This opinion will be unpublished and

may not be cited except as provided by

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




James M. Jones, et al.,



Edward L. Cullen, Jr., et al.,


Filed June 15, 1999


Foley, Judge[*]

St. Louis County District Court

File No. CX-95-601705

Brian R. McCarthy, Steven J. Sheridan, Magie, Andresen, Haag, Paciotti, Butterworth & McCarthy, P.A., 1000 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellants)

Timothy N. Downs, MacDonald & Downs, 200 Alworth Building, 306 West Superior Street, Duluth, MN 55802-1973 (for respondents)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Foley, Judge.


FOLEY, Judge

Appellants contend that the district court abused its discretion by denying their motion for a permanent injunction to prevent respondent from altering a road-access easement by grading it with a bulldozer and adding gravel. We affirm.


In June 1998, the district court ruled that property owned by appellants James and Shirley Jones is subject to a non-exclusive, 18-foot wide easement for road access over the property, and a non-exclusive personal easement in gross in favor of respondent Edward Cullen, providing him lake access. Respondent filed an appeal of other issues pertaining to that decision, which this court affirmed. See Jones v. Cullen, No. CX-98-1269 (Minn. App. Nov. 24, 1998). During the pendency of that appeal, appellants in this case filed a motion for permanent injunction against respondent to keep him from widening the road and trespassing on their property.

At the hearing on the motion for a permanent injunction, appellants provided an affidavit of Donald Bergholm, stating that "[o]n August 18, 1998, at approximately 3:35 p.m., I observed and photographed [respondent], on a bulldozer widening a road and thereby attempting to take a portion of Parcel A." The Bergholm affidavit also stated that he saw respondent trespass on appellants' property. Also provided was an affidavit of appellant James Jones stating that he saw respondent trespass on appellants' land and throw away appellants' "No Trespassing" sign. Also in evidence at the hearing was a photo of a person, apparently respondent, on a bulldozer on the easement road. At the hearing, appellants' attorney argued that the easement had been a grassy roadway and that respondent had dumped gravel on the road. Appellants, however, provided no testimony or evidence to support this fact.

Respondent testified at the hearing that he had repaired 35 feet of the road-access easement, which had holes in it and some soft spots. He stated it was not a grassy roadway, but rather, a gravel road, which he has graded many times and has put pit-run gravel on several times. Recently, he leveled the road off, pushed a pile of boulders farther east from the roadway, dug some big boulders out of the road, repacked the holes, and put in gravel.

The district court found that (1) appellants failed to provide sufficient proof that respondent had widened the access easement; (2) respondent's actions in adding gravel and grading the access easement are within the purpose of the easement, are reasonable, and are not found to be an alteration of the land; and (3) respondent's entrance upon appellants' property does not constitute a trespass. The district court then denied the motion for a permanent injunction. This appeal followed.


The district court's findings regarding entitlement to injunctive relief will not be set aside unless clearly erroneous. LaValle v. Kulkay, 277 N.W.2d 400, 402 (Minn. 1979); see River Towers Ass'n v. McCarthy, 482 N.W.2d 800, 805 (Minn. App. 1992) (reviewing order granting permanent injunction according to an abuse of discretion standard), review denied (Minn. May 21, 1992). "The party seeking a permanent injunction must show that legal remedies are inadequate and that the injunction is necessary to prevent great and irreparable harm." River Towers Ass'n, 482 N.W.2d at 805 (citing Cherne Indus., Inc. v. Grounds & Assocs., Inc. 278 N.W.2d 81, 92 (Minn. 1979)).

Appellants fail to argue or point to any evidence in the record that the district court's findings were clearly erroneous; rather, they assert that respondent "converted what has always been a natural, grass-covered, road access easement into a gravel easement which runs directly through the middle of [a]ppellants' property." There is no evidence in the record that previously this was a grass-covered road. Based on their view of the facts, appellants argue that the district court abused its discretion in denying the motion by contending that the grantee of an easement cannot engage in any material alterations of the easement without the authorization of the landowner. To support this argument appellants quote Thomas v. Mrkonich, 247 Minn. 481, 485, 78 N.W.2d 386, 389 (1956), stating that "when an easement has once become fixed, there can be no material alteration thereof except by agreement." But Thomas further explains that

the right to make an alteration in an easement is dependent upon the extent of the proposed change; and that, if the change is not so substantial as to result in the creation or substitution of a new and different servitude, but on the contrary is of but a rather slight extent, it will not be held objectionable.

Id. (citations omitted).

Respondent admits that he repaired the road, in part, by placing gravel on it, removing boulders, and filling in holes. Respondent testified that it was a gravel road, and the referee's recommendation providing the easement on which the judgment was based, referred to at least a portion of the easement as being an 18-foot-wide "gravel road."

Because there is no evidence in the record to support the argument that respondent materially altered the land, the district court's finding was not clearly erroneous. Therefore, without showing that the land was or will be materially altered by the addition of gravel, appellants cannot show that there will be irreparable harm necessary to grant a permanent injunction against respondent. See River Towers Ass'n, 482 N.W.2d at 805 (requiring party seeking permanent injunction to show injunction necessary to prevent irreparable harm). The district court did not abuse its discretion in denying appellants' motion for a permanent injunction.


[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.