This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Lynn L. Rogers, et al.,



John Moore, et al.,


Filed January 26, 1998


Mulally, Judge[*]

Hennepin County District Court

File No. MC9613308

Scott C. Baumgartner, Berglund & Varco, Ltd., 2140 Fourth Avenue North, Anoka, MN 55303 (for respondents)

Kathryn J. Bergstrom, Shelly Huber O'Callaghan, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402 (for appellants)

Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Mulally, Judge.



Appellant challenges the judgment of the district court ordering a prescriptive easement and awarding attorney fees. We reverse.


Respondent Lynn L. Rogers and his first wife bought a house at 1907-1909 Third Street N.E. in Minneapolis on November 21, 1969. When the house was purchased there was a gravel driveway running east-west along the north side of the property. Respondent began renting the Minneapolis house to tenants, although he maintained an upstairs apartment for his own use. Respondent used the driveway to access a parking area behind the house until it was sold in 1983.

In December 1983, D & S Properties purchased respondents' property by a contract for deed and rented the property to tenants until the contract was cancelled for non-payment in June 1991. In October 1991, Joseph Sheehan purchased respondents' property by a contract for deed. The contract was canceled for non-payment in August 1995, and respondents again assumed ownership. Sheehan testified to using the driveway during the intervening period.

In April 1994, appellants purchased the lot adjacent and north of respondents' lot, bordering the driveway. In 1995, appellants erected a fence along the southern edge of their property and planted a metal pole at the corner of their property. This fence obstructed the gravel driveway which encroached three feet onto appellants' property. Respondents then initiated an action to establish their right to use the driveway.

The trial court ordered a prescriptive easement across the southern three feet of appellants' property, enabling respondents to use the driveway. The court awarded costs and fees to respondents. Appellants then moved for amended findings. While the court amended some of its findings, it also awarded $1,000 to respondent for costs incurred in defending against part of appellants' motion. This appeal followed.


The scope of review in a case tried by the court without a jury is limited to determining whether the court's findings are clearly erroneous and whether it erred in its conclusions of law.

Schweich v. Ziegler, Inc., 463 N.W.2d 722, 729 (Minn. 1990). A factual finding is clearly erroneous if not reasonably supported by evidence. Snesrud v. Instant Web, Inc., 484 N.W.2d. 423, 428 (Minn. App. 1992), review denied (Minn. June 17, 1992).


A prescriptive easement is created by an actual, open, continuous, exclusive, and hostile use of another's property for the statutory 15-year period. Romans v. Nadler, 217 Minn. 174, 177-79, 14 N.W.2d 482, 484-85 (1944); see also Minn. Stat. § 541.02 (1998) (15-year-period to create a prescriptive easement). The elements of a prescriptive easement must be proven by clear and convincing evidence. Kenney v. Webb, 352 N.W.2d 848, 849 (Minn. App. 1984).

Respondent testified that he used the driveway from 1969-83. But this period is insufficient to establish a prescriptive easement. Thus, respondents sought to tack the alleged use of the driveway by D & S' tenants. Continuity may be established by tacking adverse use by successive holders through voluntary transfer. Kelley v. Green, 142 Minn. 82, 85, 170 N.W. 922, 923 (Minn. 1919). Use or possession by tenants inures to the benefit of the landlord. SSM Invs. v. Siemers, 291 N.W.2d 383, 385 (Minn. 1980).

The continuity requirement is more relaxed for a prescriptive easement than for adverse possession and is limited to and defined by the use to be established. Romans, 217 Minn. at 179-80, 14 N.W.2d at 485-86. But this does not lower the plaintiff's burden to prove the continuity of the claimed use by clear and convincing evidence. The only presumption to which a party seeking to prove a prescriptive easement is entitled is that adverse use may be presumed upon proving open, actual, continuous, and hostile use for the statutory period. Burns v. Plachecki, 301 Minn. 445, 448, 223 N.W.2d 133, 135-36 (1974).

The district court found that, "[w]hile under D & S Properties' ownership, the property was rented to other tenants who also used the driveway as access to the backyard for parking." But the only evidence of use under D & S's ownership was that respondent testified that: (1) he visited the property approximately 12 times during the eight years D & S owned the property; (2) during those visits he saw cars parked behind the house; and (3) he thought the driveway showed signs of continuous use. We do not find this testimony clear and convincing. It is simply too vague and indefinite to prove continuous use of the driveway through 1983 and 1984 to complete the 15-year statutory period. Because there was insufficient evidence of use under D & S's ownership, respondents failed to meet their burden of proving continuous use for the statutory period by clear and convincing evidence. The trial court's conclusion that respondents obtained a prescriptive easement across a portion of appellants' property was not supported by the record.[1]


A court may award attorney fees and costs against a party that has "acted in bad faith." Minn. Stat. § 549.21 (1996).[2] On review, a decision regarding attorney fees will not be reversed absent an abuse of discretion. Ferlitto v. Ferlitto, 565 N.W.2d 35, 37 (Minn. App. 1997).

In this case, two different fees and costs were granted. The first award of attorney fees was made after litigation of the principal case, for an amount later determined to be $5,000. But the district court made no finding to support the grant of attorney fees, and simply adopted verbatim respondents' proposed findings, conclusions, and order. While adoption of proposed findings is not impermissible in and of itself, there must be some indication that the court engaged in independent review of the evidence. Bersie v. Zycad Corp., 417 N.W.2d 288, 292 (Minn. App. 1987). Here, the order gives no indication that the district court made an independent review of the evidence. Additionally, the court failed to make a finding of bad faith before granting attorney fees for bad faith. See Glarner v. Time Ins. Co., 465 N.W.2d 591, 598 (Minn. App. 1991) (failure to find bad faith in awarding attorney fees is abuse of discretion), review denied (Minn. Apr. 18, 1991). Therefore, this first grant of attorney fees is reversed.

The court also granted respondents $1,000 for costs incurred in defending appellants' motion for amended findings because the court found that the motion was, at least in part, one for reconsideration. The district court cited Carter v. Anderson, 554 N.W.2d 110, 113-114 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996), for the proposition that a motion for reconsideration, which asks the trial court to correct judicial error, is not allowed by the Minnesota Rules of Civil Procedure. But Carter involved a motion to "reconsider" summary judgment that cited Minn. R. Civ. P. 60.02. Id. at 112. Rule 60.02 does not allow the district court to change a judgment based on errors of law. While a motion for reconsideration may not have been permissible, appellants' motion did not seek reconsideration. Instead, appellants asked the court to review the evidence and change certain findings, which is precisely the purpose of a motion for amended findings.

Upon motion of a party made not later than the time allowed for a motion for new trial pursuant to Rule 59.03, the court may amend its findings or make additional findings, and may amend the judgment accordingly if judgment has been entered.

Minn. R. Civ. P. 52.02.

Appellants also moved the court to change some of its conclusions, but these proposed changes simply reflected appellants' challenges to the trial court's findings. This is reasonable since the trial court is allowed to amend its judgment in accordance with any changes in its factual findings. Id. The award of attorney fees for defense against the motion for amended findings is reversed.


[*] 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] Because respondents did not have an interest in the portion of the driveway that was on appellants' property, we need not address the issue of whether appellants were good faith purchasers of their property.

[2] This section has been repealed and replaced by Minn. Stat. § 549.211 (1998). But Minn. Stat. § 549.21 is still applied to this case, which arose before August 1, 1997.