                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0403

                                  Victor Legatt, et al.,
                                      Appellants,

                                           vs.

                                 Dennis Legatt, et al.,
                                    Respondents

                              Filed November 30, 2015
                        Affirmed in part and reversed in part
                                    Worke, Judge

                             Stearns County District Court
                               File No. 73-CV-12-3629

James L. Noske, Noske Law Firm, St. Cloud, Minnesota (for appellants)

Benjamin B. Bohnsack, Matthew P. Lindeman, Rinke Noonan, St. Cloud, Minnesota (for
respondents)

      Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and

Worke, Judge.

                       UNPUBLISHED OPINION

WORKE, Judge

      In this lease, easement, and surface-water-drainage dispute between neighboring

farmers, appellants argue that the district court erred by (1) finding that respondents’

replacement of a drainage swale with tiling did not violate the reasonable-use doctrine,
(2) determining that appellants could not bring a breach-of-contract claim after

respondents leased land to a third party that was previously leased to appellants, (3)

concluding that respondents had a permanent easement across appellants’ land for their

irrigation pivot, and (4) finding that respondents were entitled to damages after appellants

violated respondents’ easement rights. Because the district court’s determinations that

(1) respondents did not violate the reasonable-use doctrine, (2) appellants could not bring

a breach-of-contract claim after first violating the lease, and (3) respondents were entitled

to damages were not clearly erroneous, we affirm in part. But because the district court

clearly erred in finding that the long-term land-use contract created a permanent

easement, we reverse in part.

                                          FACTS

       Appellants Victor and Mary Legatt (Victor) and respondents Dennis and Lois

Legatt (Dennis) own adjoining farmland in Stearns County. For over a decade, the

parties have jointly farmed portions of their adjoining acres and utilized numerous land-

use and related agreements. In April 2012, Victor filed a complaint alleging numerous

claims pertaining to the parties’ business relationship, and Dennis counterclaimed. In

February 2014, the district court heard Victor’s case-in-chief and subsequently dismissed

the matter pursuant to Minn. R. Civ. P. 41.02(b).       The district court denied Victor’s

motion for amended findings or, alternatively, a new trial. In December 2014, the district

court heard Dennis’s counterclaims. Dennis was awarded monetary damages for lost

crop production and related costs and was granted a permanent easement over Victor’s

land. The facts relevant to the appealed issues are as follows.


                                             2
Drainage

       A meadow and swamp are located on the northeast portion of Victor’s land, where

the elevation is lowest. The meadow and swamp are both wetlands and cannot be drained

for crop production. Prior to this dispute, a natural grassway transported surface water

from the street, across Dennis’s land, and to Victor’s meadow. In 2006, Victor installed

an underground perforated tile system alongside the grassway. The tile that ran under the

meadow and into the swamp reduced surface water and improved crop production. In

2011, Dennis filled in the grassway and replaced it with tiling; it is undisputed that this

increased Dennis’s farming efficiency, increased farmable land, and reduced erosion.

Dennis also constructed a berm on his land. The tiling did not alter the natural flow and

direction of the water, and it carried water to Victor’s meadow just as the grassland did.

Victor claimed that Dennis’s actions caused water to back up on his field, flooded some

of his crops, and made areas of his land too wet to cross with machinery. But Victor

maintained that these water issues only occurred after an anomalously large amount of

rain. The district court found that Dennis’s actions did not alter the natural flow and

direction of water and that Victor presented no credible evidence that the flooding was

caused by the replacement of the grassway rather than natural variations in rainfall.

South Acres Crop Share

       Dennis and Victor had a written contract allowing Victor to farm 73 of Dennis’s

acres (south acres) from 2004 through 2013. The contract required Victor to pay Dennis

4,760 bushels of dry corn for the use of the land and the use of Dennis’s irrigation pivot.




                                             3
Beginning in 2009, Victor withheld corn bushels from Dennis’s annual corn payment as

follows:

           (1) 180 bushels in 2009;
           (2) 951 bushels in 2010; and
           (3) 4,760 bushels, the entire rent, in 2011.

Victor admits that he had sufficient corn to pay Dennis and that he withheld payment for

leverage over the parties’ other disputes. Dennis requested his share of the corn crop and

when Victor refused to release it, Dennis notified Victor that continued withholding

would result in lease termination.

       In April 2012, before Victor began preparing the south acres for planting, he

noticed a neighbor picking rock on Dennis’s land. Victor showed the neighbor his land-

use agreement, but the neighbor continued picking rock and eventually planted crops on

the land. Victor then delivered the withheld corn to Dennis around June 2012.

Irrigation Pivots

       The parties had a written contract that leased Victor an irrigation pivot (Pivot A)

from Dennis in exchange for corn from 2005 to 2013. The pivot turned 360 degrees and

covered four 40-acre sections (two northerly and two southerly). Thus, Pivot A crossed

and irrigated both parties’ lands. Dennis paid for the installation of Pivot A, and Victor

provided the power source and well. Victor then refused to allow Pivot A to cross his

property, prohibiting parts of Dennis’s land from being irrigated.

       Since 1994, the parties had agreements permitting Victor to farm portions of

Dennis’s north acres in exchange for a portion of the crops produced. In 2008, Dennis

purchased and installed Pivot B, for a cost of $129,000, and Victor purchased and


                                              4
installed Pivot C, for a cost of $40,000. Both pivots crossed the opposing party’s land.

The parties utilized an oral agreement for the 2008 pivot use and entered into a written

agreement in July 2008 at the request of the Minnesota DNR.

       Dennis claims that in 2009, Victor informed him that Pivot B could no longer

cross Victor’s property and physically blocked the pivot. Victor contends that Dennis

voluntarily moved the pivot after deciding not to cross the land; Dennis contends that

Victor would only allow Dennis to cross the land if Dennis paid for reinstallation of the

pivot. Victor testified that in 2009 he changed his mind and decided to allow the pivot to

cross his property, but the district court found this testimony to not be credible and

concluded that Victor would only have allowed Dennis to cross the land if Dennis rented

his north acres to Victor. Because Pivot B’s blockage prevented Dennis from irrigating

some of his crops in 2009, the district court awarded Dennis $2,543 for decreased crop

production and $29,914 for the cost of reconfiguring the pivot, finding that this was the

least expensive means to remedy the blockage. Dennis was also granted a permanent

easement to cross Victor’s land with his irrigation pivot.

       The district court also concluded that there was an implied-in-fact contract term

which indicated that the parties intended the Pivot A agreement to extend beyond 2013.

The district court estopped Victor from preventing Pivot A from crossing his property

and granted Dennis an easement to continue using Pivot A indefinitely.

       This appeal follows.




                                             5
                                      DECISION

       The district court first dismissed Victor’s claims pursuant to Minn. R. Civ. P.

41.02(b) which states that:

       After the plaintiff has completed the presentation of evidence, the
       defendant, without waiving the right to offer evidence in the event
       the motion is not granted, may move for a dismissal on the ground
       that upon the facts and the law, the plaintiff has shown no right to
       relief. In an action tried by the court without a jury, the court as trier
       of the fact may then determine the facts and render judgment against
       the plaintiff or may decline to render any judgment until the close of
       all the evidence.

We will not set aside the district court’s findings under a rule 41.02(b) involuntary

dismissal unless they are clearly erroneous.

Reasonable-Use Doctrine

       Victor argues that Dennis violated the reasonable-use doctrine when he filled in

the swale and grassway on his property and thus altered the natural watercourse. We

review a district court’s findings for clear error. Highview N. Apartments v. Cty. Of

Ramsey, 323 N.W.2d 65, 67 (Minn. 1982). A finding is clearly erroneous if it “is

palpably and manifestly against the weight of the evidence.”            Kral v. Boesch, 557

N.W.2d 597, 598 (Minn. App. 1996). Minnesota has adopted the reasonable-use doctrine

which “permits a property owner to drain surface waters onto another’s land if the

elements of the reasonable-use doctrine are met.” Goerke Family P’ship v. Lac qui

Parle-Yellow Bank Watershed Dist., 857 N.W.2d 50, 54 (Minn. App. 2014). Under the

reasonable-use doctrine, a landowner may divert surface water to another’s land, even if

some of the water would not have naturally gone to the other’s land, if:



                                               6
              (a) there is a reasonable necessity for such drainage;
              (b) reasonable care be taken to avoid unnecessary injury to
              the land receiving the burden;
              (c) the utility or benefit accruing to the land drained
              reasonably outweighs the gravity of the harm resulting to the
              land receiving the burden;
              (d) where practicable, it is accomplished by reasonably
              improving and aiding the normal and natural system of
              drainage according to its reasonable carrying capacity, or if,
              in the absence of a practicable natural drain, a reasonable and
              feasible artificial drainage system is adopted.

Kral, 557 N.W.2d at 599 (quotation omitted). When evaluating reasonableness, the court

should consider (1) the extent of the harm, (2) the foreseeability of the harm, and (3) the

motive for the action. Id. “The reasonable use rule cannot be reduced to a cut-and-dried

formula. What is reasonable use is a fact question to be resolved according to the

peculiar facts of each case.” Duevel v. Jennissen, 352 N.W.2d 93, 96 (Minn. App. 1984).

       Victor does not directly challenge the district court’s finding that filling in the

swale and grassway was reasonably necessary because it “improved farming efficiency

and production” and “reduced erosion.” And this court has previously upheld a district

court’s determination that drainage that improves crop output is reasonably necessary,

Goerke, 857 N.W.2d at 56, and that installing a drainage system that significantly

increased tillable land was permissible under the reasonable-use doctrine, Duevel, 352

N.W.2d at 96-97. Therefore, the district court did not clearly err in finding that filling in

the grassway was reasonably necessary.

       Victor also argues that because Dennis used perforated tiling, which is meant to

draw down saturated soils rather than transport flowing or surface water, the district court

erred in finding that Dennis took reasonable care to avoid unnecessary injury. Victor


                                             7
argues that Dennis was forced to build a berm to impede water flow across his land

because the tiling was inadequate. But the record lacks detail as to why the berm was

constructed and how it affects water flow, including whether it directs water onto

Victor’s land. We give “great deference to a [district] court’s findings of fact because it

has the advantage of hearing the testimony, assessing relative credibility of witnesses and

acquiring a thorough understanding of the circumstances unique to the matter before it.”

Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996). The district court found

that “[n]o credible evidence was presented establishing that the 2011 tiling transports

additional water to Victor’s meadow,” and other than photographs showing the fields

after an “exceptionally rainy period in May, there is no evidence that Victor’s land is

flooded.” The district court further found that Victor’s testimony about increased water

flow to his fields was not credible and noted that he did not present any expert testimony

about the flow, rate, or volume of water being transported. Without this testimony, there

is no concrete evidence that Dennis’s tiling system was inadequate. Therefore, the

district court did not clearly err in finding that the tiling system constituted reasonable

care to avoid injury.

       Because filling in the grassway and swale indisputably improved Dennis’s

production and the district court found that there was no harm to Victor, the benefit to

Dennis outweighs the gravity of harm to Victor. Although Victor adamantly disputes the

district court’s finding that there was no harm to him, he did not provide any evidence to

rebut the district court’s findings that the standing water was due to an anomalous rain.

Without evidence that the area regularly receives rainstorms akin to the one that preceded


                                            8
the flooding, we cannot conclude that the district court’s finding that the heavy rain

caused the damage was clearly erroneous.

       Victor argues the fourth factor, that where practicable, drainage is accomplished

by reasonably improving and aiding the normal and natural system of drainage or, if no

natural drain, a reasonable and feasible artificial drainage system, “overshadows” the

other factors and requires a ruling in his favor. Victor relies upon the concurring opinion

in Sheehan v. Flynn for his assertion that Dennis was required to use the natural grassway

and swale for drainage. 59 Minn. 436, 451, 61 N.W. 462, 466-67 (1894) (Mitchell, J.,

concurring). The Sheehan concurrence states that “[o]f course, a man cannot change or

divert, to the prejudice of his neighbor, the natural outlet or drainage of surface water.”

Id. But Victor overstates the significance of this phrase, misinterpreting it to mean that a

person may never alter a natural channel; prior to the cited phrase, the concurrence states

that “[t]his does not mean, however, that the owner of land is not permitted to improve it,

but must abandon it to perpetual sterility, simply because its drainage would produce

some change in the manner of discharging surface water, or in the amount discharged.”

Id. at 450, 61 N.W.2d at 466. The supreme court ultimately held that the drainage was a

permissible improvement provided that the defendant did “what is reasonable under all

the circumstances.” Sheehan v. Flynn, 59 Minn. 436, 442-43, 449, 61 N.W.2d 462, 463,

466 (1894). There is no bright-line requirement that Dennis could not alter the manner of

drainage, particularly where the district court found that the new tiling system did not

alter drainage.




                                             9
      Victor also cites several cases where landowners were required to remove water

blockages. But these cases are factually distinguishable and do not negate the application

of the reasonable-use doctrine. In Town of King v. Brekke, the defendant built a dike that

caused the flooding of a highway bridge that crossed a natural water-carrying depression.

151 Minn. 474, 475, 187 N.W. 515, 515 (1922). The supreme court held that the

defendant was prohibited from obstructing the water, stating that

              [t]he owner of lower land has no more right, in dealing with
             surface water for the purpose of drainage, to cast it back upon
             his upper neighbor in times of freshets by means of a dike,
             than an upper owner has to change or divert it to the prejudice
             of his lower neighbor.

Id. at 476-77, 187 N.W. at 516. The supreme court noted that the dike did not aid

drainage of the defendant’s land and that he had the “duty to continue the water in a

natural channel” because his method of disposing the surface water was unreasonable

“when considered in connection with the benefits and damages resulting therefrom.” Id.

      Although Brekke held that the defendant—who unlike Dennis owned the lower-

elevation land—had a duty to continue the water in the accessible natural channel, it

considered this duty in terms of reasonableness. Id. This case does not stand for the

proposition that natural channels must be used in all circumstances.

      In Will v. Boler, adjacent landowners permanently widened a natural swale,

increasing drainage of surface water. 212 Minn. 525, 526-27, 4 N.W.2d 345, 346-47

(1942).   Thirty-five years later, the defendants, owners of the lower land, filled in

portions of the ditch, diverting water onto and harming the plaintiff’s land. Id. The

supreme court cited Sheehan’s holding as follows:


                                            10
              The old common-law rule that surface water is a common
              enemy, which each owner may get rid of as best he can, is in
              force in this state, except that it is modified by the rule that he
              must so use his own as not unnecessarily or unreasonably to
              injure his neighbor. Under this rule, it is the duty of an owner
              draining his own land to deposit the surface water in some
              natural drain, if one is reasonably accessible; and he is
              entitled to deposit the same in such natural drain, though it is
              thereby conveyed upon the land of his neighbor, if it does not
              thereby unreasonably injure him.

Id. at 529, 4 N.W.2d at 348 (quoting Sheehan, 59 Minn. at 436, 61 N.W. at 462). The

supreme court concluded that the defendant was estopped from closing the ditch because

the parties’ previous expansion of drainage was a joint project that benefited both parties

and the modification violated the reasonable-use doctrine. Id. at 530, 4 N.W.2d at 348.

       Here, like the parties in Will, Dennis previously expanded the natural swale to

increase its drainage. But the expansion was not a joint project, and we cannot conclude

that Dennis had a duty to maintain the swale in its previous condition when there was no

damage.

       Alternatively, even if there was damage to Victor’s land from the change in

drainage, we conclude, under all the reasonable-use doctrine factors, that Dennis’s

actions were permissible. The balance of the factors weighs in favor of Dennis, and there

is no strict requirement prohibiting alteration of the swale.

South Acres Breach of Contract

       Victor argues that the district court clearly erred by concluding that he could not

bring a breach-of-contract claim against Dennis because Victor first breached the land-

use agreement by withholding rental payments. The district court concluded that Victor’s



                                              11
withholding of corn constituted anticipatory repudiation, and that this breach excused

Dennis’s future performance. Victor additionally contends that Dennis was required to

bring an eviction action and that the district court erred by determining that an eviction

action would have been an inappropriate action because Victor was not actually in

possession of the land.

       Anticipatory breach occurs when there is “an unconditional repudiation of a

contract, either by words or acts, which is communicated to the other party prior to the

time fixed by the contract for his performance.” In re Haugen, 278 N.W.2d 75, 79 n.6

(Minn. 1979). “An anticipatory breach by repudiation occurs where a vendor cannot

possibly perform and where by its conduct it demonstrates an unequivocal intent not to

perform.” State ex rel. Friends of the Riverfront v. City of Minneapolis, 751 N.W.2d 586,

593 (Minn. App. 2008) (quotation omitted) (holding that where it was still possible for a

party to perform a contract, the other party could not establish anticipatory breach),

review denied (Minn. Sept. 23, 2008). The adversarial party may treat the renouncement

as a breach of contract and bring an action for damages. Space Ctr., Inc. v. 451 Corp.,

298 N.W.2d 443, 450 (Minn. 1980).

       It is undisputed that Victor had the corn available as payment for rent but chose

not to release it because it gave him leverage over Dennis on other issues. Victor

repeatedly declared that his intention was to withhold the 2011 corn payment when it

came due. Victor also left a voicemail for Dennis’s attorney in November 2011. In it he

stated that “I have no problem giving him the corn, but I am not releasing a kernel of corn

until we get the 2008 issues that we had on hand resolved.” We agree with the district


                                            12
court’s finding that this was an unqualified renunciation of the contract. The record thus

supports the finding of anticipatory repudiation.       The conclusion of anticipatory

repudiation supports Dennis’s nonperformance of the contract, warranting his rescission

of the contract. See Sheet Metal Workers Local No. 76 Credit Union v. Hufnagle, 295

N.W.2d 259, 262 (Minn. 1980) (stating that the remedy for anticipatory repudiation is “to

treat the entire contract as broken”). The district court did not err in determining that

Dennis had no further obligation to continue renting his portion of the south acres to

Victor.

       Victor next asserts that he can maintain his breach-of-contract action against

Dennis even though Victor first breached the contract by withholding payment. The

district court concluded that because Victor materially breached the contract, Dennis

could treat it as a total breach and was excused from performing under the contract. A

material breach is “a breach of contract that is significant enough to permit the aggrieved

party to elect to treat the breach as total (rather than partial), thus excusing that party

from further performance and affording it the right to sue for damages.” BOB Acres,

LLC v. Schumacher Farms, LLC, 797 N.W.2d 723, 728 (Minn. App. 2011) (quoting

Black’s Law Dictionary 214 (9th ed. 2009). A material breach is one that “goes to the

root or essence of the contract.” Whether a breach is material is a question of fact.

Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 49 (Minn. App.

1998). Although in the first two years of breach, Victor only withheld a small portion of

the bushels of corn, the third year he withheld the entire rent payment for the land and




                                            13
pivot use. Here, payment of corn in exchange for land use essentially encompassed the

parties’ agreement. Therefore, nonpayment constituted a material breach.

       Where there is a material breach, the nonbreaching party may rescind the contract

if the injury is irreparable, or where damages would be inadequate, difficult, or

impossible to determine. Johnny’s, Inc. v. Njaka, 450 N.W.2d 166, 168 (Minn. App.

1990). Here, Dennis rescinded the contract after a material breach by renting the land to

another farmer. Even though forfeitures are disfavored, Cloverdale, 580 N.W.2d at 49,

Victor does not have a breach-of-contract claim against Dennis because Dennis was

justified in rescinding the contract.

       Victor alternatively asserts that Dennis’s proper action for nonpayment of rent was

an eviction action because the parties had a landlord-tenant relationship, which gave

Victor a “right of redemption.” Even if the parties had a landlord-tenant relationship,

“[e]viction actions are summary proceedings that are intended to adjudicate only the

limited question of present possessory rights to the property.” Deutsche Bank Nat’l Trust

Co. v. Hanson, 841 N.W.2d 161, 164 (Minn. App. 2014). Because Victor did not

actually possess the land at the time Dennis rented it to a third party, an eviction action

would be inappropriate.

Damages

       Victor argues that the district court erred in awarding damages to Dennis for Pivot

B’s blockage because its findings of fact are erroneous. Victor asserts that the district

court erred in finding that he “physically blocked Pivot B with a field stop” and in finding

Victor’s testimony that he changed his mind about allowing access not credible. We


                                            14
defer to a district court’s findings on credibility. Sefkow v. Sefkow, 427 N.W.2d 203, 210

(Minn. 1988).

       Victor claims that the district court erred in finding that he blocked the pivot’s

access because the parties had a series of discussions, and he agreed to let Dennis cross

the field if Dennis filled in the wheel tracks with rock. But Victor’s assertion that he

decided to allow access is not supported by the record: although Dennis admitted that

Victor said Dennis could cross the land, he also said that permission was “tied in” with

Victor receiving the contract he wanted, and Dennis did not recall actually agreeing to fill

in the wheel tracks. Dennis also sent Victor a letter in July 2009 in which Dennis states

that he “decided to run the pivot up to [Victor’s] property line” because they were unable

to reach an agreement.

       Victor also claims that he never installed a field stop on the tire track. But the

court implicitly found Dennis’s testimony, that Victor told him many times he could not

cross the field, threatened to put up a property-line fence, and created a physical

blockage, credible. While there is no testimony that Victor put an actual “field stop” on

the track, there is testimony that the track was physically blocked. Victor admits that a

dismantled pivot was placed where Pivot B would cross, but he argues that the finding of

blockage is erroneous because the pivot could have easily been moved. Even if that

assertion is correct, there is no legal basis to require Dennis to move Victor’s equipment

from Victor’s land without permission. On this record, we cannot find that the district

court’s findings of facts regarding damages were clearly erroneous.




                                            15
Easement

       Victor asserts that the district court erred in granting Dennis a permanent easement

allowing Pivot A to cross Victor’s land. First, Victor argues that the easement could not

be “implied in fact” because of the statute of frauds. “The statute of frauds applies to

grants of easements.” Berg v. Carlstrom, 347 N.W.2d 809, 812 (Minn. 1984). “[T]he

difference between a contract expressed orally and one implied in fact involves no

difference in legal effect.” Capital Warehouse Co. v. McGill-Warner-Farnham Co., 276

Minn. 108, 114, 149 N.W.2d 31, 36 (1967). While an easement may be taken out of the

statute of frauds through part performance or through the doctrines of equitable or

promissory estoppel, there is no such similar requirement for implied-in-fact contracts.

See Berg, 347 N.W.2d at 812 (applying the doctrine of equitable estoppel to an

agreement normally limited by the statute of frauds). Therefore, the district court erred

by considering the easement under an implied-in-fact theory. Additionally, there is no

evidence that both parties intended the easement to continue; Dennis only testified that he

would not have purchased Pivot A without intending a longer usage period. There is no

evidence as to Victor’s intent.

       Victor next challenges the district court’s conclusion that the “Pivot Agreement

did not specifically state that the easement would continue past 2013 because it was a

fundamental and implied term of the agreement.” While this relates to the continued

easement being an implied-in-fact-term, “easement by implication” is a term of art. See

Black’s Law Dictionary 458 (5th ed. 1979) (defining “implied easement” as “[o]ne which

the law imposes by inferring the parties to a transaction intended that result, although


                                            16
they did not express it.”    Three essential factors are required for an easement by

implication: “(1) a separation of title; (2) the use which gives rise to the easement shall

have been so long continued and apparent as to show that it was intended to be

permanent; and (3) that the easement is necessary to the beneficial enjoyment of the land

granted.” Clark v. Galaxy Apartments, 427 N.W.2d 723, 726 (Minn. App. 1988). “The

existence of an implied easement is determined at the time of severance.” Lake George

Park, L.L.C. v. IBM Mid-Am. Emps. Fed. Credit Union, 576 N.W.2d 463, 465 (Minn.

App. 1998), review denied (Minn. Jun 17, 1998). A subsequent change of conditions

does not create an implied easement. Niehaus v. City of Litchfield, 529 N.W.2d 410, 412

(Minn. App. 1995). The party attempting to establish the easement bears the burden of

proving its necessity at the time of severance.      Id.   Here, the parties owned their

respective acres prior to installing Pivot A; therefore, no implied easement existed at the

time of severance. Further, the lease specifically defined the period that Pivot A could

cross the land; thus, the use is not continued. Finally, although irrigation increases

production, it is not necessary to the beneficial enjoyment of the land. We therefore

conclude that there is no implied easement.

       An easement by estoppel “is created from a voluntary servitude after a person,

mistakenly believing the servitude to be permanent, acted in reasonable reliance on the

mistaken belief.” Black’s Law Dictionary 586 (9th ed. 2009). The Minnesota Supreme

Court has adopted two descriptions of easement by estoppel:

              When a grantor conveys part of his land to a grantee with
              knowledge of the latter’s intended use of the land so
              conveyed, and the use so intended necessarily involves some


                                              17
              curtailment of the grantor’s use of his retained land, an
              easement arises in favor of the grantee as against the grantor.
              The grantor is estopped to deny that the grantee acquired the
              necessary easement. Similarly, when a vendor represents to
              his purchaser that the land sold will be served by an easement
              over reserved land of the vendor, the vendor is estopped to
              deny the existence of such easement although it is
              unmentioned in the conveyance.” . . . . The gist of the
              doctrine is that if a vendor who has reserved some property to
              himself represents to the vendee that he will have an
              easement over the vendor's property as part of the sales
              transaction, the vendor may be later estopped from denying
              the easement. The key requirement is that of “representation”;
              Tiffany refers to the doctrine as “estoppel by representation,
              by means of conduct of a particular character.”

Highway 7 Embers, Inc. v. Nw. Nat’l Bank, 256 N.W.2d 271, 277-78 (Minn. 1977)

(quotations omitted). The statute of frauds does not apply to equitable estoppel. Poksyla

v. Sundholm, 259 Minn. 125, 129, 106 N.W.2d 202, 205 (1960).

       Victor first asserts that there was no conveyance. But Victor and Dennis entered

into an agreement whereby the pivot could cross the land. This constitutes a conveyance.

Although the district court found Dennis’s testimony that he would not have purchased

the pivot if he believed the use would be limited to 10 years credible, there is no evidence

that Victor represented the agreement would last longer than 10 years.

       Dennis is attempting to make an easement out of a contract issue. The lease

agreement is not ambiguous and clearly states that the lease, which both parties benefited

from, was enforceable for 10 years. The original agreement was for a set-term lease, not

an indefinite easement. Nothing indicates that both parties actually considered that the

land-use agreement would last longer than 10 years. In fact, if Dennis truly had an

indefinite easement, a 10-year lease would not have been necessary. Victor’s potential


                                            18
benefit from a greater than the expressly agreed upon period also does not require a lease

extension. See Highway 7 Embers, 256 N.W.2d at 278 (“Embers bargained for and

received an express easement over a part of the . . . property. The equities do not balance

so heavily in favor of Embers as to require an extension of that express grant.”).

       On the other hand, Victor provides no reason for preventing the pivot from

crossing the land—the pivot provided irrigation to both Dennis’s and Victor’s lands, and

Victor built his own pivot after he determined that Dennis could not cross his land.

While the parties may have contemplated something longer, especially given the expense

of installing a pivot, this possibility does not provide evidence in the record that Victor

made any kind of representation. Therefore, the district court erred by determining that

Dennis had an indefinite easement for Pivot A.

       Affirmed in part and reversed in part.




                                            19
