This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Kenneth P. Tschumper,


Karen Ambort-Strehl, et al.,

Filed November 16, 1999
Short, Judge

Houston County District Court
File No. CX9746

Gregory B. Schultz, 225 South Kingston Street, Caledonia, MN 55921 (for appellant)

Stephen J. Delano, Darby, Delano & Price, 59 West Third Street, Winona, MN 55987 (for respondents)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

This case involves a dispute over the use of a farm driveway in Houston County. At a bench trial, the court found the deed created an easement appurtenant, which was extinguished by adverse possession, and any use of the property, therefore, was permissive. On appeal, Kenneth Tschumper argues the trial court's findings are insufficient and its conclusions are erroneous. We affirm.


On appeal from the decision of a trial court sitting without a jury, we determine whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and judgment. Minn. R. Civ. P. 52.01; see Schweich v. Ziegler, 463 N.W.2d 722, 729 (Minn. 1990) (applying clearly erroneous standard to trial without jury). While we afford due regard to the trial court's opportunity to judge witness credibility, we do not defer to a trial court on purely legal conclusions. Minn. R. Civ. P. 52.01; Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Tschumper argues the trial court clearly erred in determining the easement was lost by adverse possession. But the record demonstrates: (1) in 1955, Lloyd Kasten prevented Ambrose Baumgartner from using the easement; (2) in the same year, Kasten fenced the property, which prevented use of the easement; and (3) from 1955 to the mid-1970s, Kasten used the fenced-in area for cattle grazing. This evidence sustains the trial court's findings and conclusions that the easement was lost by adverse possession. See Minn. Stat. § 541.02 (1998) (providing 15-year time period to establish adverse possession); Ehle v. Prosser, 293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972) (holding disseizor bears burden of establishing adverse possession by clear and convincing evidence of actual, open, hostile, continuous, and exclusive possession).

Tschumper also argues the trial court erred in concluding the easement was not regained by prescription. See Rice v. Miller, 306 Minn. 523, 524, 238 N.W.2d 609, 611 (1976) (applying same elements required to prove adverse possession in establishing prescriptive easement). Because the trial court found the use of the easement was permissive after Kasten's ownership, Tschumper bore the burden of rebutting the presumption that the use continued to be permissive. See Dozier v. Krmpotich, 227 Minn. 503, 507, 35 N.W.2d 696, 699 (1949) (distinguishing between acquiescence and permission, and finding if use was permissive at inception, use must become adverse to owner's knowledge before prescriptive rights may arise). The record establishes: (1) Keith Stuttgen believed the easement was no longer valid when he purchased the property in 1978; (2) Conrad Tschumper plowed Stuttgen's driveway in the winter and delivered a combine for Stuttgen; (3) Tschumper let Stuttgen use his corn planter; (4) William Poehling and his son cut brush, brought in crushed rock, leveled the driveway with a bulldozer, and gave Stuttgen money; (5) Stuttgen believed these services were done in exchange for use of the driveway; (6) Stuttgen would not have allowed anyone to use the driveway without services or money given in exchange; and (7) for the six years before Stuttgen sold the property in 1993, no one used the easement. Given these facts, the trial court did not clearly err in determining the easement's use after 1978 was permissive and Tschumper did not regain the easement by prescription. See Dozier, 227 Minn. at 508, 35 N.W.2d at 699 (defining permission as "more than mere acquiescence; it denotes the grant of a permission in fact or a license").