Mougey Farms v. Kaspari

• Decision Date: 04 June 1998
• Docket Number: No. 970373,970373
• Citation: 579 N.W.2d 583
• Parties: MOUGEY FARMS, Plaintiff, Appellant and Cross-Appellee, v. Chris KASPARI, David Kaspari, Sarah Kaspari, Defendants, Appellees and Cross-Appellants, and North Dakota State Engineer David A. Sprynczynatyk, Defendant. Civil
• Court: North Dakota Supreme Court

Page 583

579 N.W.2d 583

1998 ND 118

MOUGEY FARMS, Plaintiff, Appellant and Cross-Appellee, v. Chris KASPARI, David Kaspari, Sarah Kaspari, Defendants, Appellees and Cross-Appellants, and North Dakota State Engineer David A. Sprynczynatyk, Defendant.

Civil No. 970373.

Supreme Court of North Dakota.

June 4, 1998.

Kip M. Kaler, of Kaler Law Office, Fargo, for plaintiff, appellant and cross-appellee.

Benjamin E. Thomas (argued) and J. Philip Johnson (on brief), of Wold Johnson, Fargo, for defendants, appellees and cross-appellants.

SANDSTROM, Justice.

¶1 Mougey Farms appealed from a judgment dismissing its claims for an easement to pump water through an irrigation system across land owned by David Kaspari, Sarah Kaspari, and Chris Kaspari. The Kasparis cross-appealed from the trial court's decision reforming a lease between Kasparis and Mougey and partitioning the irrigation system. We reverse the summary judgment dismissing Mougey's eminent domain claim and affirm the remainder of the judgment.

I

¶2 Mougey owns farmland in Ransom County, immediately north of Kasparis' farmland. The Sheyenne River runs on the south side of Kasparis' land and is not adjacent to Mougey's land.

¶3 In 1979, Kasparis began leasing their land to Mougey. The State Engineer issued David Kaspari a conditional water permit, dated July 9, 1982, ¹ to irrigate 478 acres of Kasparis' land from the Sheyenne River. The conditional permit required beneficial use of the water before August 1985. In 1983, Mougey agreed to help Kasparis develop the water rights for Kasparis' land, and in 1984 Mougey operated an above-the-ground irrigation system on Kasparis' land.

¶4 The parties subsequently agreed to install an underground irrigation system to service both Kasparis' and Mougey's land. The parties purchased irrigation equipment for the system, and Kasparis financed their part of the purchase at Citizen's State Bank at Enderlin. Mougey agreed to pay additional rent for the irrigation equipment financed by Kasparis, and the parties also agreed Mougey would receive water rights for its land. The parties installed an underground irrigation system on Kasparis' land. The irrigation system ran 1600 feet from the point of diversion on the Sheyenne River to a center pivot irrigator on Kasparis' land and from the center pivot another 1900 feet east on Kasparis' land. Mougey also installed pipe from the center pivot to its land.

¶5 In November 1984 and January 1985, the State Engineer, upon the request of David Kaspari, approved the transfer of 134 acres of the water permit for Kasparis' land to Mougey's land. In February 1985, the State Engineer issued David Kaspari a perfected water permit to irrigate 551.6 acres from the Sheyenne River, allowing 134 acres on Mougey's land and 417.6 acres on Kasparis' land.

¶6 Effective March 1, 1985, Mougey leased Kasparis' land for a 10-year term. As part of the rent, Mougey agreed to pay Kasparis $3,900 per year for the cost of pipe and wire for the irrigation system. Mougey also agreed to pay Kasparis additional rent of $6,788.94 per year for eight years for the purpose of buying the irrigation system from Kasparis. Mougey and Kasparis also executed a written easement allowing Mougey to run water through the irrigation system on Kasparis' land to Mougey's land. The easement apportioned ownership of the irrigation system, specifying Mougey owned two-thirds and Kasparis owned one-third of the 1600 feet of pipe and wire from the point of diversion to the center pivot, Kasparis owned the 1900 feet of pipe and wire from the center pivot east, and Mougey owned the pipe and wire from the center pivot north to its land. The easement also specified it would terminate if Mougey no longer leased Kasparis' land.

¶7 Effective March 20, 1987, Mougey and Kasparis entered a new 10-year written lease. As part of the rent, Mougey agreed to make Kasparis' payments due to Citizens State Bank for the irrigation equipment. Under the 1987 lease, Mougey made semi-annual payments of $6,006.27 due on Kasparis' loan with Citizens State Bank. In August 1996, Kasparis informed Mougey they would not renew the 1987 lease, nor continue to allow Mougey to pump water through the irrigation system to Mougey's land.

¶8 Mougey sued Kasparis, seeking to continue to pump water across Kasparis' land by virtue of an implied easement, an easement by necessity, or an easement by condemnation. Mougey sought reformation of the March 1987 lease, alleging Kasparis' loan at Citizens State Bank encompassed more than the actual cost of the irrigation equipment and seeking the difference between the amount Mougey paid to satisfy Kasparis' loan and the actual cost of the equipment. Mougey also sought partition of the irrigation system.

¶9 The trial court granted summary judgment dismissing Mougey's claims for an easement to pump water across Kasparis' land. After a bench trial, the court reformed the 1987 lease and awarded Mougey $18,050 for excess payments made under the lease. The court also ordered partition of the irrigation system. Mougey appealed, and Kasparis cross-appealed.

¶10 The trial court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 27-05-06. The appeals are timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. Art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

¶11 Mougey argues the trial court erred in granting summary judgment dismissing its claims for an easement to pump water across Kasparis' land.

A

¶12 Summary judgment is a procedural device for the prompt and expeditious disposition of a lawsuit without a trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Osterman-Levitt v. MedQuest, Inc., 513 N.W.2d 70, 72 (N.D.1994). In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which reasonably can be drawn from the evidence. Ellingson v. Knudson, 498 N.W.2d 814, 817 (N.D.1993). Disputes of fact become questions of law if reasonable persons can draw only one conclusion from the evidence. Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996).

B

¶13 We initially consider Mougey's claims for an implied easement. We recently recognized two types of implied easements--an easement implied from a preexisting use and an easement by necessity. Griffeth v. Eid, et al., 1998 ND 38, p 5, 573 N.W.2d 829. The elements of an easement implied from a preexisting use are " 'unity of title of the dominant and servient tenement and a subsequent severance; apparent, permanent, and continuous use; and, the easement must be important or necessary for the enjoyment of the dominant tenement.' " Griffeth at p 8 (quoting Lutz v. Krauter, 553 N.W.2d 749, 751 (N.D.1996)).

¶14 In Griffeth at p 12 (quoting 25 Am.Jur.2d Easements and Licenses § 36 (1996)), we outlined the elements of an easement by necessity:

"A way of necessity or easement by necessity:

" 'arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of strangers.' "

¶15 Here, the trial court said the transaction between Mougey and Kasparis clearly granted an easement which expired when the lease ended, and the parties intended to grant an easement for irrigation until the lease expired. The court decided there was no unity of title of the dominant and servient tenements and no subsequent severance of the tenements. The court thus ruled Mougey's claims for an easement implied from a preexisting use and an easement by necessity failed as a matter of law.

¶16 Mougey asserts water rights appurtenant to real estate are a tenement for purposes of an implied easement, and because Kasparis granted Mougey water rights for Mougey's land, Kasparis also granted Mougey an implied easement to pump water across Kasparis' land to utilize those water rights.

¶17 A water permit may be transferred or assigned only upon approval of the State Engineer, N.D.C.C. § 61-04-15, and Mougey has cited no authority holding the transfer of water rights under a permit issued by a governmental entity constitutes the severance of a tenement for purposes of an implied easement. We need not decide this issue, however, because the parties' written easement clearly and unambiguously evidences the parties' intent the easement would terminate if Mougey no longer leased Kasparis' land.

¶18 Several distinctions exist between an easement implied from a preexisting use and an easement by necessity. Griffeth at p 12. Both types of implied easements, however, depend on the parties' intent as inferred from the facts and circumstances of their transaction. 25 Am.Jur.2d Easements and License §§ 23, 37 (1996). Neither type of easement will be implied where the parties did not intend an easement, and generally the express grant of an easement negates an implied easement of a similar character. 25 Am.Jur.2d Easements and Licenses §§ 23, 37 (1996). In Lutz at 753, we recognized a court will not imply the creation of an easement where the parties have expressed a contrary intent. See Roll v. Keller, 336 N.W.2d 648, 651 (N.D.1983) (parties' intent from writing alone evidences implied easement conveyed with property).

¶19 Although the existence of an implied easement ordinarily involves factual issues, see Griffeth at pp 6, 11, 13, the interpretation of a contract to determine its legal effect is a question of law. Lire, Inc. v. Bob's Pizza Inn Restaurants, Inc., 541 N.W.2d 432, 433 (N.D.1995). Contracts are construed to give effect to the parties' mutual intent. Lire at 433-34. The...