Lindberg v. Fasching, C7-03-242.

• Decision Date: 19 August 2003
• Docket Number: No. C7-03-242.,C7-03-242.
• Citation: 667 N.W.2d 481
• Parties: David LINDBERG, Respondent, v. Michael C. FASCHING, M.D., Appellant.
• Court: Minnesota Court of Appeals

667 N.W.2d 481

David LINDBERG, Respondent, v. Michael C. FASCHING, M.D., Appellant.

No. C7-03-242.

Court of Appeals of Minnesota.

August 19, 2003.

Karl L. Cambronne, Jeffrey D. Bores, Becky L. Erickson, Chestnut & Cambronne, P.A., Minneapolis, MN, for respondent.

David F. Herr, Geoffrey P. Jarpe, Kai H. Richter, Maslon, Edelman, Borman & Brand, LLP, Minneapolis, MN, for appellant.

Considered and decided by STONEBURNER, Presiding Judge, HARTEN, Judge, and MINGE, Judge.

OPINION

MINGE, Judge.

Appellant challenges a summary judgment determination that an easement over his land is valid despite the lack of a filed notice of the easement, which is required by the Marketable Title Act. The district court found that because of the scope of the easement, and because respondent and his predecessors had used the easement, they had had adequate possession of the premises to meet the exception to the filed-notice requirement of the Marketable Title Act. Because there is a genuine issue of material fact whether the use of the easement constituted "possession" within the requisite 40-year period and whether the easement had been abandoned, we reverse the grant of summary judgment and remand for trial.

FACTS

Appellant Michael Fasching and respondent David Lindberg own adjoining properties on Lake Minnetonka. The properties are not registered Torrens properties. In the early part of the 20th century, prior owners of the properties executed an agreement that established an easement but incorrectly described its location. On October 14, 1950, the parties' predecessors in title signed an easement agreement that corrected the earlier agreement and provided that each landowner received a "perpetual right of way for road purposes" over a ten foot strip of the other's property. The agreement was recorded on December 26, 1950, and it provides each landowner with access to parts of Lake Minnetonka that the other landowner's property borders. In this case, only that part of the agreement that grants Lindberg rights over Fasching's property is at issue.

In February 2002, Lindberg brought suit asserting his easement rights, alleging that Fasching "placed objects on the easement property—including several trees, a fence, and small boulders—that illegally interfere with [Lindberg's] reasonable use of the easement," and seeking removal of the same.

Both parties moved for summary judgment. Fasching argued that the Marketable Title Act, Minn.Stat. § 541.023, subd. 1 (2002), barred enforcement of the easement because the easement agreement was more than 40 years old, and neither Lindberg nor his predecessors ever filed the statutory notice required by the Act. Fasching also argued that Lindberg had abandoned the easement according to common-law principles of abandonment.

Lindberg testified that he knew of the easement when he bought the property, that he used the easement to access the lake, and that he walked on the easement "an average of five or six times" in a given year. Lindberg asserted that he used the easement year-round for walking, riding his snowmobile, and riding on a sled. Lindberg also testified that before Fasching bought his property, Lindberg "regularly used the easement, without problems"; that at one point, a corner of the easement had been covered with blacktop, but that Fasching had ripped out the blacktop; that the rest of the easement has always been covered with grass and dirt; that there has never been gravel over the easement; that although a maple tree is growing within the easement, he "can go around this tree and still use the easement"; that the tree apparently pre-dates the easement agreement; and that as of November 2002, there was brush growing in the easement.

Scott Prochnow, a previous owner of Lindberg's property, asserted that he used the easement by walking across it to access the lake for swimming, windsurfing, and going back and forth from his boat to his house. Prochnow also reported that he used the easement during the winter months for cross-country skiing.

Fasching testified that although he was aware of the recorded easement agreement when he bought his property, he did not know whether the easement was valid and that at the time he purchased his property, he concluded that the easement had never been used because of the maple tree, brush, debris, and two stumps in the middle it. Fasching continued that he never asked Lindberg whether he had ever used or was using the easement and that although he knew Lindberg had driven his snowmobile over the easement on at least one occasion, the large maple tree in the easement made it impossible to drive a snowmobile and stay within the boundaries of the easement.

The district court granted summary judgment in favor of Lindberg. The court concluded that although Lindberg had not filed the requisite notice under the Marketable Title Act, the possession exception of the Act applied. The district court also concluded that Lindberg and his predecessors did not abandon the easement according to the common law because there was no evidence of an intent to abandon the easement.

ISSUES

1. Did the district court err by granting summary judgment that Lindberg's claimed easement met the possession exception in the Marketable Title Act?

2. Did the district court err by granting summary judgment that Lindberg did not abandon the easement according to the common law?

ANALYSIS

The district court should grant summary judgment when there is no genuine issue of material fact and either party is entitled to a judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact, and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990)

.

We view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio, 504 N.W.2d at 761. Even though an appellate court may disagree with the trial court's analysis of some issues, summary judgment will be affirmed if it can be sustained on any grounds. Myers v. Price, 463 N.W.2d 773, 775 (Minn.App.1990),review denied (Minn. Feb. 4, 1991). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, which we review de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

I.

We first address Fasching's argument that summary judgment should not be granted in favor of Lindberg because Lindberg's easement was extinguished by operation of the Marketable Title Act. The Marketable Title Act provides, in part:

As against a claim of title based upon a source of title, which source has then been of record at least 40 years, no action affecting the possession or title of any real estate shall be commenced * * * to enforce any right, claim interest, incumbrance or lien founded upon any instrument event or transaction which was executed or occurred more than 40 years prior to the commencement of such action, unless within 40 years after such execution or occurrence there has been recorded * * * a notice * * * setting forth [the basis for the claim].

Minn.Stat. § 541.023, subd. 1 (2002). The purpose of notice is to confirm the continuation of an interest in property and to eliminate stale claims that clutter the title. Wichelman v. Messner, 250 Minn. 88, 98, 83 N.W.2d 800, 812 (1957). According to the statute, "[a]ny claimant * * * barred by the provisions of this section shall be conclusively presumed to have abandoned" all interests created. Minn.Stat. § 541.023, subd. 5 (2002). The provisions of the statute, however, do not apply to "bar the rights of any person * * * in possession of real estate." Id., subd. 6 (2002).

Fasching argues that an easement, by definition, is incapable of possession by the easement holder. For support, Fasching relies on the absence of any reported decision finding that an easement holder's possession of an easement is sufficient under the Marketable Title Act. But neither this court nor the Minnesota Supreme Court has concluded that it is impossible for an easement holder to be in possession of the easement as required by the Act. Instead, easement controversies have been discussed in a fashion that assumes that in appropriate circumstances, use of an easement would constitute "possession" under the statute. We do not accept Fasching's argument that an easement is impossible of possession.

In Caroga Realty Co. v. Tapper, the Minnesota Supreme Court concluded that possession of the easement in question did not rise to the level required by the Marketable Title Act. Caroga Realty Co. v. Tapper, 274 Minn. 164, 178-79, 143 N.W.2d 215, 225-26 (1966). The court held that the level of possession required by the Marketable Title Act is possession that is "so notorious as to be considered adverse possession." Id. at 179, 143 N.W.2d at 226. The court noted that possession under the Act must be

actual, open, visible, and exclusive possession inconsistent with the title of the apparent owner by the record. The possession must be clear, unequivocal, and unambiguous. It is insufficient if equivocal, temporary, or occasional. It must be of a character which would put a prudent person upon inquiry.

Id.

Ten years after Caroga, in Township of Sterling v. Griffin, the Minnesota Supreme Court held that a township was not in possession of a claimed town road within the meaning of the Act. Township of Sterling v. Griffin, 309 Minn. 230, 237-38, 244 N.W.2d 129, 134 (1976). In Sterling, the court defined possession under the Act as use that is sufficient to provide notice of the possessor's interest in the property. Id. at 236, 244 N.W.2d at 133. The court also addressed easements and noted that in determining whether a party was in possession of an easement, "due regard must be...