This opinion will be unpublished and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

A06-248

 

Michael C. Rollins,
Appellant,

Rodney W. Gulbro, et al.,
Plaintiffs,

vs.

Ivan R. Krueger, et al.,
Respondents,

John P. Coleman,
Defendant,

Erwin A. Lingitz,
Respondent,

Frankie D. Lingitz,
Respondent.

 

Filed September 19, 2006

Affirmed

Parker, Judge*

 

Cass County District Court

File No. 11-CX-99-000264

 

Wilbert E. Hendricks, Hendricks Law Firm, P.O. Box 90, Pine River, MN 56474 (for appellant)

 

Michael T. Milligan, Heidi N. Thoennes, Quinlivan & Hughes, P.A., P.O. Box 1008, St. Cloud, MN  56302 (for Wilbert E. Hendricks)

 

Timothy J. Grande, Frederick W. Vogt, Mackall, Crounse & Moore, PLC, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402-2859 (for respondents)

 

Erwin A. Lingitz, Frankie D. Lingitz, 3788 Labore Road, St. Paul, MN 55110 (pro se respondents)

 

            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

 

PARKER, Judge

 

            Appellant challenges the district court’s order denying appellant’s claim that he is legally entitled to access across respondents’ land because (1) the land was dedicated to public use; or (2) he, along with other owners, holds an easement across the land.  On notice of review, respondents challenge (1) the district court’s decision to refer appellant’s attorney to the Lawyer’s Professional Responsibility Board rather than order monetary sanctions; and (2) the district court’s denial of damages for appellant’s destruction of respondents’ trees.  We affirm.

D E C I S I O N

 

The parties dispute appellant’s entitlement to legal access to a trail, which we refer to as the Disputed Trail.  The Disputed Trail branches off of a trail, which we refer to as the Dedicated Trail, that the original owner platted across Bear Island Woods.  The purpose of the Dedicated Trail is to provide owners of western lots on the island with access to the eastern side of the island when boating because access to the western side of the island can be treacherous during inclement weather.  After the Dedicated Trail was platted in 1970, the original owner constructed the Disputed Trail, which is about the width of a Bobcat blade.  The original owner created the Disputed Trail near the eastern end of the Dedicated Trail, on his own land, because of the land’s topography.  Therefore, two trails exist at the eastern side of the island.  After respondents Kruegers purchased the lot over which the Disputed Trail runs, they granted individual permission to most of the western lot owners to use the Disputed Trail.  A dispute arose between appellant and the Kruegers as to appellant’s right of access to the Disputed Trail.

            Because it is undisputed that appellant[1] does not own a deed to the Disputed Trail, appellant must show entitlement to legal access under one of the following theories:  (1) entitlement by dedication; or (2) entitlement by easement.  It is not the province of the appellate courts “to reconcile conflicting evidence.  On appeal, a trial court’s findings of fact are given great deference, and shall not be set aside unless clearly erroneous. . . .  If there is reasonable evidence to support the trial court’s findings of fact, a reviewing court” will not disturb those findings.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (citations omitted).

I.

 

A.         Did the original owner make a statutory dedication of the Disputed Trail?

            Appellant challenges the district court’s findings and conclusions that the original owner never dedicated the Disputed Trail.  Appellant argues that the original owner made either a statutory or a common law dedication.  A statutory dedication is one made under statute, and the dedication must be executed and recorded as prescribed by statute.  Minn. Stat. § 505.01 (2004).

            Minn. Stat. § 505.01 provides:

Plats of land may be made in accordance with the provisions of this chapter, and, when so made and recorded, every donation to the public or any person or corporation noted thereon shall operate to convey the fee of all land so donated, for the uses and purposes named or intended, with the same effect, upon the donor and the donor’s heirs, and in favor of the donee, as though such land were conveyed by warranty deed.  Land donated for any public use in any municipality shall be held in the corporate name in trust for the purposes set forth or intended.

 

            “The intention to make a statutory dedication must be clearly expressed upon the face of the plat. . . .”  Menage v. City of Minneapolis, 104 Minn. 195, 197, 116 N.W. 575, 576 (1908).   “[W]here, after platting lands, the owner sells lots or blocks with reference to the plat, the platters and their grantees are estopped [from denying] the legal existence of such streets and public grounds as [ ] described in the plat.”  Poudler v. City of Minneapolis, 103 Minn. 479, 481, 115 N.W. 274, 274 (1908).

Here, the original owner did plat a Dedicated Trail so that the owners of the western plots of the island would have access to the eastern side of the island during inclement weather or emergencies.  However, the Disputed Trail is not platted.  Because only the Dedicated Trail has been platted, only it is statutorily dedicated under section 505.01.  The district court did not err in finding that the original owner did not make a statutory dedication of the Disputed Trail.

B.         Did the original owner make a common law dedication of the Disputed Trail?

            A common law dedication is accomplished other than by a plat executed and recorded as required by statute.  Flynn v. Beisel, 257 Minn. 531, 539, 102 N.W.2d 284, 291 (1960).  A common law dedication is created when a landowner intends, either expressly or by implication, to have his land appropriated for public use, and the land is accepted for such use.  Id. at 540, 102 N.W.2d at 291.  This intent may be implied from the acts and conduct of the owner that clearly demonstrate the dedication and upon which the public has a right to, and does, rely.  Id.  Use may be established by a small number of persons.  Daugherty v. Sowers, 243 Minn. 572, 576, 68 N.W. 2d 866, 869 (1955).

            Appellant cites Flynn to support his argument that the original owner revoked his original dedication (the Dedicated Trail) and made a common law dedication of the Disputed Trail which was accepted by the dedicatees, including the Kruegers.  In Flynn, the Minnesota Supreme Court considered whether a common law dedication had been made when the original owner platted land surrounding Lake Koronis including a platted dedication.  257 Minn. at 539-400, 102 N.W.2d at 291.  The platted dedication was eventually abandoned and the original owner constructed a new fenced passageway to the lake that was used continuously for several decades.  Id. at 540, 102 N.W.2d at 291.

The supreme court noted that “acts and visible conduct on the part of the owner which unequivocally and convincingly carry with them a plain intent to dedicate a road to public use will prevail over the owner’s subsequent denial of such intent. . . .”  Id.  And common use by the public is “the very highest kind of evidence of public acceptance of a dedication.” Id. at 541, 102 N.W.2d at 292 (quotation omitted).  The supreme court concluded that since the original owner changed his mind about the plat, fenced a new passageway, and the public consented and used the new passageway, a common law dedication had been made.  Id. at 542, 102 N.W.2d at 292.

Appellant also argues that the original owner’s intent to dedicate the Disputed Trail was established in his answer to the amended complaint.  Appellant contends that the original owner admitted in his answer that he intended to dedicate the platted trail, the Dedicated Trail, and also to dedicate a trail that deviated from the Dedicated Trail for access to the island.  Appellant also contends that the original owner admitted that he constructed a trail for foot traffic, that the dedication was a 40-foot easement but not a roadway, and that the Disputed Trail was an appurtenant easement.  Based on these admissions, appellant argues that the district court clearly erred in finding that the original owner did not make a common law dedication of the Disputed Trail.

Respondents argue that from the evidence, the original owner never clearly intended to dedicate the Disputed Trail because he sold the lots on which the Disputed Trail runs to respondents Kruegers in fee simple by warranty deed.  Additionally, the original owner included a notarized statement by the original owner that respondent Lingitz, former owner of appellant Rollins’s western lots, owned no interest in the lots on which the Disputed Trail runs.  Second, several witnesses testified that while the original owner told several potential purchasers and owners of island lots about the Disputed Trail, he also noted that the Disputed Trail was on his land, which was eventually sold to the Kruegers by warranty deed, despite any claim of dedication of the Disputed Trail to the public.  Third, the original owner platted the Dedicated Trail, which is evidence that he did not intend that the Disputed Trail be dedicated to the public.

While Flynn is persuasive, we conclude that the intent to create a common law dedication cannot be inferred from the original owner’s actions.  Evidence in the record supports that the original owner intended that the Disputed Trail serve as an emergency trail during inclement weather.  He informed several witnesses on separate occasions that the Disputed Trail ran over his land, he sold the land over which the Disputed Trail runs in fee simple by warranty deed to the Kruegers, and he also signed a sworn statement that the former owners of appellant’s land owned no interest in the land over which the Disputed Trail runs.  The district court considered the original owner’s answer, which is somewhat inconsistent in how it refers to the Dedicated and Disputed Trails, and concluded that no common law dedication occurred.  We conclude that the district court’s finding is not clearly erroneous on this record.

II.

A.         Easement by Implication/Easement by Necessity

            “An easement by necessity falls within the general category of implied easements, which arise only in specific fact situations.”  Niehaus v. City of Litchfield, 529 N.W.2d 410, 412 (Minn. App. 1995).  An implied easement is created by: “(1) a separation of title; (2) the use of which gives rise to the easement shall have been so long continued and apparent as to show that it was intended to be permanent; and (3) that the easement is necessary to the beneficial enjoyment of the land granted.”  Romanchuk v. Plotkin, 215 Minn. 156, 160-61, 9 N.W.2d 421, 424 (1943).  But except for the necessity requirement, these factors are only aids in determining whether an implied easement existed.  Olson v. Mullen, 244 Minn. 31, 40, 68 N.W.2d 640, 647 (1955).  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 party asserting the easement has the burden of proving necessity.”  Id.at 726.

            The court determines whether to grant an easement by necessity based on the conditions of the property at the time that landlocked land was originally conveyed.  See Kleis v. Johnson, 354 N.W.2d 609, 611 (Minn. App. 1984) (“Whether an easement may be created by implication . . . must be determined as of the time of severance.”).  Changes subsequent to the time of severance cannot serve as the basis for creating an easement by necessity.  Olson, 244 Minn. at 41, 68 N.W.2d at 647.  Obstacles such as topography, houses, or trees, zoning ordinances, or the need for extensive paving may create conditions where an easement is necessary.  See Rosendahl v. Nelson, 408 N.W.2d 609, 611 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987) (upholding the trial court’s finding of an implied easement where the land’s topography, a city ordinance, and a large tree obstructed access to respondent’s garage).

            Here, appellant has not established that the easement is necessary to the beneficial enjoyment of his land.  Evidence in the record suggests that access to the western part of the island, while more treacherous, can be used, and is used by several landowners.  The district court found that western lot owner Strand used both sides of the island for access, and installed a roller dock near his lot on the west side.  The district court also found that owner Gulbro accessed his western lots primarily from the west, and had a dock and boat lift installed on the west side at one time.  And other western landowners also testified that they used the western side of the island for access, including the Lingitzes, former owners of appellant’s land.  Based on this evidence, appellant cannot establish that an easement by implication is necessary for the beneficial enjoyment of his land, since it appears from the record that the western side of the island is generally accessible.

Furthermore, if appellant encountered inclement weather, it is clear that he could use the Dedicated Trail from the eastern access to walk to his property on the western side.  While not ideal, appellant’s safety is not endangered by using the Dedicated Trail, and keeping abreast of weather developments that could possibly preclude use of the western access is not so onerous as to necessitate an easement through another’s property. 

B.         Easement by Prescription

            Appellant next argues that he has a prescriptive easement to the Disputed Trail.  A prescriptive easement is based on prior continuous use and grants a right to use the property of another.  Romans v. Nadler, 217 Minn. 174, 181, 14 N.W.2d 482, 486-87 (1944).  As such, a prescriptive easement is a “servitude imposed upon corporeal property.”  Id.  A prescriptive easement grants only a right of use and does not carry with it title or a right of possession in the land itself.  Id. at 181, 14 N.W.2d at 487.  “The purpose of prescriptive easements has been to encourage the prompt resolution of disputes before evidence is destroyed or relevant events pass out of memory and thereby stabilize long-continued property uses.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).

            The elements of proof required to establish a prescriptive easement are the same as those necessary to establish adverse possession.  See Romans, 217 Minn. at 177, 14 N.W.2d at 485 (“We construe the word prescription, where the findings and judgment refer to title by prescription to mean adverse possession.”).  “Both require a showing, by clear and convincing evidence, that the property has been used in an actual, open, continuous, exclusive and hostile manner for 15 years.”  Claussen v. City of Lauderdale, 681 N.W.2d 722, 727 (Minn. App. 2004), review denied (Minn. Sept. 21, 2004).

It must appear from the nature and circumstances of the possession that it is hostile and adverse, so that the owner may be informed of it and that he may determine whether the acts consist of mere trespass or assertion of adverse title, lest he be misled into acquiescence in what he might reasonably suppose to be a mere trespass, when he would not acquiesce in the assertion of rights adverse to his title.

 

Romans, 217 Minn. at 178, 14 N.W.2d at 485.

            Occasional and sporadic trespasses for temporary purposes, because they do not indicate permanent occupation and appropriation of land, do not satisfy the requirements of hostility and continuity, and do not constitute adverse possession, even where they continue throughout the statutory period.  Id. But if one who claims an easement has established open, continuous, and unmolested use, there is a presumption that the use was adverse.  Quist v. Fuller, 300 Minn. 365, 371, 220 N.W.2d 296, 299 (1974).  This presumption only applies when a claimant shows a use inconsistent with the owners’ rights “under circumstances from which the owners’ knowledge and acquiescence may be inferred.”  Burns v. Plachecki, 301 Minn. 445, 448, 223 N.W.2d 133, 136 (1974).  A use based upon the owners’ permission is not hostile.  Dozier v. Krmpotich, 227 Minn. 503, 507, 35 N.W.2d 696, 699 (1949).

            Here, appellant’s claim fails because he cannot show the elements of adverse possession.  First, appellant cannot show hostility because, for at least his initial use of the Disputed Trail, he requested permission in writing from the Kruegers to bring a Bobcat on the island over the Disputed Trail and leave a pontoon on the eastern access.  The Kruegers responded by granting appellant permission to bring a Bobcat across the Disputed Trail once.  The Kruegers also suggested that appellant use the Bobcat to improve the Dedicated Trail to extend east to the eastern access, but specifically stated appellant did not have permission to remove the Bobcat across the Disputed Trail.

Appellant argues that the Kruegers acquiesced to other lot owners’ use of the Disputed Trail until 1998.  But evidence in the record establishes that the Kruegers informed other lot owners that the Kruegers did not acquiesce to any use of the Disputed Trail except for emergency use as early as 1984.  In 1984, the Kruegers placed “no trespassing” signs on the west side of the Disputed Trail where it met the Dedicated Trail.  The signs disappeared, and the Kruegers periodically replaced them.  In 1987, the Kruegers placed a “no trespassing” sign at the eastern landing near the end of the Disputed Trail.  In 1990, the Kruegers told another landowner to desist clearing brush on the Disputed Trail because the Kruegers wanted it to return to its natural state and gave the landowner permission to use the Disputed Trail in stormy weather.  From the record, appellant cannot show that he acted adversely to the Kruegers.

            Additionally, appellant must show that his use was continuous.  “The possession of successive occupants, if there is privity between them, may be tacked to make adverse possession for the requisite period.”  Fredericksen v. Henke, 167 Minn. 356, 360, 209 N.W. 257, 259 (1926).   To create a prescriptive easement, there must be uninterrupted adverse use of the servient estate by the owner of the dominant estate for the statutory period.  Schulenberg v. Zimmerman, 86 Minn. 70, 73, 90 N.W. 156, 157 (1902).  Minnesota courts generally allow tacking to all successors in privity with the original owner of the dominant estate, but no examples can be found where a Minnesota court allowed tacking to the period of ownership established by an adjacent owner.  Ebenhoh v. Hodgman, 642 N.W.2d 104 (Minn. App. 2002); see, e.g. Burns, 301 Minn. at 448, 223 N.W.2d at 135 (analyzing whether tacking between a prior and subsequent user was proper); Stanard v. Urban, 453 N.W.2d 733 (Minn.App. 1990) (analyzing whether the trial court rested its holding on the tacking of a prior user’s possession to respondent’s use), review denied (Minn. June 15, 2990).

            Here, appellant purchased lots 8, 12, 13, and 14 in 1997 from respondents Erwin and Frankie Lingitz.  The Lingitzes purchased lots 8, 12, 13, and 14 from the original owner in 1977.  Appellant’s initial complaint was filed on February 23, 1999.  Therefore, in order to show continuous adverse use of the Disputed Trail, appellant must show that the Lingitzes also used the Disputed Trail adversely from at least early 1984.[2] But in 1983 or 1984, the Lingitzes met the Kruegers and discussed the access to the east side of the island.  The Kruegers gave the Lingitzes permission to use the Disputed Trail when the weather was bad, or when they otherwise needed to use it.  Therefore, the Lingitzes’ use was permissive, and appellant cannot show an adverse use of the Disputed Trail for the statutory 15-year period.  Because appellant cannot show all the elements required to establish a prescriptive easement, the district court did not clearly err in denying appellant’s claim of a prescriptive easement.

III.

            Respondents Kruegers also bring a notice of review challenging the district court’s decision to deny rule 11 sanctions against appellant’s attorney Hendricks.  Instead, the district court referred the matter to the Lawyers Professional Responsibility Board.[3]  A rule 11 sanction is reviewed for abuse of discretion.  Leonard v. Nw. Airlines, Inc., 605 N.W.2d 425, 432 (Minn. App. 2000).

The Kruegers argue that “[i]f Minn. R. Civ. P. 11 has been violated, sanctions are mandatory,” citing Gibson v. Coldwell Banker Burnet, 659 N.W.2d 782, 790 (Minn. App. 2003).  While Gibson does state that proposition, neither the text nor the comment to rule 11 mandates sanctions for a rule 11 violation; rather, the district court is permitted to authorize “appropriate sanction[s]” at its discretion if a violation is found.  Minn. R. Civ. P. 11.03. (“If the court determines that Rule 11.02 has been violated, the court may . . . impose an appropriate sanction . . . .”).  The district court may impose sanctions on the motion of a party, or sua sponte.  Minn. R. Civ. P. 11.03(a)(1), (2).

The Kruegers contend that they were personally harmed by several egregious violations of ethical standards that appellant’s attorney Hendricks committed including joining numerous additional plaintiffs without notifying them that they were parties to the action, causing the Kruegers to prepare to defend against nearly a dozen plaintiffs when only appellant Rollins participated significantly in the trial; improperly contacting a party and witness, Dr. Lingitz, to secure a fraudulent affidavit from her, and filing a fourth amended complaint after trial was over.

The district court indicated in its order that it considered financial sanctions, but concluded that referral to the Lawyers Professional Responsibility Board would be more likely to deter future undesired practices.  And appellant’s attorney argues that motions for sanctions brought after the conclusion of trial, as the Kruegers’ motion was, are precluded.  Finally, rule 11 focuses on deterring future inappropriate practices rather than punishing the offending attorney for past acts.  Here, we conclude that the district court’s decision to refer the matter to the Lawyers Professional Responsibility Board for investigation was not only within the district court’s discretion under rule 11, but was the essence of an exercise of deliberative discretion, because it shows careful consideration of the type of conduct alleged and an appropriate remedy for that conduct.

IV.

            The Kruegers also appeal the district court’s denial of damages for costs to replace trees it found that appellant Rollins destroyed without the Kruegers’ permission.  The measure of damages is a legal issue reviewed de novo.  Magnuson v. Cossette, 707 N.W.2d 738, 744 (Minn. App. 2006).

“It has long been the rule in this state that the measure of damages for destruction of trees and shrubbery is the difference between the value of the land before and after the damage has been inflicted.”  Baillon v. Carl Bolander & Sons Co., 306 Minn. 155, 157, 235 N.W.2d 613, 614 (1975).  Where the destroyed trees were small, ill-formed, and used to prevent erosion or prevent noise, the proper measure of damages was diminution of land value.  Id. at 157, 235 N.W.2d at 615.  But where the destroyed trees had substantial value for shade and ornamental purposes, had aesthetic value, and were used as a sound and sight barrier, replacement cost was the proper measure of damages.  Rector, Wardens & Vestry of St. Christopher’s Episcopal Church v. C.S. McCrossan, Inc., 306 Minn. 143, 144, 235 N.W.2d 609, 610 (1975).

            Here, the district court found that the trees were “not large, not ornamental, not long-standing, and served to prevent erosion and to close off the [Disputed Trail.]”  For that reason, the district court found that the proper measure of damages was diminution of land value and that because there was no difference in the value of the land after the trees were destroyed, no damages should be awarded.  Appellant points out that the district court’s findings were ambiguous in that it found that two to five trees were destroyed, although two of three experts testified that they could not find destroyed trees matching the Kruegers’ descriptions.  Appellant also contends that the Kruegers offered no evidence that the value of the land was diminished.

            While the loss of trees on land is unfortunate, the Kruegers themselves described the destroyed trees as sight and sound barriers, but did not offer other evidence that the trees were more like the ornamental trees in Rector than the functional trees in Baillon.  Therefore, the district court did not err in using the “diminution in land value” measure of damages when it denied an award to the Kruegers.

            Affirmed.