Hickerson v. Bender, No. C7-92-2463
| Decision Date | 25 May 1993 |
| Docket Number | No. C7-92-2463 |
| Citation | 500 N.W.2d 169 |
| Parties | Perry John HICKERSON, Jr., et al., Appellants, v. Edgar BENDER, et al., Respondents. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
More than two decades of nonuse of an ingress-egress easement, with no objection to numerous permanent obstructive improvements to the real property, is sufficient evidence of abandonment of the easement.
Richard H. Breen, Breen & Person, Ltd., Brainerd, for appellants.
Raymond A. Charpentier, Charpentier & Lange, Brainerd, for respondents.
Considered and decided by DAVIES, P.J., and RANDALL and HARTEN, JJ.
Appellants Mary and Perry John Hickerson, Jr. ("Jack" Hickerson) challenge the trial court's determination that an ingress-egress easement to a lake was extinguished by abandonment and adverse possession. We affirm.
In 1955, George and Lucille Fagan, owners of Lot Twenty, H.R. White First Subdivision of Gull Lake Shores in Cass County, conveyed a parcel of property on nearby Ruth Lake to Anna Marie and Roy Becker. The deed also granted the following easement at issue in this case An easement appurtenant in fee simple for the purpose of ingress to and egress from Gull Lake over the easterly Fifteen (15) feet of Lot Twenty (20), H.R. White First Subdivision of Gull Lake Shores * * *, on condition that this easement shall perpetually benefit all of the property heretofore and now owned by the grantors in Cass County, Minnesota, the present and future owners of any part of such property so owned by the grantors being entitled to share equally in this easement.
In 1957, the Beckers conveyed the property and easement to Cline Tincher, who conveyed it to Kenneth and Ruth Swisher in 1961. In 1990, the Swisher heirs conveyed the Ruth Lake parcel and the Gull Lake easement to appellants.
As to Lot Twenty on Gull Lake, in 1958 the Fagans conveyed the lot to respondents Edgar and Virginia E. Bender. The Benders erected a house and garage and made other improvements between 1958 and 1962. The Fagan to Bender deed made no mention of the easement, nor did a subsequent corrective deed in 1980. The Benders's garage and improvements--a poured concrete patio, stone barbecue, tree planters, a raised concrete block retaining wall at the top edge of the beach, numerous mature trees, and shrubs--materially block the easement. (See appendix.) No one disputes that passage through the easement would now be arduous and impeded. 1
At trial, Edgar Bender and several neighbors testified that they had not seen anyone make use of the easement during the period of the Bender's residence, which began in 1959. However, Dr. Marion Swisher testified by deposition that he and his father had walked the easement "within an arm's length" of the Bender house during the Christmas holiday of 1967.
Virginia Bender acknowledged that on one occasion in the winter of 1967, she had observed a party from the Swisher residence trek to Gull Lake, but on unplatted government land adjoining Lot Twenty. Robert Alderman testified by deposition that he had walked the easement once with Kenneth Swisher in "the late '70's." Jack Hickerson testified that he walked the easement several times in 1991 after acquiring the Swisher property.
The Hickersons commenced suit, seeking an order
that [the] easement is valid, and that [the Benders] shall permanently cease * * * interfering with [the Hickersons'] use of [the] easement, and * * * [for] judgment in the amount of $10,000.00 * * * for [the Hickersons'] costs [of] enforcing their rights.
The Hickersons also sought to keep a boat on the property. Following a bench trial in August 1992, the trial court adjudged that the easement had been extinguished by both abandonment and adverse possession prior to the Hickersons' acquisition. No finding was made that the easement had been used at any time.
Did the trial court err in determining that the easement was extinguished by both abandonment and adverse possession?
In an appeal from a judgment where no motion for a new trial was made, review is limited to "whether the evidence sustains the findings of fact and whether [the] findings sustain the conclusions of law and the judgment." Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).
1. Abandonment. Abandonment of an easement is generally a question of fact. Simms v. William Simms Hardware, Inc., 216 Minn. 283, 293, 12 N.W.2d 783, 788 (1943).
To have the effect of divesting title and reinvesting the same in the grantor of the easement, the abandonment must amount to something more than mere [nonuse], for there must appear to have been an intentional relinquishment of the rights granted. * * *. This intention need not appear by express declaration, but may be shown by acts and conduct clearly inconsistent with an intention to continue the use of the property for the purposes for which it was acquired.
Norton v. Duluth Transfer Ry., 129 Minn. 126, 131-32, 151 N.W. 907, 909 (1915). The railway company's complete removal of tracks in Norton, with ten years of nonuse, proved intent to abandon. Id. at 132-33, 151 N.W. at 909.
Here, the trial court determined that the Hickersons' predecessors' (Swishers') acquiescence to the Benders' improvements was evidence of intent to abandon under Simms. See Simms, 216 Minn. at 292-93, 12 N.W.2d at 787 ().
The Hickersons argue, however, that requisite affirmative acts of abandonment are absent in the present case. See Richards Asphalt Co. v. Bunge Corp., 399 N.W.2d 188, 192 (Minn.App.1987) (). The issue in Richards was whether the easement-holder's failure to object when railroad tracks were removed from the easement and his assistance in placing fill on the tracks was evidence of abandonment. Id. at 190. The Richards court held that there was no abandonment because of a factual finding that the fill was intended only as a temporary flood protection device. Id. at 192-93.
Nonetheless, the pervasiveness and permanency of the improvements here distinguish this case from Richards. We find this case is more...
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