McCuen v. McCarvel
| Decision Date | 20 January 1978 |
| Docket Number | No. 47553,47553 |
| Citation | 263 N.W.2d 64 |
| Parties | Harry McCUEN, et al., Appellants, v. Joseph McCARVEL, et al., Respondents. |
| Court | Minnesota Supreme Court |
Brecht, Hedeen & Hughes and Laurence B. Hughes, Worthington, for appellants.
LaVelle, Darling & LaVelle and Robert A. Darling, Worthington, for respondents.
Considered and decided by the court without oral argument.
Plaintiffs, owners of the southeast quarter of Section 14, Lorain Township, Nobles County, brought this action against defendants, owners of the northeast quarter of the section, claiming that defendants have wrongfully obstructed drainage of surface waters from plaintiffs' farm and seeking an order requiring defendants to reestablish such drainage. Plaintiffs appeal from a judgment dismissing their action with prejudice. We affirm.
Prior to 1971 a town road which had been established 100 years earlier ran along the east line of the section. Surface waters flowed off plaintiffs' land to the north and were carried off in the west ditch of the road along defendants' land. In 1967 and 1968, after acquiring 17 acres along the north boundary of plaintiffs' farm and a small strip along the south boundary of defendants' tract, the state constructed a segment of Interstate Highway No. 90 (I-90), placing culverts under the freeway so that surface waters from plaintiffs' land could drain into the north ditch of I-90, then east to the town road, and north in the west ditch of the town road.
Construction of I-90 severed and "deadended" the town road. Consequently, in early 1971, plaintiff Harry McCuen, who was the town clerk, initiated proceedings pursuant to Minn.St. 164.07 to vacate the road. McCuen himself signed the petition required by the statute and obtained signatures from other landowners, including defendant H. Virgil Richter, who lived on the northeast quarter of Section 14. Defendant Joseph McCarvel, who lived too far from the road to petition for its vacation, signed the petition as a witness. McCuen said nothing to either defendant about drainage when he asked them to sign the petition.
The petition was unopposed. After compliance with the provisions of Minn.St. 164.07, the town board issued an order vacating the road on March 25, 1971. The order did not require preservation of the ditches along the road although § 164.07, subd. 3a, provides that if the board finds that the ditches of a road which is the subject of vacation proceedings are essential for surface drainage of adjacent lands or highways, it may order the road vacated but provide that the town retain access for the purpose of maintaining the ditches.
Following issuance of the order, defendants and the owners of the northwest quarter of Section 13 filled the ditches and leveled the road between their farms. In this action plaintiffs contend that they have acquired an easement by prescription over the area on defendants' farm formerly occupied by the west ditch of the road and that defendants have wrongfully and unlawfully obstructed the natural flow of surface water from plaintiffs' farm by filling the ditch. We are required to conclude, as did the trial court, that plaintiffs did not acquire an easement and failed to prove the claimed obstruction of the normal and natural flow of surface water from their land.
To establish an easement by prescription a party must prove user for the prescriptive period of 15 years and must prove that the user was hostile, actual, open, continuous, and exclusive. Burns v. Plachecki, 301 Minn. 445, 223 N.W.2d 133 (1974); Romans v. Nadler, 217 Minn. 174, 14 N.W.2d 482 (1944). Plaintiffs presented no evidence that the ditch was a natural depression before the town road was constructed, so their predecessors in title could not have acquired an easement by prescription prior to construction of the town road....
To continue reading
Request your trial
-
Kiely v. Graves
...1099 (1932) (concluding that land dedicated to a public use may not be acquired by adverse possession against the state); McCuen v. McCarvel, 263 N.W.2d 64 (Minn.1978) (finding plaintiffs could not acquire an interest adverse to the public's easement rights prior to vacation of the town roa......
-
Barth v. Stenwick
...easement must show that its use of the land "was hostile, actual, open, continuous, and exclusive" for 15 years. McCuen v. McCarvel, 263 N.W.2d 64, 65 (Minn.1978). The township asserts that the two affidavits it submitted from residents claiming to have used Sand Beach establish "the public......
-
Heuer v. County of Aitkin, C0-01-2121.
...our conclusion that the statute prohibits establishment of a prescriptive easement in land dedicated to public use. In McCuen v. McCarvel, 263 N.W.2d 64 (Minn.1978), this court rejected a contention that claimants had acquired a prescriptive easement over an area of the defendants' land for......
-
Fischer v. City of Sauk Rapids
...This court has continued to interpret Minnesota's statute to protect most public lands against adverse possession. McCuen v. McCarvel, 263 N.W.2d 64 (Minn.1978) (no adverse possession of a drainage ditch is possible prior to vacation of the town road); Neill v. Hake, 254 Minn. 110, 93 N.W.2......