Washington County District Court File No. 82-C7-06-2146
The opinion of the court was delivered by: Rodenberg, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Rodenberg, Judge.
In this appeal following a supreme court decision reversing and remanding a previous award of summary judgment against appellants, appellants argue that the district court erred by again granting respondents' motion for summary judgment. Because the additional evidence developed following remand did not materially alter the facts presented to the supreme court, we reverse and remand for trial.
This case arises from an application by respondents Anthony Sampair and Laurie Sampair to register a lakeshore property in Washington County as Torrens property under Minnesota Statutes Chapter 508 (2012). Respondents are the present owners of the property. Appellants Josephine Berg Simes, James Berg, and the estate of Frima Bender own nonlakeshore property in the area and claim ownership of an express easement to access White Bear Lake across respondents' property. Appellants' easement was deeded to their predecessors in interest in 1909. A number of other easements were also granted over respondents' property in the early twentieth century. Respondents contend that appellants' easement should be extinguished by operation of the Minnesota Marketable Title Act (MTA). See generally Minn. Stat. § 541.023 (2012).
This case was the subject of a prior supreme court decision which affirmed the district court's grant of summary judgment against the holders of the other easements. See generally Sampair v. Vill. of Birchwood, 784 N.W.2d 65 (2010). However, with respect to appellants, the supreme court concluded that, while "[t]he possession alleged in the Simes affidavits is not described in any detail" and "[a] trier of fact might ultimately find that . . . appellants' claimed use of the easement is not credible," the affidavits "raise genuine issues of material fact as to the possession of [appellants] during the entirety of the possession period." Id. at 76. Accordingly, the supreme court reversed the award of summary judgment as to appellants and remanded for further proceedings. Id.
As relevant to the remaining claim of respondents after the supreme court's decision, a deed dated August 30, 1909, grants the owners of real property now owned by appellants an appurtenant easement over real property now owned by respondents. The easement granted the owners of the dominant estate a right of way over the servient estate "for the purpose of giving said grantee access to the shore of White Bear Lake for the purpose of boating and bathing." Ms. Berg Simes' parents acquired the dominant estate sometime in the early 1940s.
In a 2008 affidavit, Ms. Berg Simes asserted that her family has used the dominant estate as a summer home for the past 60 years. She stated that "she does not remember a year in which the Easement was not used by a member of the Berg family or their guests for purposes of accessing White Bear Lake."
In addition, Ms. Berg Simes submitted an affidavit in favor of her sister, Frima Bender, who also held real property with an easement over the property.*fn1 In this affidavit, Ms. Berg Simes stated that she had "seen [her] sister use the lakeshore easement continuously over the past sixty years."
In an affidavit, Mr. Berg stated that his family has used the dominant estate as a summer residence for his entire life and that his first visit to the property was as a newborn in the early 1960s. Mr. Berg asserted that "for as long as the Berg family has owned the property . . . they have, every year, used the Easement for the purpose of accessing the lake and their boats on the lake." He asserted that he "has had occasion numerous times over the past forty years, to witness members of the Berg family, himself included, use the easement for purposes of accessing their boats and the shore of White Bear Lake." Mr. Berg's affidavit also ...