Denis J. Schoeller, et al., Appellants, vs. David J. Walker, et al., Respondents, U.S. Trust Company, Respondent.

Denis J. Schoeller, et al., Appellants, vs. David J. Walker, et al., Respondents, U.S. Trust Company, Respondent. A04-1828, Court of Appeals Unpublished, June 7, 2005.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1828

 

Denis J. Schoeller, et al.,

Appellants,

 

vs.

 

David J. Walker, et al.,

Respondents,

U.S. Trust Company,

Respondent.

 

Filed June 7, 2005

Affirmed

Stoneburner, Judge

 

Washington County District Court

File No. C703415

 

Bradley N. Beisel, Beisel & Dunlevy, P.A., 282 U.S. Trust Center, 730 Second Avenue South, Minneapolis, MN 55402-2444 (for appellants)

 

James F. Schneider, Butts, Sandberg & Schneider, L.L.P., 155 South Lake Street, Forest Lake, MN 55025 (for respondents Walker)

 

Paige Fitzgerald, Stephenson & Sanford, P.L.C., Suite 220, 1905 East Wayzata Boulevard, Wayzata, MN 55391 (for respondent U.S. Trust Company)

 

            Considered and decided by Stoneburner, Presiding Judge, Hudson, Judge, and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            Denis and Sharon Schoeller appeal from a district court decision that their property is burdened by an easement, arguing that the easement was abandoned, or alternatively, is limited in scope or size.  Because we conclude that (1) the district court did not err by finding, as a matter of law, that the easement is not ambiguous; (2) the record supports the finding that the easement was not abandoned or limited by the actions of the parties or their predecessors; and (3) the district court did not abuse its discretion by failing to use its discretionary or equitable power to impose restrictions on the easement, we affirm.

FACTS

 

Appellants Denis and Sharon Schoeller own lakeshore property on White Bear Lake (servient estate).  Respondent Barbara Walker owns non-lakeshore property adjacent to appellants' property (dominant estate).  Respondent David Walker is married to Barbara Walker. 

            In 1964, appellants' predecessors in interest, Otto and Lorraine Graffunder, sold the dominant property to Walkers' predecessor in interest, Thomas P. FitzGibbon.  The warranty deed from Graffunders to FitzGibbon included an easement:

[T]ogether with a perpetual easement for the benefit of grantee, his heirs and assigns, and their invitees, for all lakeshore purposes and access to White Bear Lake over, across and upon that part of Lot "A" in said Block 1 lying northerly of the south line of said Lot 6 extended west to White Bear Lake and southerly of a line which if extended would run in a straight line from the southwest corner of Lot 5 in said Block 1 to the point of intersection of the northerly line of said Lot 5 and the southerly line of said Lot 6 both extended westerly, subject to all existing rights and easement of any and all owners of land in said East Shore Park in, to and upon the easterly 15 feet of said Lot "A".

 

(Emphasis added).

            The deed was recorded on October 20, 1964 in the Washington County Recorder's office as Document No. 239788.  All subsequent deeds to the dominant estate have recited the easement and have been properly recorded.  All owners of the dominant estate have made seasonal use of the easement to access the lake.

            In 1978, the Graffunders and FitzGibbon's successors in interest (Kerseys) entered into a written license agreement regarding the Kerseys' use of a dock on White Bear Lake owned by the Graffunders.  The license agreement, which was never recorded, described the use of the dock, cost to use the dock, and liability for use of the dock.  The license agreement does not reference the easement. 

            In 1987, Graffunders conveyed the servient estate to Kim and Cindy Graffunder, but the warranty deed did not mention the easement Graffunders had given FitzGibbon.  That deed was properly recorded.  All subsequent deeds to the servient estate have omitted any reference to the easement and have been properly recorded.  A series of license agreements regulated use of the dock owned by the owners of the servient estate until 1993.  Owners of the dominant estate have never sought to erect a separate dock.

            The parties are unable to agree on the use of a single dock and respondents now propose to erect their own dock on the easement.  Appellants contend that there is not enough space to accommodate two docks.  They seek to have the easement declared abandoned, or its terms defined to limit the easement to the northerly ten feet of the easement parcel, or that the owners of the servient estate have a paramount right to erect a dock.

            The district court held that the easement was not abandoned and includes the right of the owners of the dominant estate to install and use a dock.  The district court noted that the "obvious space constrictions and congestion" led to the license agreements to share a dock, but found that the license agreement did not limit the easement in any way.  The district court held that neither party has pre-eminent rights to erect a dock, noting however that both parties' rights to erect a dock may be subject to rules and regulations not at issue in this lawsuit.  This appeal followed.

D E C I S I O N

 

I.          Abandonment

            Appellants argue that the district court erred by finding that the easement has not been abandoned.  Specifically, appellants assert that the owners of the dominant estate abandoned the easement when they entered into the license agreement with the owners of the servient estate.  On review, findings of fact will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.

            As this court has noted:

Abandonment of an easement is generally a question of fact.  Simms v. William Simms Hardware, Inc., 216 Minn. 283, 293, 12 N.W.2d 783, 788 (1943).

 

To have the effect of divesting title and reinvesting the same in the grantor of the easement, the abandonment must amount to something more than mere [nonuse], for there must appear to have been an intentional relinquishment of the rights granted.  * * *.  This intention need not appear by express declaration, but may be shown by acts and conduct clearly inconsistent with an intention to continue the use of the property for the purposes for which it was acquired.

 

Norton v. Duluth Transfer Ry., 129 Minn. 126, 131-32, 151 N.W. 907, 909 (1915).

 

Hickerson v. Bender, 500 N.W.2d 169, 170-71 (Minn. App. 1993).  Additionally, for nonuse of an easement to constitute abandonment, "affirmative and unequivocal acts indicative of an intent to abandon" must accompany nonuse.  Richards Asphalt Co. v. Bunge Corp., 399 N.W.2d 188, 192 (Minn. App. 1987). 

            Appellants argue that the license agreement was intended to facilitate access into and on the lake waters and would not have been necessary if an easement for "all lakeshore purposes" were in effect.  But the district court found that the license agreement applies only to use of a dock, one aspect of the easement, and the language of the license agreement does not extinguish or in any other way limit activities subject to the easement.  This finding is supported by evidence of the license agreement itself, which specifically addresses the licensee's right to use the dock owned by owners of the servient estate, and is not clearly erroneous.  Respondents have admitted that neither they nor their predecessors "have had any rights independent of the license agreement to use the dock owned by the title holders of the servient parcel . . ."

            Appellants argue that Graffunders' failure to include reference to the easement in the 1978 transfer of the servient estate is evidence that the license agreement replaced the easement.  But the omission by Graffunders cannot be evidence of the owners of the dominant estate's intent.  And although the omission explains why the successor-owners of the servient estate may have lacked knowledge of the easement, it does nothing to establish that the easement did not exist.

            Appellant's reliance on Hickerson is also misplaced because the facts of that case are distinguishable.  There, a 15-foot-wide easement for lake access was blocked by improvements to the servient estate in which the owners of the dominant estate acquiesced.  Hickerson, 500 N.W.2d at 170.  Also, the easement had not been used since 1959.  Id.  The district court found that the easement was extinguished by both abandonment and adverse possession.  Id.  On appeal, this court affirmed on both grounds, noting that the failure of the owners of the dominant estate to object to the obstruction to the easement was conduct clearly inconsistent with use of the easement and citing cases in which decades of nonuse coupled with obstructions supported abandonment.  Id. at 171-72.  In this case, the district court found that the easement was not blocked in any way and had been continuously used.  The record supports these findings, and the district court did not clearly err in finding that the easement was not abandoned.

II.        Scope of easement

            The district court found that the easement is not ambiguous and that it clearly includes "boating and therefore the right to dock a boat" and that "[w]ithout a dock, the use of a boat would be almost impossible and would negate one of the essential purposes of the easement."  The express grant creating an easement is a contract.  Lindberg v. Fasching, 667 N.W.2d 481, 437 (Minn. App. 2003), review denied (Nov. 18, 2003).  The determination of whether a contract is ambiguous is a question of law.  Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346 (Minn. 2003).  Questions of law are reviewed de novo.  Morton Bldgs, Inc. v. Comm'r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992).

            Appellants challenge the determination that the easement is unambiguous arguing that whether the phrase "for all lakeshore purposes" includes a dock is both patently and latently ambiguous.  Appellants cite 29A Am. Jur. 2d Evidence § 1135 (2004), which defines a "patent" ambiguity as an uncertainty that appears on the face of the instrument, and a "latent" ambiguity as one which does not appear on the face of the instrument but which is shown to exist for the first time by matter collateral to the writing.  Appellants assert that there is a latent ambiguity because (1) there is no room for a second dock on the easement; (2) none of the owners of the dominant estate sought to erect a dock on the easement; and (3) if the easement included the right to put in a dock there would have been no need for the license agreement regarding use of the dock owned by servient estate owners.  These assertions are without merit.  Whether there is a configuration that would, in 2004, allow for two docks does not make the easement ambiguous as to its meaning in 1964, and the district court found that the license agreement did not in any way limit the scope of the easement.  The supreme court has stated that:

The grantee of an easement or right-of-way to the lake may or may not be entitled to install and use a dock extending from the way into the lake, depending on the circumstances of the particular case.  If the easement is granted in terms which clearly and specifically allow or deny this use, the language of the instrument creating the right will control.

 

Where . . . the easement for a way is granted in general terms, no reference being made to the installation or use of a dock, the uncertainty must be resolved by applying the general principles of law relating to the construction of ambiguous writings.  In addition to the rules which apply generally as aids in the ascertainment of intent in the use of words, extrinsic evidence may be considered relating to the facts peculiar to the particular easement involved on the assumption that the grantor intended to permit a use of the easement which was reasonable under the circumstances and the grantee expected to enjoy the use to the fullest extent consistent with its purpose.

 

Farnes v. Lane, 281 Minn. 222, 225-26, 161 N.W.2d 297, 300 (1968) (involving whether an easement for the purpose of "right-of-way" to the lake included the right to install a dock).  Although the language in the easement in this case is general, it is broad and expansive, providing "for all lakeshore purposes and access to White Bear Lake . . .".  The language has plain and ordinary meaning and is not susceptible of having a limitation relating to maintenance of a dock read into it.  The district court did not err in determining that the language of the easement is unambiguous and includes the right to maintain a dock. 

III.       License agreements did not extinguish any rights provided by easement

            Appellants argue that if the easement included the right to erect a dock, the license agreements are evidence of intent to modify the easement to eliminate dock rights.  We disagree.  As discussed above, the district court correctly concluded that the license agreements pertained only to the use by owners of the dominant estate of the personal property (dock) of the owners of the servient estate and are not the type of evidence necessary to demonstrate relinquishment of any rights granted by the easement.  See Lindberg v. Fasching, 667 N.W.2d 481, 487 (Minn. App. 2003) (stating "[a] claim of abandonment can be upheld only where nonuse is accompanied by affirmative and unequivocal acts indicative of an intent to abandon and is inconsistent with the continued use of the easement." quoting Richards, 399 N.W.2d at 192), review denied (Nov. 18, 2003). 

IV.       Size of easement not limited by adverse possession

            Appellants argue that because owners of the servient estate have erected a dock on the easement for more than 15 years, they have extinguished the easement to that portion on which their dock was erected through adverse possession.  But the district court found that appellants' use of the property for a dock did not prevent owners of the dominant estate from using the easement, and use by the dominant owners was continuous and regular throughout the summers.  The district court found that appellants "failed to adversely possess the easement in an open, continuous, exclusive, adverse, or notorious manner for the requisite 15-year period" to establish adverse possession of any part of the easement, and the record supports this finding.

V.        Neither party has paramount right to erect dock

            We reject appellants' argument that the district court should have exercised its "equitable and discretionary powers" to hold that owners of the servient estate have a "first and pre-eminent right to erect a dock at the easement parcel."  Appellants argue that without such a right, owners of the dominant estate, who have never erected a dock on the easement "would have a first or pre-eminent right to erect a dock, to the exclusion of the owners of [appellants'] Parcel."  But the district court did not determine that the grantees of the easement may exercise the right to maintain a dock to the exclusion of the grantor's undisputed right to maintain a dock.  The district court held that the easement does not give either party the paramount right to erect a dock and did not abuse its discretion by failing to impose such a right.  The district court specifically noted that neither party may unreasonably obstruct the other's use or enjoyment of the property covered by the easement and that erection of a dock exclusively for the benefit of either party could result in such an obstruction of the use or enjoyment of the other party.  The district court further noted that the ability of either party to erect a dock "may well be subject to other rules and regulations not at issue" in this lawsuit.  We conclude that the district court did not err or abuse its discretion in its well-reasoned decision.

            Affirmed.