This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,

Department of Natural Resources,



Transport Designs, Inc.,


Ray Riihiluoma, et al.,


Filed May 18, 1999

Affirmed as modified

Halbrooks, Judge

Aitkin County District Court

File No. C497370

Mike Hatch, Attorney General, Craig L. Engwall, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for appellant)

Mark A. Levine, Davis, Dodd, Levine & Miller, Ltd., 1219 Marquette Avenue South, Suite 200, Minneapolis, MN 55403 (for respondent)

Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Halbrooks, Judge.



Appellant State of Minnesota by the Department of Natural Resources (DNR) appeals the trial court's conclusion that the prescriptive easement it acquired over respondent Transport Design, Inc.'s (TDI) access road is limited to foot traffic, all-terrain vehicles, snowmobiles, and light trucks, and excludes use for logging purposes. Because we find the prescriptive easement DNR acquired over TDI's access road included use for timber harvesting, we affirm as modified.


On September 25, 1996, TDI purchased 160 acres of land in Balsam Township, Aitkin County, Minnesota. The property is bordered by more than 6,000 acres of state land. A township road established in 1907 crosses the Prairie River and leads to the south end of TDI's property. Aerial photographs dating back 60 years show the township road connects to an access road that extends northward across the property to the state land.

DNR manages the state land for multiple-use forest management purposes, including planting, growing, and harvesting trees, forest fire prevention and control, and recreational activities for the public. The DNR has ongoing forestry projects on the land and requires continuous access to it. The DNR has granted permits to contractors to cut timber on the state land and use the access road to haul the timber away with logging trucks. Since approximately 1940, the DNR has used the access road to enter the state-owned land.

Burton Anderson, the township treasurer, testified he received a logging permit from the DNR and used the access road for logging purposes in 1950. He also stated he remembered an individual named Peterson had logged the state land prior to 1950. The DNR issued logging contracts each year from 1959 to 1963. The contract issued in 1963 closed on October 25, 1965. However, from September 10, 1963 through October 16, 1981, no timber contracts were issued.

Although it did not issue logging contracts during the 18-year period, the DNR continued to use the easement for forest management purposes. Forester Jeff Wasnick testified that some of the state lands reached by the access road were planted with Spruce and Norway pine in 1966. DNR records showed that once in 1973, twice in 1974, three times in 1975, and twice in 1976, DNR foresters used the access road to reach state lands and take inventory of the timber. In March 1981, DNR foresters also cruised timber for an upcoming timber sale.

On October 16, 1981, the DNR issued its first logging contract in approximately 18 years. At that time, the contract holder, Stuart Demenge, and a DNR forester obtained permission from the owner of the property to use the access road for logging purposes. Demenge improved the access road, widening it to the width of 10 to 12 feet. From October 1981 to May 6, 1993, the DNR issued 37 timber contracts to 12 different contractors. No loggers have used the access road since 1993.

In September 1996 when TDI purchased the land crossed by the access road, it gated the access road preventing the DNR and others from using it. The DNR brought suit against TDI alleging the DNR had acquired a prescriptive easement over the access road on TDI's property. The DNR also sought an injunction to compel TDI to remove the gate blocking the access road.

The case was tried to the district court. It found the DNR presented uncontroverted evidence that it had used and maintained the access road in an open, continuous, actual, hostile, and exclusive manner since approximately 1940. It concluded the DNR had acquired a prescriptive easement over TDI's access road for "all types of use necessary for DNR to conduct its forest management practices." The court, however, excluded private logging from the prescriptive easement stating "there has been insufficient usage in terms of both time and volume to allow [the DNR's] easement to be expanded to include private logging." It limited the easement to foot traffic, all-terrain vehicles, snowmobiles, and light trucks. On appeal, the DNR accepts the trial court's findings of fact, but argues the court's exclusion of logging is inconsistent with its findings of fact, and contrary to the legal principle that the extent of a prescriptive easement is measured and defined by the use made of the land giving rise to the easement. TDI contends the trial court's exclusion of logging implies the trial court found one or more of three events occurred: (1) the DNR abandoned its easement when it did not issue timber contracts for 18 years; (2) the DNR's use of the access road for logging did not satisfy the requirement of continuous use; or (3) the use of the access road for logging purposes constituted an expansion of the DNR's prescriptive easement.


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). In the present case, neither party contests the trial court's findings of fact. The only issue before us is whether the trial court erred in its application of the law. We need not defer to the trial court's ultimate conclusions of law. Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349, 354 (Minn. 1977).

A prescriptive easement is created by an actual, open, continuous, exclusive, and hostile use of another's property for a statutory period of fifteen years. Block v. Sexton, 577 N.W.2d 521, 524 (Minn. App. 1998); see also Minn. Stat. § 541.02 (1998) (15-year period to establish a prescriptive easement). In rural or undeveloped areas, occasional and sporadic use may give rise to a prescriptive easement. See Skala v. Lindbeck, 171 Minn. 410, 413, 214 N.W. 271, 272 (1927) (holding actual and visible occupation is more imperative with developed land). Rights of prescriptive easement in land are "measured and defined by the use made of the land giving rise to the easement." Block, 577 N.W.2d at 525-26 (quoting Romans v. Nadler, 217 Minn. 174, 181, 14 N.W.2d 482, 486 (1944)).

[T]he holder of an easement is not limited to the particular method of use in vogue when the easement was acquired, and * * * other methods of use in the aid of the general purpose for which the easement was acquired are permissible.

Id. at 526 (quoting Washington Wildlife Preservation, Inc. v. State, 329 N.W.2d 543, 546 (Minn. 1983) (emphasis in original) (holding use of a railroad right-of-way as a recreational trail is consistent with the purpose for which the easement was originally acquired, public travel)).

1. Abandonment

In the present case, TDI argues the DNR's failure to issue timber contracts for 18 years is evidence it abandoned use of the access road for logging purposes. Mere failure to use an easement, however, will not necessarily extinguish it. Block, 577 N.W.2d at 525. There must be other affirmative unequivocal acts indicating an intent to abandon the easement. Id. There is no evidence in this case that the DNR took affirmative steps evincing an intent to abandon. On the contrary, the evidence shows timber harvesting is cyclical in nature and the DNR continued its forest management activities from 1965 to 1981 in preparation for future harvesting of trees. The hiatus in the timber harvesting was consistent with the DNR's use of the road for forest management practices, and did not demonstrate an intent to abandon use of the road for logging. See id. (holding landowner did not intend to abandon prescriptive easement over field road although landowner moved away and did not use road for ten years); Washington Wildlife Preservation, Inc., 329 N.W.2d at 546 (holding conversion of use of right-of-way from a railroad bed to a public recreational trail did not constitute an abandonment of that right-of-way for public travel); Richards Asphalt Co. v. Bunge Corp., 399 N.W.2d 188, 192 (Minn. App. 1987) (holding leaving rail spur tracks covered with fill for 16 years was temporary measure to control flooding and not an affirmative act evidencing permanent intent to abandon easement for use of rail spur tracks).

2. Continuity

TDI's contention that the DNR's use of the access road for logging did not satisfy the requirement of continuous use also fails. The trial court found that the intervals in the DNR's logging activity all occurred after the 15-year prescriptive period had been met, and relate to the nature of forest management and timber harvesting. The evidence indicated the access road was used for logging purposes as early as 1950 and was likely used for logging prior to that time. The DNR records of timber contracts demonstrate contracts were issued from 1959 to 1963, and the contract issued in 1963 did not expire until October 1965. Moreover, forester Wasnick testified that each contract would result in dozens of visits by the logging contractors and 6 to 12 visits to the state land by DNR personnel. The evidence was also uncontroverted that the DNR conducts timber planning in ten-year cycles, and it is normal to have gaps in the issuance of timber contracts.

In light of the evidence of the DNR's regular use of the access road for logging purposes between 1950 and 1965 and the cyclical nature of timber harvesting, we conclude the DNR met the continuity requirement for establishing a prescriptive easement. See Romans, 217 Minn. at 179, 14 N.W.2d at 485 (stating the requirement of continuity depends upon the nature and character of the right claimed).

3. Increased burden

Finally, we conclude the DNR did not increase the burden on the access road in 1981 when it began issuing timber contracts after an 18-year hiatus. Rather, we find its issuance of timber contracts from 1981 to 1993 placed no greater burden on the access road than was placed on the road from 1950 to 1965. The evidence adduced at trial indicated timber contracts were issued from approximately 1950 to 1963, and the contractors used the access road to reach the state land and haul out the timber. There was no evidence that this use was any different than the use from 1981 to 1993. Cf. Hermann v. Larson, 214 Minn. 46, 52, 7 N.W.2d 330, 333-34 (1943) (holding the evidence was compelling that the burden on plaintiff's land from defendant's drainage of creamery waste on plaintiff's land was substantially greater after the establishment of defendant's bottling works in 1931); see generally Nordin v. Kuno, 287 N.W.2d 923, 927 (Minn. 1980) (holding store owner's installation of a propane tank, sale of 3.2 beer, and beginning semitrailer deliveries, and garbage service did not materially increase the burden on landowner's land).

Moreover, the scope of an easement is defined by the use made of the land giving rise to the easement. Block, 577 N.W.2d at 525. In this case, the use made of the land is as an access road for forest maintenance. Forest maintenance includes periodic timber harvesting in accordance with the DNR's ten-year plans and the growth of the trees. Thus, we conclude the periodic use of the access road for timber harvesting does not increase the burden on the easement, but is in conformance with the easement's general purpose of providing an access road for forest maintenance.

The easement awarded by the trial court should be expanded to include timber harvesting activities by the DNR and its contractors.

Affirmed as modified.