Jeurissen v. Harbeck
| Decision Date | 26 March 1964 |
| Docket Number | 39097,Nos. 39096,s. 39096 |
| Citation | 127 N.W.2d 437,267 Minn. 559 |
| Parties | Joseph H. JEURISSEN et al., Appellants, v. Walter C. HARBECK et al., Respondents. |
| Court | Minnesota Supreme Court |
John A. Fahey, Chaska, for appellants.
Lindmeyer & Lindmeyer, Julius A. Coller, II, Shakopee, for respondents.
Appeal from an order of the district court dissolving a temporary injunction and dismissing plaintiffs' cause of action instituted on the theory that they had acquired a prescriptive easement over real estate owned by defendants. The order is based upon the grounds: (1) That plaintiffs failed to prosecute the action and to bring it on for trial; (2) that no justiciable controversy is presented; and (3) that the proceedings are barred by a judgment entered in an action to quiet title.
We do not find support in the record for the order of dismissal.
1. Plaintiff Joseph H. Jeurissen avers that the action which was commenced May 25, 1961, was placed on the district court calendar 'but that it has never been called for trial to his knowledge and that he is ready and willing to have the matter tried by the court at any time.' A case of the type here involved should not be dismissed by the court for want of prosecution unless it has first been called for trial. Nyberg v. Cambridge State Bank, 245 Minn. 312, 72 N.W.2d 345.
2. An agreement dated September 15, 1959, reads in part as follows:
This agreement pertains to the easement here involved but does not conclusively establish that the Jeurissens acknowledged a superior right on the part of the defendants within the prescriptive period. The affidavit of Joseph H. Jeurissen dated June 7, 1961, reflects that in 1943 he took over his predecessor in title's right to the dominant estate and claim to the easement and has not abandoned it. See, Watkins v. Peck, 13 N.H. 360, 40 Am.Dec. 156; Weed v. Keenan, 60 Vt. 74, 13 A. 804; Bridle Trail Assn. v. O'Shanick (Mo.App.) 290 S.W.2d 401; 28 C.J.S. Easements § 13f, notes 65 to 68.
3. Defendants Robert G. Thielen and Eleanor M. Thielen obtained a judgment entered November 6, 1953, by the terms of which they are declared to be the sole owners in fee of some of the real estate traversed by plaintiffs' claimed prescriptive easement. Although the judgment there concludes that the defendants 'have no right, title, estate, interest, lien, claim or demand in and to the above described real estate or any part thereof,' and the judgment by its terms is effective against the defendants named and 'all other persons...
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