Alvin v. Johnson

• Citation: 63 N.W.2d 22,241 Minn. 257
• Decision Date: 19 February 1954
• Docket Number: No. 36163,36163
• Parties: ALVIN et al. v. JOHNSON et al.
• Court: Supreme Court of Minnesota (US)

Page 22

63 N.W.2d 22

241 Minn. 257

ALVIN et al. v. JOHNSON et al.

No. 36163.

Supreme Court of Minnesota.

Feb. 19, 1954.

Syllabus by the Court.

1. A valid tax deed executed by the state of Minnesota, as grantor, does not extinguish an unrecorded easement for roadway across the property described in the tax deed, which easement was acquired by prescription prior to the tax assessment for which the property was forfeited to the state.

2. An easement is an incorporeal hereditament. An owner of the easement cannot protect his interest by a payment of taxes against the easement.

3. Hacklander v. Parker, 204 Minn. 260, 283 N.W. 406, distinguished.

4. L.1953, c. 493, did not change the law existing prior to the amendment so as to require a holding that under the prior law tax forfeiture proceedings cut off all easements, recorded or otherwise.

5. If recorded easements survive a tax title, easements by prescription do also.

Robert S. Parker, Cambridge, Louise A. Herou, and Larson, Loevinger, Lindquist, Freeman & Fraser, Minneapolis, for appellant.

S. Bernhard Wennerberg, and A. M. Bullis, Center City, for plaintiffs-respondents.

James M. McGuire, Rush City, for defendant-respondent.

MAGNEY, Commissioner.

Plaintiffs, Everett R. Alvin and Willis P. Koch, are the owners of real property, 40 feet wide, in the village of North Branch. A brick building occupies all of said property, except the south 15 feet. Defendant A. W. Johnson is the owner of property, 60 feet wide, directly to the west of that of plaintiffs, bordering lengthwise on a street. A brick building occupies this property except the south 15 feet thereof. A shed is also attached to the building. Defendant Aleck Nordquist is the owner of the property directly south of the properties of plaintiffs and Johnson. There is also a structure on this property, except the north 25 feet thereof. Plaintiffs claimed that they had acquired by prescription an easement for a roadway across the Johnson and Nordquist properties. In April 1949 Nordquist constructed a wire fence along the north and west lines of his property, thus preventing plaintiffs' use of their claimed easement. In November 1950 Johnson commenced excavating for the purpose of constructing an addition to his building. The construction of this addition would bar all ingress to and egress from the rear entrance of plaintiffs' building to the street. The plaintiffs thereupon brought this action to establish an easement in their favor in and to a roadway across the properties of defendants, to locate the position of the easement, and to enjoin defendants from obstructing the roadway and interfering with plaintiffs' use thereof. The court found that plaintiffs had acquired by prescription an easement for roadway over defendants' lands prior to 1926 and held that they were entitled to a free and unobstructed use thereof. Judgment was entered accordingly, and Nordquist appeals therefrom. Johnson did not appeal.

The property now owned by Nordquist was forfeited to the state of Minnesota in 1945 for nonpayment of taxes assessed against it in 1926. A certificate of forfeiture was properly recorded. In January 1946 the state sold the property to Nordquist's predecessor in title and executed to it a state tax deed.

1. The main question presented in this appeal is well stated by appellant. It is whether a valid tax deed executed by the state of Minnesota, as grantor, extinguishes and destroys an unrecorded easement across the property described in the tax deed, which easement was acquired by prescription prior to the tax assessment for which the property was forfeited to the state. Applying the question to the facts of this case, it can be stated: Did the tax deed issued by the state of Minnesota in 1945 for nonpayment of taxes assessed against the Nordquist property in 1926 extinguish and destroy the unrecorded easement for roadway which plaintiffs and their predecessors in title had acquired prior to 1925? Nordquist, of course, claims that it did and the plaintiffs that it did not.

The easement which plaintiffs acquired is an easement appurtenant, and the weight of authority is to the effect that an easement appurtenant is not extinguished by a sale and conveyance of the land subject to it for nonpayment of a tax assessed against such land. The cases cited in the footnote indicate the jurisdictions that support this view. ¹ Footnote 2 lists the cases and jurisdictions contra. ² Restatement, Property, § 509(2), states:

'An easement appurtenant is not extinguished by a sale and conveyance of the land subject to it for nonpayment of a tax assessed against such land.'

3 Cooley, Taxation (4 ed.) § 1494, uses this language:

'Ordinarily, a tax sale does not divest easements charged on the property sold. Thus, private easements of light, air and access of adjoining owners over the land sold are not extinguished by the tax-sale.'

The latest case coming to our attention is Engel v. Catucci, 91 U.S.App.D.C. 54, 197 F.2d 597, decided in May 1952 by the United States Court of Appeals, District of Columbia Circuit, in which the authorities are exhaustively reviewed. The court followed the majority rule and held that a tax deed after sale for District of Columbia taxes to a lot over which lay an easement of passageway created by deed and appurtenant to another lot did not extinguish the easement. In the District of Columbia, as stated in the opinion, a tax deed extinguishes all liens, encumbrances, and equities in and upon the parcel conveyed. The court said, 91 U.S.App.D.C. 56, 197 F.2d 599:

'* * *But an easement is an interest in land which has peculiar characteristics of its own, being neither an estate nor a lien, an encumbrance nor an equity, in the ordinary sense of those terms. An easement appurtenant to another lot, when created by conveyance, attaches to the possession of that other lot and 'follows it into whosesoever hands it may come."

Citing Restatement, Property, § 487, Comment a.

The court briefly stated the reasons given by the authorities for favoring the majority rule in language which we will quote since it covers the situation and would be difficult to improve upon. It said, 91 U.S.App.D.C. 56, 197 F.2d 599:

'The reasoning of the authorities holding that the easement survives the tax deed is, briefly, that when an easement is appurtenant to a dominant estate it attaches to that estate, being carved out of the servient estate; that the value of the dominant estate is increased by the existence of the easement and in effect thus includes the value of the easement; that, when a tax is paid upon the value of the dominant estate determined in this manner, a tax has in effect been paid upon the easement; that the tax upon the servient estate is upon a value lessened because of the existence of the easement; that a sale for nonpayment of that tax ought to be a sale of the lessened estate; that 'account can be taken of an easement appurtenant without increasing the complication of the tax process'; and that therefore a tax sale of a servient estate should pass title to that estate subject to the easement.'

The minority view is that the assessment for taxes is made against the land as an entirety without regard to the various divided interests therein and that, therefore, the purchaser of land at a tax sale receives a title from the state which is paramount against all other claims, titles, and equities and which is free from all easements and burdens thereon. The question has also been fully annotated in Annotation, 168 A.L.R. 529.

G.S.1923, § 1992, M.S.A. § 273.11, the statute in effect when the assessment was made, reads:

'All property shall be assessed at its true and full value in money. * * * but he (the assessor) shall value each article or description of property by itself, and at such sum or price as he believes the same to be fairly worth in money.'

How, this shall be done is set out in G.S.1923, § 1990, M.S.A. § 273.08, which imposes on the assessor the duty to 'actually view, when practicable, and determine the true and full value of each tract or lot of real property listed for taxation.' In determining what the value of the property to be assessed is, it is the duty of the assessor to take into consideration every proper element and factor affecting such valuation, Schleiff v. County of Freeborn, 231 Minn. 389, 43 N.W.2d 265, and in determining the true and full value of real property for tax assessment purposes, the ordinary market value must control. In re Taxes of Potlach Timber Co., 160 Minn. 209, 199 N.W. 968; In re Delinquent Real Estate Taxes, Waseca County, 182 Minn. 543, 235 N.W. 22. Appurtenant easements are factors definitely affecting values. When the assessment of what is now the Nordquist property was made in 1926, one of the elements and factors which the assessor under his duty was required to take into consideration was the fact that the property was burdened with an easement which materially reduced the value of the property; and in assessing the plaintiffs' property, it was the assessor's duty to take into consideration the additional value the property had by reason of the easement appurtenant. Taking that into consideration, naturally, a higher value would be found to exist. The value of the easement influenced the valuation placed upon the dominant tenement. In 3 Cooley, Taxation (4 ed.) § 1154, the author states:

'* * * The servient estate must be assessed at its value subject to the easements and the dominant estate at its value with the easements.'

An easement cannot be appurtenant to both the dominant and the servient tenement. The dominant tenement is taxed upon its value, and the easement appurtenant enhances that value. It cannot pass upon the tax sale of the servient tenement. The servient tenement is also taxed upon its value, which the easement has diminished. Taxes assessed against the servient tenement cover the property minus the easement...