stone Ridge consented to the construction of the bridge, we cannot say that Stone Ridge's silence while the bridge was in its initial phases of construction is a consent to the bridge.

2. Generally, a permanent injunction is the remedy for a continuous trespass, but because an injunction is an equitable remedy, it should not be issued if doing so would be "grossly inequitable." Wojahn v. Johnson, 297 N.W.2d 298, 307 (Minn. 1980). If a landowner builds a structure slightly encroaching on a neighbor's property, an injunction may be denied if the structure does not irreparably injure the neighbor's property, the encroachment was innocently made, and the cost of removal would be great compared to the inconvenience caused the neighbor by continuance of the encroachment. Id. at 307 (citing D'Andrea v. Pringle, 52 Cal. Rptr. 606, 610 (1966), and Graven v. Backus, 163 N.W.2d 320, 325 (N.D. 1968)).[2]

Regarding irreparable harm, Stone Ridge claims the bridge precludes it from the use and enjoyment of its property and that regardless of a hold-harmless agreement, the bridge could subject Stone Ridge to litigation. The trial court, consistent with the record, found that Stone Ridge does not claim it wishes to use the property encroached on and that, given the topography of that area, it was unable to discern uses to which the property could be put. Further, a proper hold-harmless agreement would compensate Stone Ridge for any liability it suffers as a result of the bridge.

Much of Stone Ridge's argument that Rachelle's trespass was not innocent is based on Stone Ridge's claim that Rachelle lacked written permission to build the bridge. Referring to Bernick's conversation with Bergeron and her fax of the building plans, the trial court stated that "[Rachelle] discussed the building of the bridge with [Stone Ridge] and sent [Stone Ridge] diagram that showed the bridge." Because the bridge was discussed, plans showing the bridge were sent, and there was no objection, we cannot say that Rachelle lacked a good-faith belief it could build the bridge and that any required writing was waived or would come later. See D'Andrea, 52 Cal. Rptr. at 611 (encroachment is not innocent if defendant willfully encroaches on plaintiff's land; to be willful, defendant must know he is building on plaintiff's land and must act without a good faith belief he has a right to do so). [3]

Stone Ridge claims that Rachelle did not finish the bridge in good faith because it did so after receipt of letters from Watson and Bergeron objecting to the bridge. Despite knowing these facts, the trial court refused to issue an injunction requiring the removal of the bridge. The trial court's decision is consistent with the facts and equities, which, when viewed in the light most favorable to the trial court's ruling, show that when Rachelle received the first letter objecting to the bridge: (1) Bernick had discussed the bridge with Bergeron and faxed him the building plans, and Stone Ridge had not objected; (2) the bridge footings were installed and any physical encroachment on Stone Ridge's land was functionally complete; (3) the custom-made steel for the bridge had been fabricated; and (4) Rachelle was obligated to pay for the bridge. The trial court's ruling on Rachelle's good faith is not beyond the breadth of its equitable discretion. See City of Cloquet v. Cloquet Sand & Gravel, Inc., 312 Minn. 277, 279, 251 N.W.2d 642, 644 (1977) (a court of equity has broad discretion in fashioning remedies).

The trial court found the cost of removing the bridge to be $8,000 to $9,000. Rachelle claims this figure understates the cost of removing the bridge because it ignores the decrease in the property's value that would result from the loss of the bridge. Wojahn and the cases on which its analysis is based refer to the cost of "removal" of the encroachment rather than removal and all other costs. Wojahn, 297 N.W.2d at 307; see D'Andrea, 52 Cal. Rptr. at 610; Graven, 163 N.W.2d at 325. The district court properly limited its analysis to the cost of removing the bridge.

Stone Ridge alleges that not removing the bridge will cause it inconvenience for various reasons. The claims Stone Ridge makes on appeal have been presented to and rejected by the trial court. On this record, we cannot say the district court abused its discretion in doing so or in concluding the cost to Rachelle of removing the bridge is greater than the inconvenience to Stone Ridge of leaving the bridge in place. Because of the lack of irreparable harm to Stone Ridge in letting the bridge stay in place and Rachelle's good-faith belief it could build the bridge, the trial court did not abuse its discretion in refusing to issue an injunction requiring removal of the bridge. See Unique Sys. Dev., Inc. v. Star Agency, 500 N.W.2d 144, 146 (Minn. App. 1993) (whether to grant a permanent injunction is discretionary with the trial court), review denied (Minn. July 15, 1993).

3. Stone Ridge claims the trial court erred by not awarding it nominal damages for Rachelle's trespass. Stone Ridge did not preserve this issue for appeal by raising it in its posttrial motion. See Stockdale Bancorporation v. Kjellberg, 479 N.W.2d 438, 439 (Minn.App.1992) (new trial motion must identify specific errors to preserve issues for appellate review). Further, because Stone Ridge seeks only nominal damages, we decline to remand on this issue. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (declining to remand for de minimis technical error); cf. Minn. R. Civ. P. 61 (harmless error to be ignored).

4. The trial court ordered Rachelle to pay Stone Ridge $3,000 for an easement. Stone Ridge claims the easement was worth more for various reasons. Not only is the trial court's valuation of the easement consistent with the affirmative testimony of the only expert to testify on the subject, but also it is consistent with the expert's rejection of the argument Stone Ridge makes to this court. We will not alter the trial court's valuation of the easement. Cf. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (asset valuations are findings of fact, are not altered unless clearly erroneous, and are affirmed if within limits of credible estimates made by competent witnesses).

5. Rachelle claims the trial court erred in finding Stone Ridge did not misrepresent the location of the utility access points. Stone Ridge does not challenge these assertions, but, consistent with the trial court's ruling, argues Rachelle waived any misrepresentation claim it may have had.[4]

Rachelle authorized consummation of the transaction despite the facts that: (1) the purchase agreement made Rachelle responsible for determining if the utility access point was acceptable; (2) Rachelle knew the access point was already in use, and it would cost more than expected to access utilities elsewhere; and (3) Rachelle had demanded a reduction in price because of the increased cost of accessing the utilities. These facts support the trial court's ruling that Rachelle waived its claims regarding the location of the utility access point. See Patterson v. Stover, 400 N.W.2d 398, 401 (Minn. App. 1987) (a party waives a contract provision if he knows the provision is not being met and he continues to exercise his contract rights).

Affirmed.

[ ]* 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 Stone Ridge admitted at oral arguments that access from the stairway to the parking lot includes crossing an intervening strip of land owned by Stone Ridge.

[ ]2 At oral arguments, Stone Ridge was unable to point to how they suffered irreparable harm other than mere speculation.

[ ]3 Stone Ridge seems to argue that because Rachelle never indicated the bridge would encroach on Stone Ridge's property, Stone Ridge could not know about the encroachment. We reject any such argument. Stone Ridge owned all of the land to which the end of the bridge not connected to Rachelle's building could be anchored.

[ ]4 To support its argument, Stone Ridge cites its own exhibit 7. That exhibit was not offered at trial and we do not consider it. See Thiele v. Stich 425 N.W.2d 580, 582-83 (Minn. 1988) (appellate courts may not rely on matters not entered into evidence in the trial court).