Gordon Grannes, et al., Appellants, vs. Red Cedar of Yellow Medicine, Inc., et al., Respondents, Swedes Forest Township Board of Supervisors, Respondent. A04-1264, Court of Appeals Unpublished, April 26, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1264

Gordon Grannes, et al.,

Appellants,

vs.

Red Cedar of Yellow Medicine, Inc., et al.,

Respondents,

Swedes Forest Township Board of Supervisors,

Respondent.

Filed April 26, 2005

Affirmed

Lansing, Judge

Redwood County District Court

File No. C1-03-105, C9-04-86

Wallace F. Gustafson, 328 Fifth Street Southwest, P.O. Box 567, Willmar, MN 56201 (for appellants)

Robert D. Stoneburner, Stoneburner Law Offices, 100 Washburne Avenue, P.O. Box 202, Paynesville, MN 56362 (for respondents Red Cedar of Yellow Medicine, Inc., et al.)

Paul D. Reuvers, Jason M. Hiveley, Iverson Reuvers, LLC, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondent Swedes Forest Township Board of Supervisors)

Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

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

LANSING, Judge

In this dispute among neighboring landowners, the district court determined that Red Cedar of Yellow Medicine, Inc. has a prescriptive easement in a long-established quarry road that extends across Gordon and Lavon Grannes’s property. The Granneses appeal this determination and also seek to appeal, through intervention, Red Cedar’s withdrawal of a cartway petition in a parallel proceeding before the Swedes Forest Township Board of Supervisors. The record supports the district court’s determination of a prescriptive easement, and we affirm. We decline to address the Granneses’ challenge to Red Cedar’s withdrawal of its cartway petition because, among other reasons, Red Cedar’s appeal of the township board’s decision is still pending in the district court.

F A C T S

Gordon and Lavon Grannes own property in Swedes Forest Township in Redwood County adjoining recreational property that is owned by Red Cedar of Yellow Medicine, Inc. and used by its members for hiking, fishing, hunting, and picnicking. When Red Cedar purchased the property in 1994, its only access to its property was the quarry road that traverses the Granneses’ property and connects to County Road 7. The quarry road has been in existence since at least 1937 when the granite quarries located at the end opposite County Road 7 began to be actively mined. The road has been used by quarry employees, a sawmill operator, surrounding landowners, and trucks transporting granite from the quarries.

In February 2003 the Granneses sued Red Cedar, its members, and its shareholders for trespass and nuisance (“trespass action”). Red Cedar filed an answer asserting a prescriptive easement on the quarry road. Although technically pleaded only as a defense, the parties and the district court have consistently treated the prescriptive-easement allegation as a counterclaim. At a pretrial conference in June 2003, the Granneses and Red Cedar attempted to negotiate a settlement. As a preliminary step, they jointly agreed to obtain a survey to locate disputed corner markers and granite outcroppings that could affect any proposed changes in the course of the road. In anticipation of a stipulated resolution, the Granneses and Red Cedar agreed to strike the case from the trial calendar pending the results of the survey.

The settlement negotiations failed. Apparently acting on a suggestion in a letter from the Minnesota Department of Natural Resources, Red Cedar submitted a petition to the Swedes Township Board of Supervisors to establish a cartway over the existing quarry road (“cartway proceeding”). In September 2003 the district court denied the Granneses’ motion to enforce the incomplete settlement in the trespass action. In a discussion on whether to assign a trial date, Red Cedar told the court that it wanted to pursue the cartway proceeding because it believed that establishing a cartway over the existing quarry road would be the least expensive solution to its access problems. The district court judge who presided over the pretrial proceedings issued an order that suspended the trespass action pending resolution of the cartway proceeding.

The township board considered Red Cedar’s cartway petition at a November 2003 meeting and at a subsequent meeting on December 9, 2003. At the December 9 meeting, the board announced that it would grant the cartway petition, but for a route other than the existing quarry road. Concerned about the alternate route’s cost, incomplete access, and environmental problems, Red Cedar’s registered agent, Timm Gabrielson, objected to the change and told the board that Red Cedar was withdrawing its petition. In a December 26, 2003 letter to two township representatives, the clerk of court, and the pretrial judge, Gabrielson stated that Red Cedar had withdrawn its cartway petition.

Responding to Gabrielson’s letter, the pretrial judge, on January 6, 2004, issued an order setting the trespass action for trial on February 27, 2004. Copies of the order were sent the same day to two Red Cedar representatives and to the Granneses’ lawyer. On January 8, 2004, the pretrial judge recused himself from further proceedings, and the case was reassigned to another judge.

On January 9, 2004, the township board issued an order granting the cartway petition for the alternate route. The order required that Red Cedar pay compensation to the Granneses and another landowner for the cartway, pay for the cost of a survey “delineating the cartway,” and assume certain maintenance costs. The order also required Red Cedar to pay the Granneses and the other landowner before the cartway could be opened. Red Cedar has taken no steps to comply with the conditions in the cartway order. Instead, it has filed an appeal of the cartway order in district court. That appeal was still pending at the time of oral argument in this case.

On January 26, 2004, the Granneses moved to intervene in the cartway proceeding. They also moved for an order barring Red Cedar from withdrawing its cartway petition and for summary judgment in the trespass action on the ground that the order establishing the cartway rendered the prescriptive-easement counterclaim moot.

In March 2004 the Granneses filed a motion requesting the recused pretrial judge to vacate the January 6, 2004 order that scheduled the trespass action for trial, alleging that the order was an improper ex parte action prohibited by Minn. R. Gen. Pract. 3. The pretrial judge declined to consider the motion because of his earlier order of recusal.

In April 2004 the assigned trial judge denied the motion for summary judgment, reciting in the preliminary information that the cartway petition had been withdrawn and that the pretrial judge’s order setting the case for trial remained in effect. The trial judge granted the Granneses’ motion to intervene in the cartway proceeding for purposes of appeal.

At the trial on the Granneses’ trespass action, Red Cedar presented documentary evidence and affirmative testimony from four witnesses to support its claim of a prescriptive easement. The Granneses presented documentary evidence and testimony in an attempt to rebut the claim. Following trial, the district court issued findings of fact and conclusions of law, determining that Red Cedar had established the existence of a prescriptive easement on the quarry road.

The Granneses appeal from this judgment, challenging the district court’s determination of a prescriptive easement. They also raise three subsidiary arguments that intersect issues in the cartway proceeding: the invalidity of the pretrial judge’s order setting the trespass action for trial, the district court’s failure to hold a hearing on their summary-judgment motion, and the application of the election-of-remedies doctrine. Red Cedar disputes the legal and factual bases for these arguments; Swedes Forest Township has also submitted a response brief.

D E C I S I O N

To establish a prescriptive easement, the claimant must prove use of the property that is actual, open, continuous, exclusive, and hostile for the prescriptive period of fifteen years. Rogers v. Moore, 603 N.W.2d 650, 657 (Minn. 1999). A claimant’s use is presumed to be hostile upon a showing of open, visible, continuous, and unchallenged use for the prescriptive period under circumstances in which the owner’s acquiescence may be inferred. Block v. Sexton, 577 N.W.2d 521, 524 (Minn. App. 1998). If the presumption of hostility applies, the claimant prevails unless the presumption is successfully rebutted. Hartman v. Blanding’s, Inc., 288 Minn. 415, 419, 181 N.W.2d 466, 468 (1970).

A prescriptive easement cannot exist when entry is authorized by a lawfully executed lease. Iverson v. Fjoslien, 298 Minn. 168, 172, 213 N.W.2d 627, 629 (1973). When an original use is permissive, the use presumptively continues as permissive “until the contrary [is] affirmatively shown.” Norgong v. Whitehead, 225 Minn. 379, 383, 31 N.W.2d 267, 269 (1948). To demonstrate that a permissive use was transformed into a hostile use, the claimant must show “a distinct and positive assertion of a right hostile to the rights of the owner.” Johnson v. Hegland, 175 Minn. 592, 596, 222 N.W. 272, 273 (1928) (quotation omitted).

The Granneses contend that the presumption of hostility does not apply because the use of the road was permissive at its inception and because Red Cedar failed to prove the inception of hostility by clear and convincing evidence. The record shows that the Granneses’ predecessor in title, Thomas Iverson, leased land to Bert Gilmer in 1937 for the purpose of mining. This lease ran for a ten-year period and was extended by exercise of a ten-year renewal option that expired in 1957. The lease was admitted into evidence, and the trial court analyzed the terms of the lease in the memorandum accompanying its order determining the existence of the prescriptive easement.

The court expressly found that the lease is silent on the use of the road, and, consequently, the use of the road was not permissive at its inception. The record supports this finding. The trial court further found that the Granneses and their predecessor in title passively acquiesced in the use of the road and did not assert their paramount rights against the adverse, open, visible, and continuous use of the road that extended from 1937 until the time of trial. Because these findings are amply supported by trial testimony, we reject the Granneses’ claim that the district court erred in its determination that Red Cedar established a prescriptive easement.

Pointing to specific language in the trial court’s order, the Granneses also contend that the court’s findings are clearly erroneous because they confuse the dominant estate, the estate benefiting from an easement, with the servient estate, the estate burdened by an easement, in its findings relating to the 1937 mining lease. Red Cedar does not dispute the confusion in terms but disputes that it affects the validity of the analysis.

We are not persuaded that the court incorrectly used the terms because the trial court appears to have used them as they apply to the current property ownership, and the Granneses and Red Cedar incorrectly infer that the terms apply to the 1937 property ownership. But we are persuaded that whichever antecedent was intended, the court’s independent finding that the lease is silent on the use of the road is dispositive. This finding is not disputed. The Granneses have not presented evidence that the use of the quarry road was permissive at its inception as the product of a lease or a payment, and, consequently, the Granneses have not rebutted the presumption of hostility created by the affirmative evidence of the unchallenged, open, visible, and continuous use of the quarry road. The district court did not err in concluding that Red Cedar has a prescriptive easement in the quarry road.

In the first of three subsidiary arguments for reversal, the Granneses argue that the pretrial judge’s order that set the trespass action for trial must be vacated because it violates both Minn. R. Gen. Pract. 3, governing ex parte orders, and the Minn. Code Jud. Conduct Canon 3A(7)(a), which prescribes adjudicative responsibilities relating to ex parte communications. Reserving, at the outset, an inquiry into the practical effect of vacating a scheduling order for a completed trial and the question of waiver for failure to pursue timely injunctive relief, we first address the argument as presented.

The Granneses characterize the pretrial judge’s January 6, 2004 order as a dispositive judicial determination that Red Cedar has validly withdrawn its cartway petition in the cartway proceeding. We think that the Granneses are overstating the import of the order. The order states that the trial on the trespass action was suspended because Red Cedar indicated that it was filing a petition for a cartway and that the case was set for trial because that “petition ha[s] been withdrawn.” In the context of the trespass action, this order is essentially a scheduling order. The pretrial judge had previously asked Red Cedar if it wanted the case set for trial when the settlement negotiations had failed. Red Cedar asked that the case not be set for trial because it wanted to pursue a cartway petition that it believed would be less expensive to achieve. The pretrial judge held the case in suspension to await the outcome of the cartway proceeding. When Red Cedar notified the court and others by letter that it had withdrawn its petition, the pretrial judge set the case for trial.

The better practice would have been for Red Cedar to mail a copy of its letter to the Granneses’ attorney or for the court to have directed Red Cedar to do so before setting the trespass action for trial. But reinstating the trespass action on the trial calendar is not a dispositive judicial determination on the issue of whether Red Cedar validly withdrew its cartway petition. That issue is pending before the district court in an appeal from the township board’s order establishing the cartway over an alternate route. The issue of the cartway-petition withdrawal has neither been heard nor decided and consequently cannot be consolidated for appeal with the decision on the trespass action. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (concluding that appellate court should only review issues presented and decided by district court).

The district court has the administrative responsibility to manage the trial calendar and to assure that cases are promptly set for trial. See McIntosh v. Davis, 441 N.W.2d 115, 119 (Minn. 1989) (observing that trial courts “are responsible for case management and must control calendars”). Based on the record, particularly the transcripts of the hearings, we conclude that the pretrial judge was attempting to fulfill the court’s administrative responsibilities.

Furthermore, ex parte communications for scheduling and administrative purposes that do not deal with substantive issues on the merits are, with some exceptions, authorized. Minn. Code Jud. Conduct Canon 3A(7)(a)(i). We see no unfair advantage that inured to Red Cedar by promptly reporting to the pretrial judge its belief that it had withdrawn its cartway petition. The record demonstrates that the Granneses and their attorney were well aware of this development in the cartway proceeding, and the court sent copies of the order scheduling the trial to the Granneses’ attorney and Red Cedar’s representatives simultaneously. The trial judge also permitted the Granneses to intervene in the cartway proceeding. On these facts, we reject the Granneses argument that the scheduling order should be vacated.

III

The Granneses also argue that the trial court reversibly erred in failing to hold a hearing on their summary-judgment motion. They contend that they were denied an opportunity to argue that the township board’s grant of the cartway petition rendered the counterclaim for a prescriptive easement moot. In a related argument, the Granneses contend that the election-of-remedies doctrine precludes a prescriptive easement because the township board had already granted Red Cedar’s cartway petition.

The Minnesota Rules of Civil Procedure do not guarantee the right to a hearing on all motions. See Minn. R. Civ. P. 43.05 (stating that court “may direct that [a motion] be heard wholly or partly on oral testimony or depositions”); see also Braith v. Fischer, 632 N.W.2d 716, 723 (2001) (holding no abuse of discretion when district court declined to hear oral testimony), review denied (Minn. Oct. 24, 2001). We are unable to find in the record a specific request for an evidentiary hearing. The Granneses’ attorney submitted an affidavit and secured a time for the motion but did not specifically indicate that a hearing was necessary. We conclude that the court did not err in its procedural decisions; we also conclude that the Granneses’ substantive arguments lack merit.

First, the Granneses have not demonstrated that the township board’s order in the cartway proceeding renders the prescriptive easement moot. The absence of an alternate access to property is a necessary prerequisite to establishing a cartway. Minn. Stat. § 164.08, subd. 2 (2004). But the absence of alternate access is not an element necessary to establish a prescriptive easement. Rogers, 603 N.W.2d at 656-57 (listing elements necessary to establish prescriptive easement). Consequently, regardless of whether Red Cedar’s withdrawal of the petition is valid, Red Cedar’s counterclaim for a prescriptive easement is not moot.

Second, the Granneses have failed to demonstrate that the election-of-remedies doctrine applies to the two parallel proceedings. “The purpose of the election-of-remedies doctrine is not to prevent recourse to a potential remedy but to prevent double redress for a single wrong.” Northwestern State Bank v. Foss, 293 Minn. 171, 177, 197 N.W.2d 662, 666 (1972). The doctrine applies only when a claimant “adopts one of two or more coexisting and inconsistent remedies which the law affords upon the same [set] of facts.” Hardware Mut. Cas. Co. v. Ozmun, 217 Minn. 280, 287, 14 N.W.2d 351, 355 (1944). The establishment of a cartway constitutes quasi-legislative action. See Rask v. Town Bd. of Hendrum, 173 Minn. 572, 574, 218 N.W. 115, 116 (1928) (describing cartway determination as “one of policy, legislative in its nature”). The Granneses have provided no authority to support a determination that pursuing a quasi-legislative establishment of a cartway is an election of remedies that precludes a legal determination of a prescriptive easement.

In a response brief separate from Red Cedar’s, Swedes Forest Township submits that this court should vacate the order establishing a cartway because the prescriptive easement provides Red Cedar adequate access to its property. Apparently recognizing the procedural complexities this appeal has generated, the township indicates, “In the event the [c]ourt addresses the issue of the withdrawal of the [p]etition, the [t]ownship does not object to the [c]ourt vacating the [s]upervisor’s [o]rder on the basis [of] a valid withdrawal.” But the district court has not yet heard or decided the appeal of the cartway order, and this court has no authority to short-circuit that process. The course of this appeal fully demonstrates, at least to us, the hazards of attempting to abridge established procedures and persistently entangling two parallel but separate proceedings.

Affirmed.