Robert Garberg, et al., Respondents, Taylor Investment Corporation, et al., Respondents, Judith Haynes, Plaintiff, vs. Walter M. Millerbernd, et al., Defendants, James Ravis, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-1865

 

Robert Garberg, et al.,
Respondents,
Taylor Investment Corporation, et al.,
Respondents,
Judith Haynes,
Plaintiff,
 
vs.
 
Walter M. Millerbernd, et al.,
Defendants,
James Ravis,
Appellant.

 

Filed June 3, 2003

Affirmed

Hudson, Judge

 

Crow Wing County District Court

File No. C0001265

 

Jeffrey J. Haberkorn, Haberkorn Law Offices, Ltd., 122 Second Street Northwest, Aitkin, Minnesota 56431 (for respondent Garberg)

 

Patrick M. Krueger, Virginia J. Knudson, Borden, Steinbauer & Krueger, P.A., 302 South Sixth Street, P.O. Box 411, Brainerd, Minnesota 56401-0411 (for respondent Taylor Investment Corporation)

 

James Ravis, 26836 Ross Lake Road, Aitkin, Minnesota 56431 (pro se appellant)

 

            Considered and decided by Hudson, Presiding Judge, Kalitowski, Judge, and Minge, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

HUDSON, Judge

 

            In this easement dispute, appellant argues that the district court erred when it concluded that (1) an easement was granted; and (2) appellant's cross-claim for misrepresentation was barred by the statute of limitations.  Because we hold that the district court acted properly in concluding that an easement was created and properly concluded that appellant's misrepresentation cross-claim is barred by the statute of limitations, we affirm.

FACTS

On March 12, 1987, a declaration of covenants, conditions and restrictions (declaration) was memorialized on all of the certificates of title for all of the property within the plat of Ross Lake Shores.  Ross Lake Shores consists of seventeen lots and Outlot A.  The declaration was executed by Taylor Investment Corporation (Taylor Investment), a general partner of Taylor Properties IV, the original owner of Ross Lake Shores.  The declaration states that it is applicable to all the lots in Ross Lake Shores, including Outlot A.  Twelve of the seventeen lots have lakeshore and the remaining five lots do not.  The purchasers of lots without lakeshore (back-lot owners), which includes appellant James Ravis (appellant), were also each conveyed an undivided one-seventh interest in Outlot A at the time they purchased their respective lots. 

Ross Lake does not have a public access road.  At the time of initial purchase, Four Seasons Realty of Minnesota, Inc. (Four Seasons), a real estate agent of Taylor Investment IV and subsidiary of Taylor Investment, represented to lakeshore-lot purchasers (respondents) that Outlot A would provide respondents with access to Ross Lake.  Additionally, Four Seasons assured respondents that the declaration also guaranteed their right of access to Outlot A and that Taylor Properties IV retained a two-sevenths undivided interest in Outlot A, further guaranteeing the right of access to Outlot A for all lot owners.

On September 12, 1992, Taylor Investment informed Ross Lake Shores lot owners by letter that it had installed a gate and lock on Outlot A.  Each lot owner was provided with a key.  This was done in response to an apparent problem with locks being placed on the gate at Outlot A which denied some lot owners access.  Subsequently, Taylor Properties IV was dissolved and transferred its two-sevenths interest in Outlot A to Taylor Investment.  Taylor Investment in turn conveyed its acquired two-sevenths interest in Outlot A to a subsequent Ross Lake back-lot owner on October 29, 1998.  

On May 26, 2000, respondents brought a claim against appellant and other back-lot owners seeking a declaration of their right of access to Outlot A, and to enjoin appellant and other back-lot owners from interfering with that right.  Respondents later amended their complaint to include a claim against Taylor Investment and Four Seasons for misrepresentation and damages.  Taylor Investment responded to respondents' claim by raising an affirmative defense of statute of limitations.  Taylor Investment then asserted a cross-claim against appellant and the other back-lot owners alleging that they were improperly interfering with respondents' use of Outlot A.  Appellant countered Taylor Investment's claim by filing a cross-claim against Taylor Investment and Four Seasons for misrepresentation.  Taylor Investment again asserted the affirmative defense of statute of limitations. 

            After a three-day trial, the trial court concluded that the declaration granted an easement over Outlot A in favor of respondents, and ordered that appellant and the other back-lot owners be permanently enjoined from obstructing or interfering with respondents' use of Outlot A.  Additionally, the trial court concluded that appellant's misrepresentation claim against Taylor Investment and Four Seasons is barred by the statute of limitations.  The trial court dismissed all other remaining claims.  This appeal followed.  

D E C I S I O N I

            Appellant argues that because the declaration does not specifically contain the word "easement," the trial court erred by concluding that the declaration granted an easement.  We disagree.

Appellant did not move the trial court for amended findings or for a new trial and appeals directly from the trial court's final judgment.  Where the challenging party makes no motion for a new trial, the only question preserved for appellate review is whether the evidence sustains the findings, conclusions, and the judgment.  Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993).  Appellant also has not provided a transcript.  When a transcript has not been provided on appeal, this court's task is "limited to determining whether the trial court's findings of fact support its conclusions of law."  American Family Life Ins. Co. v. Noruk, 528 N.W.2d 921, 925 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995) (citation omitted).  Statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  Similarly, "[t]he construction and effect of a contract are questions of law for the court * * * ."  Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn. 1979).

An easement is best defined as an interest in land in the possession of another which entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists. 

 

Braaten v. Jarvi, 347 N.W.2d 279, 282 (Minn. App. 1984), review denied (Minn. July 27, 1985), rev'd on other grounds, Haugen v. Peterson, 400 N.W.2d 723, 726 (Minn. 1987); Mpls. Athletic Club v. Cohler,287 Minn. 254, 258, 177 N.W.2d 786, 789 (1970).  An easement is only acquired by grant, express or implied, or by prescription.  Braaten, 347 N.W.2d at 282.  When describing an easement, all that is required is that the land subject to the easement be identified and that the parties' intention be expressed.  Id.

Here, the trial court found that the declaration pertained to all Ross Lake Shore owners and gave to each the right to use Outlot A for the purposes set forth in the declaration.  The record amply supports the trial court's findings.  The declaration provides, in relevant part,

WHEREAS, Declarants desire to provide for the preservation of the values and amenities of Subject Property and, to this end desires to subject aforesaid Subject Property to the covenants, conditions, restrictions and charges hereinafter set forth, each [and] all of which is and are for the benefit of Subject Property as a whole and all owners of any part thereof:

 

NOW, THEREFORE, Declarants do hereby give notice to all purchasers and their successors of any portion of the Subject Property hereinbefore described and whomsoever it may concern that Subject Property is, and each and every conveyance of any portion of Subject Property will be subject to the following covenants, conditions and restrictions and charges which will inure to the benefit of and pass with Subject Property, and each and every parcel thereof, and shall apply to and bind each successor in interest, and any owner thereof.

 

(Emphasis added.)

ARTICLE VII

OUTLOT A

 

            It is intended that Outlot A be used for a picnicking area and swimming beach.  The launching of small motorized watercraft is a permitted use.  This outlot is also an access for motorized boats.  Outlot A will include a protective buffer zone that will be described as follows:

 

[legal description].

 

(Emphasis added.)

            The declaration provides that any purchaser of property in Ross Lake Shores is governed by the covenants, conditions, and restrictions contained in the declaration and that Outlot A is to be used for the purposes specified.  Although the word "easement" is absent, this is not a fatal flaw.  An easement may be created even if the language does not specifically state that an "easement" is being granted.  In Braaten, 347 N.W.2d at 282, the agreement did not expressly state that an "easement" was granted, but we nevertheless concluded that an easement had been granted because the agreement expressed the intent that residential lot owners were entitled to make certain use of the affected land and specifically referred to the lot by its legal description.  Id.  Similarly, in this case, the declaration expresses that Ross Lake Shore lot owners are entitled to make specific use of Outlot A, and Outlot A is specifically referred to by its legal description.

            Nevertheless, appellant claims that under Minn. Stat. § 507.16 (2002), the trial court erred in finding that the declaration created an easement.

Minn. Stat. § 507.16 provides,

NO COVENANTS OF TITLE IMPLIED.

Except as provided in section 507.07, no covenant of title shall be implied in any conveyance or mortgage, whether such conveyance contains special covenants or not.

 

Appellant interprets section 507.16 to mean that the trial court could only have concluded that an easement was granted by the declaration if the declaration itself expressly contained the word "easement."  Appellant opines that because the word "easement" is absent, the trial court improperly "implied" that the declaration granted an easement.  But appellant's argument is fatally flawed because section 507.16 does not govern easements and, as previously stated, under Braaten, an easement may be created even if the language does not specifically state that an "easement" is being granted.  Braaten, 347 N.W.2d at 282.  In any event, the proper subject of section 507.16 is covenants of title, not easements.  Appellant's reliance on Callaway v. Seaton, 156 Minn. 224, 194 N.W. 622 (1923) is similarly misplaced.  Callaway simply supports the proposition that, under Minnesota law, a covenant of title cannot be implied.  Id. at 228, 194 N.W. at 623.  Here, it is undisputed that the titles to Outlot A were properly conveyed.  At issue is whether the declaration by its terms created an easement over Outlot A.  Because Minn. Stat. § 507.16 does not govern easements, it is irrelevant to this court's determination of whether the declaration created an easement over Outlot A.

Appellant next argues that Minn. Stat. § 604 A. 27 (2002), prohibits the trial court from concluding that the declaration granted an easement.  But this argument is equally flawed because appellant has misinterpreted and misapplied the statute. 

Section 604 A. 27 provides,

[n]o dedication of any land in connection with any use by any person for a recreational purpose takes effect in consequence of the exercise of that use for any length of time except as expressly permitted or provided in writing by the owner, nor shall the grant of permission for the use by the owner grant to any person an easementor other property right in the land except as expressly provided in writing by the owner. 

 

Appellant contends that the statute expressly excludes "permission to use by an owner" and "time of use" as valid reasons for granting an easement.  But appellant has taken the statute out of context.  Section 604 A. 27 is a part of Chapter 604A, which addresses civil liability limitations.  Minn. Stat. §§ 604 A. 20 through 604 A. 27 (2002), promote the use of public and private land by the general public for recreational purposes and protects the landowner against common-law duties and liabilities.  See, e.g., Minn. Stat. § 604 A. 20 (stating policy goals "to encourage and promote the use of land * * * and waters by the public for beneficial recreational purposes").  Specifically, section 604 A. 27 provides that use of an owner's land that has been dedicated for recreational purposes may be used only for the time limit permitted or provided in writing by the owner.  More importantly, under the statute, permission by the landowner for the use of his land for recreational purposes does not create an easement to the public.  Id.  Thus, the purpose of section 604 A. 27 is to identify when a particular use has been permitted so as to determine whether the landowner is protected from liability under the statute; not to establish the statutory requirements for the establishment of easements. 

It may seem unfair to appellant that, as a partial owner of Outlot A, he is prevented from fully exercising his property rights.  But the record indicates that a copy of the declaration was given to all Ross Lake Shore owners either before or at the time of their lot purchases.  Accordingly, appellant had notice, either directly or constructively, of the encumbrance on Outlot A.  See Miller v. Hennen, 438 N.W.2d 366, 369-70 (Minn. 1989) (finding that notice is imputed to all purchasers of any properly recorded instrument even if the purchaser has no actual notice of the record). 

We hold that the trial court properly concluded that the declaration granted an easement and properly restrained appellant and the other back-lot owners from taking any actions which might in any way restrict the respondents from exercising their easement rights relative to Outlot A. 

II

Appellant next argues that the trial court erred in concluding that his misrepresentation claim against Taylor Investment and Four Seasons is barred by the statute of limitations.  We disagree. 

Whether an action is barred by the statute of limitations is a question of fact.  Berres v. Anderson, 561 N.W.2d 919, 922-23 (Minn. App. 1977), review denied (Minn. June 11, 1997).  "On appeal, a trial court's findings of fact are given great deference, and shall not be set aside unless clearly erroneous."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).   

Appellant contends that there is no statute of limitations barring the bringing of an action for the reformation and correction of a written instrument upon ground of mistake, relying on Wall v. Meilke, 89 Minn. 232, 236, 94 N.W. 688, 690 (1903).  But appellant's argument fails simply because appellant's action was not for reformation or correction of the declaration because of a mistake.  Rather, appellant alleges that Taylor Investment and Four Seasons misrepresented itself as owners of Outlot A in its letter dated September 12, 1992, because Taylor Investment had deeded its two-sevenths interest in Outlot A to Four Seasons who subsequently deeded the two-sevenths interest to another back-lot owner on October 29, 1998.  Therefore, appellant theorizes, the statute of limitations for his misrepresentation cross-claim began to run on October 29, 1998.  We are not persuaded by appellant's argument. 

Generally, Minnesota law provides a six-year limitation for actions upon express or implied contracts, statutory liabilities, trespass, and injury to one's person or personal property.  Minn. Stat. § 541.05 (2002).  Until a party has been damaged, the right of action does not accrue, nor does the time under the statute of limitations commence to run.  Bonhiver v. Graff, 311 Minn. 111, 117, 248 N.W.2d 291, 296 (1976).  Thus, the statute of limitations begins to run when an actionable injury is discovered or, with due diligence, should have been discovered, regardless of whether the precise nature of the defect causing the injury is known.  Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn. 1999).

Here, the facts support the trial court's finding that Taylor Investment's and Four Season's misrepresentation, if any, became apparent to appellant in the September 12, 1992, letter.  Therefore, September 12, 1992, is the date that appellant's cause of action began to accrue.  We hold that, because appellant did not bring his cross-claim until November 21, 2001, nine years after discovery of the injury, the trial court correctly concluded that the statute of limitation bars appellant's cross-claim.  

Lastly, we note several arguments raised by appellant for the first time on appeal, namely that Minn. Stat. § 507.07 (2002) prevents a finding that appellant's misrepresentation claim is barred by the statute of limitations, that respondent's claim is barred by the statute of limitations, that the declaration violates the Minnesota Constitution, and that appellant received ineffective assistance of counsel.  Generally, this court will not consider matters not argued and considered in the trial court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Therefore, we decline to consider these claims.

Affirmed.