Burns v. Plachecki

• Decision Date: 25 October 1974
• Docket Number: No. 44006,44006
• Citation: 223 N.W.2d 133,301 Minn. 445
• Parties: M. J. BURNS, Respondent, v. Lorence PLACHECKI, Deceased, et al., Defendants, Delano Granite, Inc., et al., Appellants.
• Court: Minnesota Supreme Court

Page 133

223 N.W.2d 133

301 Minn. 445

M. J. BURNS, Respondent, v. Lorence PLACHECKI, Deceased, et al., Defendants Delano Granite, Inc., et al., Appellants.

No. 44006.

Supreme Court of Minnesota.

Oct. 25, 1974.

Syllabus by the Court

1. In order to obtain an easement by prescription it is essential that the user be hostile, or adverse, and under a claim of right, and that it be actual, open, continuous, and exclusive.

2. A user will be presumed to be under a claim of right and adverse if it is shown that it was open, visible, continuous, and unmolested for the required period of 15 years, inconsistent with the rights of the owner of the servient estate and under circumstances from which the owner's knowledge and acquiescence may be inferred.

3. However, where a claimant to a prescriptive easement has failed to prove that the initial user was hostile, he may not establish the hostile character of the initial user by tacking on a second user which by inference or presumption was permissive because of the close family relationship between the owners of the two estates.

Murphy & Hoolihan and Thomas J. Murphy, St. Cloud, for appellants.

Michael H. Donohue and Richard J. Rawlings, St. Cloud, for respondent.

Heard before KNUTSON, C.J., and KELLY, TODD, and SCOTT, JJ., and considered and decided by the court en banc.

KELLY, Justice.

Plaintiff commenced this action to determine adverse claims pursuant to Minn.St. c. 559. Defendant Delano Granite, Inc., the only answering defendant claiming any adverse rights, asserted easement rights in plaintiff's land appurtenant to an adjacent tract of land owned by Delano. Delano and other defendants who had joined in its answer appeal from a judgment that plaintiff is owner in fee of the described real estate and that Delano has no easement therein. We affirm.

The tract of land which is the subject of this action ¹ was acquired in 1916 by one Lorence Plachecki as a home and farm. At that time a quarry was being operated on the adjacent land by one of defendant's predecessors in title, which operation involved the pumping of water onto the Plachecki farm. The record does not clearly establish how long the quarry had been operating prior to 1916, nor whether the quarrying continued between 1916 and 1924, the year the land with the quarry was purchased by five sons of Lorence Plachecki. One of those sons, Frank Plachecki, testified in this action that the quarry was not in operation when the land was purchased by him and his brothers.

The Plachecki brothers operated the quarry from 1924 to 1952, during which time water was again pumped out and allowed to flow onto the adjacent Plachecki farm. Frank testified that his father's express permission for this flowage was not sought because '(t)here was no need of it. He was happy that we were in business.'

Following Lorence Plachecki's death in 1945, the Plachecki farm was conveyed to a third party ² and in 1952 was acquired by plaintiff. Delano purchased the adjacent quarry from the Plachecki brothers in 1953. The quarry was inactive from 1953 to 1961 but has been in operation each quarrying season since, with water once again being pumped onto the adjacent farm.

Delano contends on this appeal that it holds a prescriptive easement to discharge water from its quarry onto and across plaintiff's adjacent land. Delano argues that the facts give rise to a presumption that the original user was adverse and under a claim of right and that the sons' user beginning in 1924 can be tacked to the original user to reach the 15-year prescriptive period. For the purpose of tacking, Delano contends, the sons' user was adverse because the adverse character of the original user is presumed to continue until unequivocally changed.

Plaintiff argues that there is no evidence to establish the adverse character of the original user. Moreover, the Plachecki sons' user was with their father's permission and hence cannot give rise to a prescriptive right. This permission, contends plaintiff, can be concluded from Frank Plachecki's testimony, or can be presumed from the close family relationship between the owners of the two estates.

The principal issues are: (1) Whether the evidence compels a finding, either directly or by presumption, that the user originated adversely, and, if so, (2) whether the adverse character of the original user persists when the titles to the servient and dominant estates pass to respective members of one family. We hold that the evidence reasonably sustains a finding that the original user was not adverse. Since this holding disposes of the first issue in the negative, we need not discuss the second.

1. The rules of adverse user that apply in cases of title by adverse possession also apply, with exceptions not relevant here, in cases of easements by prescription. Romans v. Nadler, 217 Minn. 174, 14 N.W.2d 482 (1944). The essentials of a user as a basis for a prescriptive easement are that it be hostile, or adverse, and under a claim of right, and that it be actual, open, continuous, and exclusive.

2.--3. Delano correctly states the rule that a user will be presumed to be under a claim of right and adverse ³ if a claimant has shown the user to have been open, visible, continuous, and unmolested for the required period of 15 years, inconsistent with the rights of the owner of the servient estate and under...