Jack Grabow,et al., Respondents; Charles C. Cleland, intervenor, Respondent, vs. James C. Weaver, et al., Appellants; Daniel J. Kinsella,et al., Defendants.
Annotate this CaseThis opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (2006).
STATE
OF MINNESOTA Jack Grabow,et al.,
Filed
October 2, 2007 Affirmed
in part, reversed in part, and remanded Klaphake, Judge Crow Wing County District Court File No. C3-04-409 Lonny D. Thomas, Jonathan T. Trexler, Thomas
& Associates, P.A., 34354 County Road 3, P.O. Box 430, Cross Lake, MN 56442 (for respondents Grabow, et al., and
Cleland) Thomas P. Malone, Karen K. Kurth, Barna Guzy
& Steffen, Ltd., 200 Coon Rapids Boulevard, 400 Northtown Financial Plaza,
Minneapolis, MN 55433 (for appellants) Considered and decided by Lansing, Presiding Judge; Klaphake,
Judge; and Muehlberg, Judge.* KLAPHAKE, Judge The
parties in this case own property located along the southeast shore of Pelican
Lake in Crow Wing County. Respondents
John and Nellie Weaver, along with Jack and Gloria Grabow, brought this
declaratory judgment against appellants James and Melanie Weaver and others who
were dismissed from this action prior to trial.
Respondents sought to protect their easement rights over a historic road
that crosses the parties' properties; this dispute was precipitated by
appellants' decision to reroute the road to the southern edge of their
property, away from their buildings. Respondent
Charles Cleland, who owns property to the northeast of appellants, intervened,
initially claiming that he is entitled to a prescriptive easement over the
historic road and later revising his complaint to include a claim that he also
has a "deeded easement"[1] over the
road. In August
2005, the district court granted summary judgment to the Grabows and reformed
their 1974 deed to include an easement over the historic road; appellants do
not challenge this determination, and the Grabows are not part of this
appeal. But the district court denied
summary judgment to respondents and to Cleland, determining that genuine issues
of fact existed as to their claims. Following
a three-day trial, the court ruled that the new road constructed by appellants
was not a "comparable alternative" to the historic road and that respondents
continued to hold an easement over the historic road based on the language of a
1977 deed. The court also found that
Cleland and his predecessor-in-interest had continuous possession of an "unrestricted
deeded easement" over the historic road, which served to overcome the
presumption of abandonment under the Marketable Title Act. See
Minn. Stat. § 541.023, subd. 1 (2004). This
appeal followed the district court's denial of appellants' motion for amended
findings or a new trial.[2] Because the district court did not clearly
err in finding that appellants' new road was not a "comparable alternative" to
the historic road, as required by the language of the 1977 deed, we affirm on
that issue. But because the record fails
to establish Cleland's claim to an "unrestricted deeded easement," the court
erred in granting such an easement; its decision on that issue is reversed. And because the court failed to make any
findings on the scope of Cleland's prescriptive easement, if any, we remand to
the district court on that issue. After a
trial without a jury, we must determine whether the district court's findings
are clearly erroneous and whether the court erred in its conclusions of
law. Powell
v. MVE Holdings, Inc., 626 N.W.2d 451, 457 (Minn.
App. 2001), review denied (Minn. July 24,
2001). I. Appellants'
claim to the historic road is based on the language of a 1977 warranty
deed. The properties owned by appellants
and respondents were originally part of a larger parcel of land that the
Weavers, who are brothers, purchased in 1968.
The parcel was held in the name of appellants for nine years, while the
parties negotiated the division of the parcel.
The negotiations involved a number of issues, including easement
locations, boundary lines of the individual pieces of property, and rights of
first refusal. In
1977, appellants executed a warranty deed to respondents. The deed granted an easement over appellants'
parcel in favor of respondents and reserved an easement over respondents'
parcel in favor of appellants. The easement
language allowed either party to move the easement if certain conditions were
satisfied, including the condition that the alternative easement was
"comparable." Appellants
raise a number of issues involving the district court's determination that the
new road is not a "comparable alternative" to the historic road. A number of those issues revolve around the
district court's decision to consider the testimony of respondents' expert, a
professional engineer who compared the quality of the historic road with that
of the new road. We will not disturb a
district court's decision to admit an expert's testimony absent a showing that
the court abused its sound discretion. See Dunshee v. Douglas, 255 N.W.2d 42,
47 (Minn.
1977). In
rejecting appellants' objections to the expert's testimony, the district court
reasoned that because the term "comparable" is ambiguous, it needed to
determine the meaning given that term by the parties and "apply that meaning to
the historic easement and the proposed new easement to determine whether the
proposed new easement is, in fact, comparable' to the historic easement." The court concluded that the "testimony and
opinion of [the expert] is relevant to the Court's application of [the]
parties' intended meaning of the term comparable' to the proposed new road and
will assist the Court in that application."
See Minn. R. Evid. 401
(definition of "relevant evidence"), 702 ("If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise."). Appellants
assert that the district court erroneously relied upon circumstances not
contemplated or expressly agreed to by the parties when it considered the
testimony of respondents' expert. See Block v. Sexton, 577 N.W.2d 521,
525-26 (Minn. App. 1998) (when grant language is ambiguous, extent of easement
depends entirely on construction of grant's terms, and document is
controlling); see also Highway 7 Embers
v. Nw. Nat'l Bank, 256 N.W.2d 271, 275 (Minn. 1977). But when the language is ambiguous, as here,
the court is not limited to the four corners of the document and may consider
extrinsic evidence to determine the extent and scope of the easement. See
Bergh & Mission Farms, Inc. v. Great Lakes Transmission Co., 565 N.W.2d 23, 26 (Minn. 1997). Appellants
also argue that the testimony of respondents' expert should have been excluded
under the parol evidence rule. As noted
by respondents, the parol evidence rule does not preclude consideration of
facts arising after the formation of a contract that are relevant to
performance or breach; rather, the rule excludes consideration of evidence of
"prior or contemporaneous utterances or writings" that conflict with the
written contract or add terms to a fully integrated contract. Ortendahl
v. Bergmann, 343 N.W.2d 309, 312 (Minn. App. 1984) (quotation omitted). Here, the
expert's testimony was not introduced to prove the parties' pre-contract
negotiations or to prove course of dealing.
His testimony was offered to assist the district court by comparing the
two roads based on a number of different criteria. The court considered the expert's testimony,
the parties' testimony and correspondence regarding their understanding of the
easement, and the parties' testimony regarding their own comparisons of the
existing, historic road and the newly constructed road. We conclude that the district court did not
abuse its discretion in considering the expert's testimony and in relying upon
parts of that testimony to aid it in its decision regarding whether the new
road was a "comparable alternative" to the historic road. II. As
respondents aptly note, the "crux of this appeal is [appellants'] outright disagreement
with the District Court's factual findings that the New Road is not a
comparable alternative to the Historical Road."
"Findings of fact, whether based on oral or documentary evidence, shall
not be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses."
Minn.
R. Civ. P. 52.01. If there is reasonable
evidence to support the district court's findings, this court will not disturb
the decision of the district court on appeal.
Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999). The
district court issued a number of findings, including that the Weaver brothers
intended the term "comparable" to "mean that any newly located easement would
be equal to or better than the existing easement" and that any newly located
easement did not have to be identical to the existing easement. The court further found that the parties'
correspondence indicated that they "were concerned that the size and quality of
any newly located easement be equal to the size and quality of the existing
easement." The court then made a number
of findings that compared the existing easement with the proposed easement in
terms of width, construction materials, layout, visibility, and speeds of
travel. Based on these findings, the
court concluded that the proposed new easement is not comparable to the
existing easement, basically because the new easement has several sharp curves
and areas of low visibility that would create "a significant safety risk for
motorists and pedestrians." Admittedly,
the new road is wider and possibly better constructed than the two-rut,
sand-based historic road. And the new
road is connected to other access roads, as required by the language of the
1977 grant. But in determining whether
the new road is a comparable alternative, the district court properly
considered a number of other factors, including safety and convenience to its
users. As appellant James Weaver
admitted in his deposition testimony, he purposely designed the new road so
that it would be "tortuous" and "roundabout" to discourage people from crossing
his property. Because the district
court's finding that the new road is not a comparable alternative to the historic
road is reasonably supported by the testimony and evidence presented at trial,
we affirm that issue. III. Appellants
challenge the district court's determination that Cleland is entitled to an
"unrestricted deeded easement" over the historic road. Appellants argue that the district court
erred in finding that Cleland has a deeded easement over their property because
that finding is inconsistent with the court's ruling at summary judgment that
Cleland had a prescriptive easement and because evidence necessary to establish
a deeded easement was not presented either at summary judgment or at
trial. Respondents assert that the
district court determined that Cleland was entitled to a deeded easement at
summary judgment and that appellants are bound by that determination. Based
on our review of the record and of the parties' submissions, it appears that
substantial confusion existed over exactly what issues were being litigated
with respect to Cleland's claim to an easement over the historic road: appellants appeared to assume that evidence of
use was relevant to the scope of the prescriptive easement described by the
court on summary judgment, while respondents appeared to assume that evidence
of use or possession was relevant to whether the presumption of abandonment
under the Marketable Title Act was overcome. This
confusion over exactly what issues were decided at summary judgment and what
issues were litigated at trial is understandable, given the parties' failure to
follow the rules. See Minn. R. Gen. Pract. 115.03(d) (requiring party moving for
summary judgment to include recitation of undisputed facts in memorandum, and
party opposing motion to respond with recitation of disputed facts). And the district court added to the confusion
by failing to clarify the issues it decided on summary judgment or to
articulate the issues to be litigated at trial. Under
these circumstances, appellants are not precluded from challenging the district
court's determination that Cleland was entitled to an unrestricted deeded
easement based upon his chain of title.
Appellants filed a motion for amended findings or for a new trial on the
issue. And on appeal from a final
judgment, we may "review any order involving the merits or affecting the
judgment," including an order granting or denying summary judgment. See
Minn. R. Civ. App. P. 103.04 (appellate court may "review any order involving
the merits or affecting the judgment"); Financial
Relations Bd. v. Pawnee Corp., 308 Minn. 109, 112, 240 N.W.2d 565, 566-67
(1976). Cleland's claim to a deeded
easement must be supported in the record, whether in the documents submitted in
support of respondents' motion for summary judgment or in the evidence
submitted at trial. Respondents
insist that appellants have not challenged the authenticity of the documents submitted
by respondents in support of their motion for summary judgment. Those documents include a 1942 quit claim
deed in which Cleland's predecessors-in-interest conveyed certain property, but
"reserve[ed] to the grantors herein, the right to use as a driveway, the
driveway as now laid out over the said Lot Two of the premises as described
herein or another driveway to be agreed upon."
Other than the language in this 1942 deed, the record contains nothing
to establish the location of this "driveway" or to prove that this "driveway"
includes the disputed portion of the historic road that now runs through
appellants' property. Nor is there
anything in the record to establish whether another driveway was agreed upon
after 1942. While respondents point to statements
their attorney made in an affidavit and memorandum in support of their motion
for summary judgment, these statements are not sufficient to prove that Cleland
is entitled to a deeded easement as a matter of law. See David
F. Herr & Roger S. Haydock, 2 Minnesota
Practice § 56.17, at 305 (2004) (noting that attorney affidavits are
generally not favored as evidence to support summary judgment motion and that
affidavits should be limited to "providing foundation for undisputed documents
or attaching discovery documents [that] would otherwise be admissible, and
should not submit hearsay, improper opinions, arguments, and conclusory
statements"). Because the record fails
to support the district court's legal determination that Cleland has an
unrestricted deeded easement based on his chain-of-title, we reverse the
district court on that issue. That
leaves Cleland's claim to a prescriptive easement over the historic road. At summary judgment, the district court did
determine that Cleland was entitled to a prescriptive easement and included a
legal description of the location of that easement in its order. At trial, evidence was presented on the use
of that easement by Cleland and by his immediate predecessor-in-interest, his
grandmother Lois Bargen, from whom he obtained his parcel in 1995.[3] Because the district court made no findings
on the scope of Cleland's prescriptive easement, if any, we remand for
additional findings on that issue. Affirmed in part, reversed in part, and
remanded. * Retired judge
of the district court, serving as judge of the Minnesota Court of Appeals by
appointment pursuant to Minn. Const. art. VI, § 10. [1] The term "deeded easement" does not appear in
any Minnesota
case, published or unpublished. Cleland
appears to claim an easement by express grant or reservation based on his chain
of title. See Highway 7 Embers, Inc. v. Northwestern Nat'l Bank, 256 N.W.2d 271, 275 (Minn.
1977) (discussing easements by express grant). [2]
During oral arguments in this case, the panel sought additional information
from the parties regarding Cleland's deeded easement. Respondents have submitted a supplemental
brief and appendix, while appellants have submitted an informal brief. We have reviewed these additional submissions
and have considered them in reaching our decision. [3] Confusion also exists because the evidence
that was presented at trial could be viewed as tending to prove the scope of
Cleland's prescriptive easement, which requires examination of Cleland's "use"
of the easement, or as relevant to the issue of whether Cleland "possessed" the
easement so as to avoid the presumption of abandonment under the Marketable
Title Act. The concepts of "use" and
"possession" are similar and evidence tending to prove either concept may overlap. Cf.
Lindberg v. Fasching, 667 N.W.2d 481, 485-87 (Minn. App. 2003) (reversing grant of summary
judgment that dismissed claim of easement by express grant when genuine issue
of material fact existed as to whether easement holder's use and occupancy of easement
rose to level of "possession" under Marketable Title Act), review denied (Minn. Nov. 18, 2003).
IN COURT OF APPEALS
A06-1373
Respondents;
Charles C. Cleland,intervenor,
Respondent,
vs.
James C. Weaver, et al.,
Appellants;
Daniel J. Kinsella,et al.,
Defendants.
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