Wheeler v. Newman
| Decision Date | 21 October 1986 |
| Docket Number | No. C6-86-713,C6-86-713 |
| Citation | 394 N.W.2d 620 |
| Parties | Jack H. WHEELER, et al., Respondents, v. Mary NEWMAN, et al., Appellants. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Use of the driveway by respondents' predecessors in title was exclusive, adverse and under claim of right.
Valen & Larson, John E. Valen, Little Falls, for respondents.
Donohue, Rajkowski, Hansmeier, Grunke & Jovanovich, Ltd., John H. Scherer, St. Cloud, for appellants.
Heard, considered and decided by LESLIE, P.J., and WOZNIAK and CRIPPEN, JJ.
Respondents sought a judgment declaring and granting an easement by prescription across an eight-foot driveway located on the property of appellants. Appellants disputed the existence of the easement.
The trial court found that respondents have an easement by prescription over the driveway in question up to the point where the driveway branches off to respondents' property. We affirm.
Appellants and respondents currently own adjacent parcels of property on Lake Alexander. The disputed driveway runs between the parcels, but is totally situated on appellants' land.
Before 1954 Carrie Goodvin and her family owned both lots and the driveway in dispute. They operated a resort on the lake. Consequently, the driveway was used for both access to the resort and the lake generally.
In 1954 Oscar Rossum purchased the lot currently owned by respondents from Goodvin. The lot purchased did not contain the driveway now in dispute. The driveway ran between Goodvin's and Rossum's property, but actually lay on the former's property.
After purchasing the adjacent lot, Rossum began using the disputed driveway to get to his land. Rossum testified at trial that he used the driveway because "everybody used it." Rossum indicated that he never had a conversation with Goodvin concerning the use of the driveway. He testified that he had never thought of acquiring, and had no intention to acquire, ownership of the driveway. The driveway was maintained by Rossum and two neighbors, James Cherry and Zigfred Nelson. Rossum further testified that he used the driveway continuously up until 1983.
In 1966 Goodvin sold her remaining parcel to her grandson Walter Smith. Smith testified at trial that in 1966, after he had purchased his grandmother's property, he had a conversation with Rossum. Smith claimed that this conversation took place in the yard in front of Rossum's house. Smith asserted that Rossum asked if he, Rossum, could continue to use the driveway. Smith replied that Rossum could continue to use the driveway, but that he, Smith, still owned it. Rossum testified that he did not recall such a conversation. Rossum further indicated that he thought he would recall the conversation if it had taken place. In 1980 Smith sold the property to appellants.
In 1982 Rossum put his land up for sale and was informed by appellants, then owners of the adjacent parcel, that while he could continue to use the driveway his buyers could not. Rossum then constructed an additional access to his property. He informed respondents of the dispute when he sold them the property in 1983. The disputed driveway has been used by Rossum, appellants and respondents up to the time of trial.
Zigfred Nelson is a neighbor who has lived immediately west of respondents' property since 1960. Nelson testified that the disputed driveway was at one time used as a driveway to the Goodvin playground and to the lake. At that time members of the public used the driveway. He further testified that from 1960 on he, Rossum and Goodvin all used the driveway. Nelson used the driveway and the garage on Rossum's property during winters from 1960 to 1983 when Rossum sold his property. He used this garage with Rossum's permission. Although Goodvin did not own a car, people used the driveway when they came over to get her.
James Cherry lives on the lot directly to the east of Goodvin's house. Cherry testified that after he bought his property in 1958 he used the driveway as the sole access to that property for about two years. After that time he completed his own driveway and stopped regular use of the disputed driveway. Cherry testified that he thought the driveway was a public road because "everybody told me that the road has been there 100 years." He indicated that "everybody seemed to drive in" on the disputed driveway to see the lake. He further indicated that the driveway was used for deliveries in the neighborhood. Finally, Cherry testified that he had used the driveway to get heavy equipment onto his land.
Edward Altrichter has lived across the road from the disputed driveway since 1953. When asked about use of the driveway Altrichter replied that "anybody that wanted to drive in there drove in."
Did the trial court err in finding that respondents' predecessors in title used the driveway exclusively, adversely and under claim of right, thus justifying the grant of an easement by prescription?
The scope of our review in this case is limited. When the trial court sits without a jury its findings of fact will not be set aside unless clearly erroneous and we must give due regard to the trial court's opportunity to judge the credibility of the witnesses. Minn.R.Civ.P. 52.01.
Easement by prescription and adverse possession are two similar legal theories. With both, a person, through his prolonged actions, gains an interest in property that he did not previously have. Through adverse possession, a person gains title to land. See Romans v. Nadler, 217 Minn. 174, 177, 14 N.W.2d 482, 485 (1944). Through a prescriptive easement, a person gains the right to use land for certain purposes. Id. at 181-82, 14 N.W.2d at 486-87.
To gain an easement by prescription a person must, for fifteen years, use the land in a manner which is hostile, adverse, and under a claim of right, and in a manner that is actual, open, continuous and exclusive. Burns v. Placheki, 301 Minn. 445, 448, 223 N.W.2d 133, 135-36 (1974). Appellants concede that the actual, open and continuous use requirements have been met. Additionally no question arises concerning the fifteen year requirement. At issue is whether respondents and their predecessors in interest used the land in a manner which was adverse, under claim of right, and exclusive throughout the last fifteen years.
In order for a person to gain a prescriptive easement the land must be used exclusively. The exclusivity requirement for a prescriptive easement is not as strictly defined, however, as that of adverse possession. Nordin v. Kuno, 287 N.W.2d 923, 926 (Minn.1980). With adverse possession the person must take possession of the land as if it were his own with the intention of using it to the exclusion of others. Thomas v. Mrkonich, 247 Minn. 481, 484, 78 N.W.2d...
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Oliver v. State ex rel. Com'R of Transp., No. A08-646.
...a claimant to have excluded use by others. Merrick v. Schleuder, 179 Minn. 228, 232, 228 N.W. 755, 756 (1930); Wheeler v. Newman, 394 N.W.2d 620, 623 (Minn. App.1986). Instead, a use is "exclusive" when it does not "depend on a similar right in others," and is "exclusive against the communi......
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