This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-98-1800

Sheila Storck,

Appellant,

vs.

Raymond Storck, et al.,

Respondents.

Filed May 25, 1999

Affirmed

Shumaker, Judge

Stevens County District Court

File No. C097174

Michael M. Fluegel, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chartered, 215 Atlantic Avenue, Morris, MN 56267 (for appellant)

Fred Strege, Smith & Strege, Ltd., 321 Dakota Avenue, P.O. Box 38, Wahpeton, ND 58074 (for respondents)

Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.

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

SHUMAKER, Judge

Appellant Sheila Storck challenges a judgment granting to respondents Raymond A. Storck and Dorothy M. Storck implied easements by necessity for driveway and water access.

Respondents challenge the trial court's determination that appellant is entitled to the delivery of an unrestricted warranty deed.

Because the evidence supports the judgment and the trial court's rulings, we affirm.

FACTS

Raymond Storck's ancestors acquired a half section of farm real estate in 1882, and successive Storck family members owned the land through the ensuing years. As of 1991, Raymond and his wife, Dorothy, had occupied the property for 25 years as their farm homestead.

On January 2, 1991, Raymond and Dorothy conveyed a quarter-section of the land by contract for deed to their son, Michael D. Storck, and his wife, Sheila. Raymond and Dorothy retained the adjoining quarter-section.

The property conveyed to Michael and Sheila included various buildings, the only driveway that served both parcels, and a well that provided water for both parcels. The retained land contained various buildings and the drainfield for the conveyed real estate. No boundary survey was done at the time of the conveyance, but the dividing line between the parcels ran through a garage and a grainary.

The parties shared the driveway and the well. Michael and Sheila used the drainfield. Everyone used the garage and the grainary. Relations were amicable until 1994. In that year, Michael and Sheila divorced. In accordance with a marital termination agreement, the court awarded the conveyed real estate to Sheila. Thereafter, the relationship between Sheila and her former in-laws deteriorated. Sheila shut off the water to the retained parcel and she refused to let Raymond and Dorothy use the driveway to enter their land.

After at least one prior lawsuit and an appeal to this court, Sheila tendered to Raymond and Dorothy the outstanding balance on the contract for deed and requested an unconditional warranty deed. Raymond and Dorothy offered a conditional warranty deed which retained to them repurchase rights. Sheila then brought this declaratory judgment action and Raymond and Dorothy counterclaimed.

The action raised issues as to the interpretation of the contract for deed. Raymond drafted the contact without the assistance of legal counsel. Three provisions are of concern.

The first requires the vendors to "execute, acknowledge and deliver" a recordable warranty deed conveying marketable title upon full performance of the contract.

The second recites the purchase price, the downpayment, the deferred balance, and the interest rate. It then states:

This contract is made specifically on the understanding and agreement between the parties that the above-described real estate will not be sold by perchaser [sic] nor his contract assigned during the lifetime of Raymond Storck or Dorothy M. Storck.

The third provision at issue indicates:

If purchaser becomes unable to continue farming, he or she may sell the property, giving seller first option to buy (or their survivor) at a price and terms as follows * * *.

The day before the trial started, a registered land surveyor conducted a boundary survey and ascertained that the dividing line between the adjoining parcels transects a garage, a grainary and a hog barn.

The trial court determined that the disputed contract for deed provisions were ambiguous. The court interpreted the contract and concluded that the parties intended to restrict the sale of the conveyed property until the contract was fully performed. After full performance, the restrictions were to be removed and the vendees were to receive an unrestricted warranty deed.

As to the dividing boundary line, the parties offered no evidence other than the survey. The court adopted the survey and established the boundary line shown by the survey.

The court also ruled that Sheila is entitled to an implied easement of necessity for the drainfield on the retained parcel; that all parties are entitled to an easement of encroachment as to the buildings transected by the dividing boundary line; and that Raymond and Dorothy are entitled to implied easements of necessity for water from Sheila's well and for ingress and egress over Sheila's driveway. No party moved for amended findings or conclusions, or for a new trial.

On appeal, Sheila challenges the trial court's rulings as to the easements. Raymond and Dorothy, in a notice of review, challenge the trial court's ruling that Sheila was entitled to an unrestricted warranty deed.

D E C I S I O N

When there has been no motion for amended findings of fact or conclusions of law, or for a new trial, the only question preserved for appellate review is whether the evidence sustains the findings, conclusions, and judgment. Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993) (citing Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986)).

1. Contract for Deed Language

The trial court found that the contract for deed provisions restricting the vendees' right to sell the property were ambiguous. The parties do not dispute this finding. The court then construed the contract in an effort to ascertain the parties' intent and to resolve the ambiguities. Karim v. Werner, 333 N.W.2d 877, 879 (Minn. 1983). A trial court's resolution of contractual ambiguity is treated as a finding of fact. Trondson v. Janikula, 458 N.W.2d 679, 682 (Minn. 1990). Findings of fact "shall not be set aside unless clearly erroneous." Minn. R. Civ. P. 52.01. "Clearly erroneous" means "manifestly contrary to the evidence or not reasonably supported by the evidence as a whole." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

The court permitted the parties to present parol evidence of their intent regarding the restrictions. Sheila related conversations with Raymond as to the type of deed to be delivered on completion of the contract, and she testified that Raymond said the property would belong to her and Michael if they paid for it. Raymond did not recall, but did not deny, the conversation. No one offered evidence that precisely and clearly disclosed the parties' intent as to the restrictions.

The court acknowledged Sheila's unrebutted testimony, and then employed established principles of contract construction. The court tried to give meaning to all provisions in the contract; found written provisions controlling over inconsistent printed language; and resolved ambiguities against Raymond as the drafter where it was equitable to do so. See Current Tech. Concepts, Inc. v. Irie Enters., Inc., 530 N.W.2d 539, 543 (Minn. 1995) (contracts are to be construed as a whole); Danelski v. King, 314 N.W.2d 818, 820 (Minn. 1981) (written provisions control over inconsistent printed words); Benson v. City of Little Falls, 379 N.W.2d 711, 713 (Minn. App. 1986) (ambiguity in contract is to be resolved against drafter unless inequitable to do so). The court found that the parties intended to restrict the vendees' ability to sell the property or to assign the contract, and to give the vendors an option to repurchase only until the vendees fully performed the contract for deed. After full performance, the restrictions ceased to exist and the vendees were entitled to the delivery of an unrestricted warranty deed. The court found that the location of the restrictions in the contract tied them to the performance provision of the contract and not to the delivery of the deed. Furthermore, in the blank for title restrictions and liens or encumbrances, Raymond wrote the word "none," and he told Sheila that the property would belong to her and her husband when they paid for it. The trial court's finding that the parties intended the delivery of an unrestricted warranty deed upon full payment of the purchase price is not clearly erroneous.

2. Easements

The trial court found that Raymond and Dorothy are entitled to implied easements of necessity for ingress and egress over Sheila's driveway and for water and waterlines from Sheila's well. Sheila argues that the court's finding was error.

An implied easement by necessity arises when unified title to a parcel of land is severed; the use claimed as an easement right has been so apparent and has continued for so long as to indicate that it is intended to be permanent; and the use is necessary for the beneficial enjoyment of the land. Olson v. Mullen, 244 Minn. 31, 39-40, 68 N.W.2d 640, 646 (1955); Kleis v. Johnson, 354 N.W.2d 609, 611 (Minn. App. 1984) (citing Romanchuk v. Plotkin, 215 Minn. 156, 9 N.W.2d 421 (1943)). An implied easement is determined at the time of severance of title, and changed conditions after severance will neither create nor defeat the easement. Olson, 244 Minn. at 41, 68 N.W.2d at 647.

There is no dispute that title was severed in 1991 when the parties entered into the contract for deed. The court heard evidence that the driveway existed since 1930 and the well and waterlines since 1978. The driveway had been used continuously as access to the farm. Other possible accesses were a ditch and a field. Access through the field would be virtually impossible in the winter and at times when the field is plowed or is muddy. The well was the sole source of water to the shop and other buildings on the retained parcel. Raymond has continuously used the shop to weld and to repair and maintain cars and farm machinery. All of these conditions existed at the severance of title in 1991.

To be "necessary" an easement must be more than a mere convenience. Clark v. Galaxy Apartments, 427 N.W.2d 723, 727 (Minn. App. 1988). The easement need not, however, be indispensable, for reasonable necessity is all that is required. Romanchuk, 215 Minn. at 163, 9 N.W.2d at 426. The evidence is sufficient to support the trial court's finding of the existence of driveway and water easements.

There apparently is no challenge to the court's finding of the existence of an implied easement by necessity for the drainfield, to the finding of an easement by encroachment as to the buildings transected by the boundary line, or to the court's judicial determination of the dividing boundary line.

Affirmed.