Bode v. Bode

• Decision Date: 29 December 1992
• Docket Number: No. C7-92-714,C7-92-714
• Citation: 494 N.W.2d 301
• Parties: Louis BODE, Appellant, v. Myron BODE, et al., Defendants and Third-Party Plaintiffs, Respondents, v. Lynn BODE, Third-Party Defendant, Appellant.
• Court: Minnesota Court of Appeals

Page 301

494 N.W.2d 301

Louis BODE, Appellant, v. Myron BODE, et al., Defendants and Third-Party Plaintiffs, Respondents, v. Lynn BODE, Third-Party Defendant, Appellant.

No. C7-92-714.

Court of Appeals of Minnesota.

Dec. 29, 1992.

Syllabus by the Court

Where the location of an easement by necessity has not been established by agreement of the parties, the trial court has the power to establish the location in a place desired by the owner of the servient estate.

Robert M. Halvorson, Gislason, Dosland, Hunter, & Malecki, New Ulm, for appellants.

Bailey W. Blethen, Blethen, Gage & Krause, Mankato, for defendants and third-party plaintiffs, respondents.

Considered and decided by NORTON, P.J., and KALITOWSKI and HARTEN, JJ.

OPINION

NORTON, Judge.

FACTS

Ted Bode (Ted) owned a quarter section of farmland near Nicollet, Minnesota. In 1943, he sold 13 acres of this land to each of his brothers, Hilbert Bode (Hilbert) and Louis Bode (Louis). (See Figure 1.) Because Louis' tract had no access to any public road and was bounded on the north and east by the land of strangers, he drove his farm equipment across Ted's land to reach his tract. Louis usually took the shortest available route across the northern edge of Ted's property, but he sometimes took other paths across Ted's property. A field approach road was built at the northwest corner of Ted's land to provide access to both Hilbert's and Louis' fields. Beginning in 1970, Louis' son Lynn Bode (Lynn) rented Louis' tract and the northern half or so of Ted's tract. During this time, Lynn took a myriad of routes to reach Louis' tract and apparently treated all of the property as one parcel.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1988, Hilbert sold his tract to Myron and Joanne Bode (sometimes collectively referred to as Myron). The following year, Ted died and his tract of land passed to his heirs, Karen and James Rieland (collectively referred to as Karen). Karen offered Louis a two rod written easement on the north edge of the former Ted property. Louis refused the offer. Shortly thereafter, Karen and James sold their land to Myron and Joanne, who now owned the entirety of Ted's original land with the exception of Louis' landlocked tract. Included in the contract for deed was a clause in the encumbrance disclaimer section which provided for an easement for Louis, the location of which was to be determined by Myron.

In 1990, Myron offered Louis an easement across the north two rods of the Hilbert tract and to grade and maintain the new route. Arguing that this new path would still have drainage and other problems, Louis refused this agreement. When Lynn persisted in using the old route, Myron had him arrested for trespassing, and Lynn suffered $3500 in damages when he was unable to reach his crops. While trying to evade Myron's barriers, Lynn caused Myron damages of $300.

Louis brought this suit to establish an easement along his preferred route. While the matter was in litigation, Karen and Myron modified their contract for deed to eliminate the mention of Louis' easement.

After a bench trial, the trial court granted Louis an easement across the north two rods of the Hilbert tract, provided that Myron would make the new path passable for Louis' farm equipment. Louis appeals and demands an easement along the old route.

ISSUE

Did the trial court have the equitable power to locate an easement by necessity at a location preferred by the servient estate where there was evidence suggesting a lack of agreement as to a definite present location?

ANALYSIS

This is a classic case of an "easement by necessity." Under long-established common law, when a landowner conveys a portion of land that has no access to a public road, the owner of the purchased portion has a right of access across the retained lands of the grantor unless the conveying document explicitly disclaims any right of access. 3 Richard R. Powell, The Law of Real Property p 407 (1992) (hereafter Powell ); see Pine Tree Lumber Co. v. McKinley, 83 Minn. 419, 420, 86 N.W. 414, 415 (1901). ¹ The grant of this easement is implied in the grant of the parcel, and no further writing is needed to make it effective. Story v. Hefner, 540 P.2d 562, 566 (Okla.1975) (original grant satisfies statute of frauds).

All parties agree that Louis received an easement by necessity in 1943 from Ted. Myron now claims that because Louis refused to accept reasonable formal written easement offers to provide alternate access, the old easement was no longer "necessary."

An easement by necessity lasts only as long as the necessity. Dallas v. Farrington, 490 So.2d 265, 271 (La.1986); Niedfeldt v. Evans, 272 Wis. 362, 75 N.W.2d 307, 308 (1956). Necessity ceases when the owner of the dominant estate acquires a permanent legal right to public access to the estate. Id. 75 N.W.2d at 308-09 (easement terminates when new public road borders dominant estate); Fox Invs. v. Thomas, 431 So.2d 1021 (Fla.Ct.App.1983) (dominant estate owner acquires adjacent property that borders public way); Joines v. Herman, 89 N.C.App. 507, 366 S.E.2d 606 (1988) (dominant estate owner acquires easement across neighbor's land); see also City of Whitwell v. White, 529 S.W.2d 228 (Tenn.Ct.App.1974) (easement does not terminate when dominant estate owner has revocable license to cross neighbor's land). But see Taylor v. Hays, 551 So.2d 906 (Miss.1989) (necessity vanishes when reasonable alternate access is offered by neighbor).

Louis' easement did not terminate when he was offered other access. Because he refused the offers of alternate access, he never gained the legal right to use those alternate routes. Therefore, his original rights, whatever they were in 1943, are still intact. In addition, the rule and result are supported by public policy. If easements could be terminated by a mere offer of other access, the dominant estate owner would be forced to run the risk of losing all access to the property if a court eventually decided that the alternate access was reasonable. The dominant estate owner should not be forced to run this risk.

While there is no Minnesota law concerning the location of an easement by necessity, the law from other states is uniform and is deeply rooted in English common law. See Clark v. Cogge, 79 Eng.Rep. 149 (C.P. 1609). An easement by necessity is unique in that it has no definite location at the time it is created. Even when there is an existing roadway, that fact alone does not require the easement to be located there. Stair v. Miller, 52 Md.App. 108, 447 A.2d 109, 110 (1982). Instead, the key is whether the parties to the conveyance agree, explicitly or implicitly, that a particular route will be the location of the easement. Hines v. Hamburger, 14 A.D. 577, 43 N.Y.S. 977, 978-79 (1897) (agreement is implied if the usage is over a long time, in this case 35 years); Douglas v. Jordan, 232 Mich. 283, 205 N.W. 52, 54 (1925) (acquiescent use of bridge for 20 years established permanent right to use that bridge); Grobe v. Ottmers, 224 S.W.2d 487, 489 (Tex.Civ.App.1949) (15 years of continuous use established right to use particular road). Once such a route is agreed upon, the courts are without power to move the easement. Stair, 447 A.2d at 110.

Where there is no agreement, the location of the easement is established in this manner:

When no prior use of the way has been made, and the same is to be located for the first time, the owner of the land over which the same is to pass has the right to choose it, provided he does so in a reasonable manner, having due regard to the rights and interests of the owner of the dominant estate. But, if the owner of the land fail to select such way when requested, the party who has the right thereto may select a suitable route for the same, having due regard to the convenience of the owner of the servient estate.

McMillan v. McKee, 129 Tenn. 39, 164 S.W. 1197, 1198 (Tenn.1914); accord Ritchey v. Welsh, 149 Ind. 214, 48 N.E. 1031, 1033 (Ind.1898); Oliver v. Ernul, 277 N.C. 591, 178 S.E.2d 393 (1971).

The trial court made no finding concerning whether the parties or their predecessors had ever agreed upon any route, but a close examination of the record suggests that there was no agreement. In 1989, Louis refused an offer to locate the easement almost precisely in the place he is now demanding. In 1990, he refused an offer that put the easement in a new place, but which required Myron to grade and maintain the new road, responsibilities not normally imposed upon a servient estate owner. Reed v. Board of Park Comm'rs of Winona, 100 Minn. 167, 172, 110 N.W. 1119, 1120-21 (1907) (owner of dominant estate is responsible for maintenance of easement). Louis used his demanded route more than any other during the years 1943 to 1970, but he did use other routes during this time without objection from Ted. From 1970 to 1988, when much of Ted's land was rented by Lynn, the principal route used was far...