Donald Priebe, et al., Appellants, vs. Jon Stone, et al., Respondents.

This opinion will be unpublished and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

A04-507

 

Donald Priebe, et al.,

Appellants,

 

vs.

 

Jon Stone, et al.,

Respondents.

 

Filed October 26, 2004

Affirmed Willis, Judge

 

Hennepin County District Court

File No. CT 03-012238

 

 

Gregory M. Miller, Charles A. Horowitz, Mansfield, Tanick & Cohen, P.A., 1700 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN  55402-4511 (for appellants)

 

David A. Orenstein, Parsinen Kaplan Levy Rosberg & Gotlieb, P.A., Suite 1100, 100 South Fifth Street, Minneapolis, MN  55402 (for respondents)

 

            Considered and decided by Willis, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

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

WILLIS, Judge

On appeal from summary judgment in this easement dispute, appellants argue that (1) the district court erred by denying their motion for summary judgment, finding that a declaration requiring appellants and respondents to build an access road on an established easement does not permit a two-thirds majority of the lot holders to determine the location of the road in the easement and (2) the district court's placement of the road is inconsistent with the declaration and is otherwise inequitable.  Because we find that the district court did not abuse its discretion in determining the location of the access road, we affirm.

FACTS

 

            In 2000, appellants Donald Priebe and Karen Cucci, husband and wife, and respondents Jon and Linda Stone purchased lots in Lake Windsor Heights, Minnetonka.  Priebe and Cucci jointly own lot 1, where they have built a house; appellant Cucci owns lot 2, which is vacant; and the Stones own lot 3, where they have built a house.  The Stones' lot is the easternmost of the three lots and fronts onto a public street.

As a condition for approval of the development, the City of Minnetonka required that a covenant or deed restriction be filed that established a private-driveway easement and driveway-maintenance responsibilities.  The city further required that an 18-foot-wide driveway within the easement be maintained to the first home and that thereafter a 14-foot-wide driveway be maintained within the driveway easement.

Accordingly, the then-owner of the lots at issue here filed a Declaration of Covenants, Conditions, Restrictions and Maintenance Agreement for a Private Road (the declaration) relating to the lots at issue here.  As required by the City of Minnetonka, the declaration established a 30-foot wide easement for a private road.  The easement is L-shaped, and the east-west leg is somewhat longer than the north-south leg.  The east-west leg of the easement is entirely on the Stones' lot, along their south lot line, and the north-south leg runs essentially along the property line between Cucci's lot and the Stones' lot, with 15 feet of the easement on each lot.  Again as required by the city, the declaration requires that the private road be 18 feet wide until it reaches the house on lot 3 (the Stones' house) and 14 feet wide thereafter; the declaration also provides that all costs of construction, reconstruction, maintenance, and repair of the private road are to be shared equally among the owners of the three lots and requires a two-thirds majority of lot owners to approve such costs. 

  For many months, the parties exchanged proposals regarding where and how to build the private road.  The primary point of disagreement was the placement of the road in the north-south leg of the easement, which runs along the property line between the Stones' lot and Cucci's lot.  When it became apparent that the parties could not agree, the Stones filed suit to have the district court resolve the issue.

            The parties filed competing motions for summary judgment.  The Stones requested (1) judgment that the declaration requires that the owners of the three lots agree unanimously on road placement and (2) in the absence of unanimous consent, judicial placement of the private road.  Priebe and Cucci requested a judgment that the declaration permits a two-thirds majority of lot owners to determine the placement of the private road.

The district court granted the Stones' motion for summary judgment and denied Priebe and Cucci's motion, ruling that the declaration does not allow a majority of the lot owners to determine road placement.  But the district court reserved the issue of where to place the road, stating that it would adopt either the proposal submitted by Priebe and Cucci or the proposal submitted by the Stones should court-ordered mediation fail to result in an agreement regarding road placement.

Priebe and Cucci's proposal placed the north-south portion of the road eight feet onto Cucci's lot and six feet onto the Stones' lot.  The Stones' proposal placed the north-south portion of the private road entirely on Cucci's lot, leaving one foot between the edge of the private road and the edge of the easement.  Placement of the east-west portion of the private road was roughly the same in both proposals; of necessity, all of the east-west leg of the easement is on the Stones' lot.  When the parties failed to resolve their dispute through mediation, the district court adopted the Stones' proposal.  This appeal follows.

D E C I S I O N I.

 

            Priebe and Cucci argue that the district court erred by denying their motion for summary judgment, claiming that the declaration permits a two-thirds majority of lot owners to determine the placement of the private road.  On appeal from summary judgment, the court asks (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Summary judgment is inappropriate when reasonable persons might draw different conclusions from the evidence presented.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).

The declaration provides that "the Owners of Lots 1, 2, and 3, Block 1, LAKE WINDSOR HEIGHTS shall each pay one-third (1/3) of the costs of construction, reconstruction, maintenance and repair of the Private Road.  Said costs shall be agreed upon in writing in advance by at least 2/3 of the Owners of said Lots."  Priebe and Cucci argue that the two-thirds requirement also applies to resolution of road-placement disputes because "improvements to subdivisions typically are made by a majority of lot owners."

But the declaration is silent regarding how the parties are to resolve a road-placement dispute.  The two-thirds requirement to which Priebe and Cucci refer clearly applies only to the costs of construction, reconstruction, maintenance, and repair of the road.  The district court did not err by denying Priebe and Cucci's motion for summary judgment.

II.

 

            Priebe and Cucci contend that (1) the district court erred by adopting the Stones' road-placement proposal, arguing that the proposal is inconsistent with the declaration because the declaration "unambiguously implies" that the center of the access road must be in the center of the easement and (2) the district court abused its discretion because the Stones' proposal inequitably burdens Priebe and Cucci.  Courts have authority to grant equitable relief where justice so requires.  Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn. 1979).  The district court's ultimate decision here was essentially an equitable determination, which we review for an abuse of discretion.  See Metropolitan Life Ins. Co. v. Belland, 583 N.W.2d 592, 593 (Minn. App. 1998).

            Priebe and Cucci note that the declaration provides that the private road is to be built "within the Road Easement" and that the road is to include "[t]he grade, base, surface, ditches, culverts and other elements and appurtenances which create a driving surface upon the Road Easement which is suitable for vehicular traffic."  Priebe and Cucci argue that "[r]ead in the context of the entire agreement, the terms ‘on' and ‘upon' can only have one meaning: ‘down the center of.'  This interpretation is the only one that allows for compliance with the required inclusion of shoulders, ditches, culverts and other elements or appurtenances."  Priebe and Cucci contend that these road appurtenances are not possible under the plan that the district court adopted, which places the north-south portion of the private road entirely on Cucci's lot, leaving only a one-foot shoulder.  But nothing in the record shows that a one-foot shoulder is inadequate.

            The declaration does not define where in the easement the private road should be placed.  The district court's placement of the road is within the easement, and there is nothing in the record that shows that the district court erred by ordering a placement of the private road that is inconsistent with the declaration.

            Priebe and Cucci also contend that the district court's placement of the road inequitably burdens them.  They argue that it would be "more equitable" to place the road down the center of the easement.  In support of this proposition, Priebe and Cucci, noting the absence of Minnesota case law directly on point, cite Carroll Elec. Coop. Corp. v. Benson, 848 S.W.2d 413, 416 (Ark. 1993), in which the Arkansas Supreme Court held that, when defining an otherwise unidentified right-of-way, a court must consider the place and purpose for which the right-of-way was intended and provide a ruling that is reasonable to both the dominant and servient estates.  Priebe and Cucci contend that Carroll stands for the proposition that the burden of the private road must be shared equally.[1]  Carroll is not precedential.  See Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861 (Minn. 1984) (noting that decisions of foreign courts are not binding).  Nor do we find it apposite.  But even if we were to find it persuasive, application of Carroll here would in any event require only a reasonable distribution of the burden of the private road, not an equal distribution.

The record shows that the district court:  (1) received a road-placement proposal from Priebe and Cucci and one from the Stones; (2) attempted to have the parties resolve the dispute through mandatory mediation; and (3) told the parties that, should mediation fail, the district court would select one of the two proposals for placement of the road.  When mediation failed, the district court, having examined both proposals and having heard the arguments of counsel, adopted the Stones' proposal.  In doing so, the district court did not abuse its discretion.

Affirmed.

[1] We conclude that this argument is made with reference only to the north-south portion of the private road.  As we have noted, the record shows that the longer, east-west portion of the road is necessarily all on the Stones' lot.