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Lindberg v. Fasching

August 19, 2003

DAVID LINDBERG, RESPONDENT,
v.
MICHAEL C. FASCHING, M.D., APPELLANT.



Hennepin County District Court File No. CT024380, J901554521, J601551950

Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Minge, Judge.

SYLLABUS BY THE COURT

An existing easement can meet the requirement of "possession" in the Marketable Title Act, Minn. Stat. § 541.023, subd. 6 (2002), if its use would put a prudent person on inquiry of its continued existence.

If there is a genuine issue of material fact whether a dominant landowner so used an easement as to constitute possession under the Marketable Title Act, summary judgment should not be granted.

The opinion of the court was delivered by: Minge, Judge

Reversed and remanded

OPINION

Appellant challenges a summary judgment determination that an easement over his land is valid despite the lack of a filed notice of the easement, which is required by the Marketable Title Act. The district court found that because of the scope of the easement, and because respondent and his predecessors had used the easement, they had had adequate possession of the premises to meet the exception to the filed-notice requirement of the Marketable Title Act. Because there is a genuine issue of material fact whether the use of the easement constituted "possession" within the requisite 40-year period and whether the easement had been abandoned, we reverse the grant of summary judgment and remand for trial.

FACTS

Appellant Michael Fasching and respondent David Lindberg own adjoining properties on Lake Minnetonka. The properties are not registered Torrens properties. In the early part of the 20th century, prior owners of the properties executed an agreement that established an easement but incorrectly described its location. On October 14, 1950, the parties' predecessors in title signed an easement agreement that corrected the earlier agreement and provided that each landowner received a "perpetual right of way for road purposes" over a ten foot strip of the other's property. The agreement was recorded on December 26, 1950, and it provides each landowner with access to parts of Lake Minnetonka that the other landowner's property borders. In this case, only that part of the agreement that grants Lindberg rights over Fasching's property is at issue.

In February 2002, Lindberg brought suit asserting his easement rights, alleging that Fasching "placed objects on the easement property–including several trees, a fence, and small boulders–that illegally interfere with [Lindberg's] reasonable use of the easement," and seeking removal of the same.

Both parties moved for summary judgment. Fasching argued that the Marketable Title Act, Minn. Stat. § 541.023, subd. 1 (2002), barred enforcement of the easement because the easement agreement was more than 40 years old, and neither Lindberg nor his predecessors ever filed the statutory notice required by the Act. Fasching also argued that Lindberg had abandoned the easement according to common-law principles of abandonment.

Lindberg testified that he knew of the easement when he bought the property, that he used the easement to access the lake, and that he walked on the easement "an average of five or six times" in a given year. Lindberg asserted that he used the easement year-round for walking, riding his snowmobile, and riding on a sled. Lindberg also testified that before Fasching bought his property, Lindberg "regularly used the easement, without problems"; that at one point, a corner of the easement had been covered with blacktop, but that Fasching had ripped out the blacktop; that the rest of the easement has always been covered with grass and dirt; that there has never been gravel over the easement; that although a maple tree is growing within the easement, he "can go around this tree and still use the easement"; that the tree apparently pre-dates the easement agreement; and that as of November 2002, there was brush growing in the easement.

Scott Prochnow, a previous owner of Lindberg's property, asserted that he used the easement by walking across it to access the lake for swimming, windsurfing, and going back and forth from his boat to his house. Prochnow also reported that he used the easement during the winter months for cross-country skiing.

Fasching testified that although he was aware of the recorded easement agreement when he bought his property, he did not know whether the easement was valid and that at the time he purchased his property, he concluded that the easement had never been used because of the maple tree, brush, debris, and two stumps in the middle it. Fasching continued that he never asked Lindberg whether he had ever used or was using the easement and that although he knew Lindberg had driven his snowmobile over the easement on at least one occasion, the large maple tree in the easement made it impossible to drive a snowmobile and stay within the boundaries of the easement.

The district court granted summary judgment in favor of Lindberg. The court concluded that although Lindberg had not filed the requisite notice under the Marketable Title Act, the possession exception of the Act applied. The district court also concluded that Lindberg and his predecessors did not abandon the easement according ...


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