                          This opinion will be unpublished and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
                                     A16-0318

                                     Eric N. Nerland,
                                       Respondent,

                                            vs.

                                Kristy Lee Marie Barsch,
                                       Appellant.

                              Filed December 27, 2016
                  Affirmed in part, reversed in part, and remanded
                                 Rodenberg, Judge

                        Lake of the Woods County District Court
                                 File No. 39-CV-14-161

Eric Nerland, Minneapolis, Minnesota (pro se respondent)

Dennis H. Ingold, Alan B. Fish, P.A., Roseau, Minnesota (for appellant)

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

Hooten, Judge.

                         UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant Kristy Lee Marie Barsch challenges the district court’s order concluding

that respondent Eric N. Nerland is entitled to use an easement over her land for lake-access

purposes. The district court, after a court trial, held that respondent has an express
easement over appellant’s lot and, alternatively, has an implied easement by necessity. We

affirm in part, reverse in part, and remand to the district court for further findings of fact.

                                           FACTS

       The land that is now platted as Lake of the Woods Estates was originally owned by

Kenneth and Ethel Stoeckmann. In 1975, Kenneth and Ethel Stoeckmann conveyed the

platted land to Stoeckmann Land Co., a corporation, the shares of which they owned.

Appellant owns lot 5, block 1; Respondent owns lot 5, block 4.

       In 1993, Stoeckmann Land Co. conveyed to Roger Kovar the lot that is currently

owned by appellant, reserving an easement across the land for Stoeckmann Land Co., its

successors, assigns, and permittees. Kovar then conveyed the land to the Hovdes, who in

turn conveyed it to the Noaeills, who conveyed it to appellant in 2010.

       Respondent’s 2012 deed was from William and Cherylin Stoeckmann. The record

reveals no transfer of lot 5, block 4 from Stoeckmann Land Co. to any other party.

       Respondent sued appellant in 2014, seeking a declaration that, as owner of lot 5,

block 4, he has an easement over appellant’s lot 5, block 1 for lake-access purposes, and

for injunctive relief prohibiting appellant’s interference with his enjoyment of that

easement. The case was tried to the district court.

       At trial, testimony revealed that some area residents have used appellant’s land for

lake access. Appellant acted to block access to the lake in 2013, after seeing people

crossing her property to access the lake. Because the people crossing her land were

disruptive to her enjoyment of her property, she placed a chain across the area being used




                                               2
as a lake access and posted a sign. She also lined the lake shore with rocks, which both

protected her property from flooding and made access to the lake more difficult.

       In addition to disputing the existence of any easement over her lot in favor of lot 5,

block 4, appellant introduced into evidence two documents she claims restrict any easement

over her land. The first document is the Lake of the Woods County Zoning Ordinance

from October 3, 2011. The second is a declaration of restrictions signed by Kenneth and

Ethel Stoeckmann on July 3, 1974.

       The district court declared that respondent has an easement appurtenant across

appellant’s property that arose from an express grant and, alternatively, that respondent has

an implied easement by necessity across appellant’s lot.

       This appeal followed.

                                         DECISION

I.     Standard of review

       We review appeals from civil judgments to determine “whether the evidence

sustains the findings and whether the findings support the conclusions,” and will only

reverse a district court’s findings if they are clearly erroneous. Magnuson v. Cossette, 707

N.W.2d 738, 743-44 (Minn. App. 2006) (quotation omitted). The legal effect of an

unambiguous written document is a question of law that we review de novo. Apitz v.

Hopkins, 863 N.W.2d 437, 439 (Minn. App. 2015)

II.    Express easement

       The district court determined that an easement in favor of respondent was created

when Kenneth and Ethel Stoeckmann platted Lake of the Woods Estates in 1972, then


                                             3
again in 1983 when they conveyed an easement over lot 5, block 1 to a third party, and

finally in 1993 by a deed from Stoeckmann Land Co. to appellant’s predecessor-in-interest.

Appellant argues that these findings are not supported by the record. On appeal, respondent

concedes that no express easement benefiting his lot was created in either 1972 or 1983,

but maintains that the 1993 deed created an express easement benefitting his lot.

       An easement can be created by express grant. Braaten v. Jarvi, 347 N.W.2d 279,

282 (Minn. App. 1984), review denied (Minn. July 27, 1984), overruled on other grounds

by Haugen v. Peterson, 400 N.W.2d 723, 726 (Minn. 1987). To create an easement, the

land subject to the easement must be identified and an intention to create an easement must

be expressed. Miller v. Snedeker, 257 Minn. 204, 215, 101 N.W.2d 213, 222 (1960);

Braaten, 347 N.W.2d at 282. The owner of a dominant estate must show the manner and

circumstances of the easement’s creation, but is not required to “trace its course through

successive possessions from the original possessor in whose favor it was created to

himself.” Restatement (First) of Property § 487 cmt. a (1944). “An easement appurtenant

to another lot, when created by conveyance, attaches to the possession of that other lot and

‘follows it into whosesoever hands it may come.’” Alvin v. Johnson, 241 Minn. 257, 261,

63 N.W.2d 22, 25 (1954) (quoting Restatement (First) of Property § 487 cmt. a) (other

quotation omitted). “[W]hether an easement is appurtenant or in gross is determined not

by contiguity but by whether the easement was intended to benefit the grantee’s land.”

Block v. Sexton, 577 N.W.2d 521, 525 (Minn. App. 1998). “[A]n easement in gross will

never be presumed when it can be fairly construed to be appurtenant to some other estate.”

Bruns v. Willems, 142 Minn. 473, 478, 172 N.W. 772, 774 (1919).


                                             4
       The district court found, and the parties do not dispute, that: (1) appellant took title

to lot 5, block 1 subject to an easement, and (2) respondent is the record owner of lot 5,

block 4. Deeds in the record support these findings. However, these two findings alone

are insufficient to show that the easement reserved by Stoeckmann Land Co. in its 1993

deed to Kovar benefits the owner of respondent’s lot. The deed between Stoeckmann Land

Co. and Kovar did create an easement appurtenant to benefit Stoeckmann Land Co., and

“its successors, assigns, and permittees.” But there is no evidence of record that shows

Stoeckmann Land Co. owned lot 5, block 4 when the easement was created, so it is unclear

whether the deed created an easement appurtenant that benefitted respondent’s land.

Respondent, as owner of lot 5, block 4, must demonstrate that Stoeckmann Land Co. owned

it when it purported to create the easement in favor of itself and its successors, or otherwise

show that he is a permittee of Stoeckmann Land Co.

       We affirm the conclusion that the Kovar deed created an easement over appellant’s

land in favor of Stoeckmann Land Co., but reverse the district court’s finding that

respondent is owner of a dominant estate, because the record is insufficient to support that

finding. We remand to the district court for further factual findings concerning whether

respondent is the beneficiary of an express easement. Resolution of this issue depends on

these unresolved factual issues: (1) what land, if any, did Stoeckmann Land Co. own at

the time it deeded lot 5, block 1 to Kovar; and (2) whether respondent is a successor, assign,

or permittee of Stoeckmann Land Co. and therefore entitled to the use and enjoyment of

the easement across appellant’s lot.




                                              5
III.   Implied easement

       The district court held, in the alternative, that respondent’s easement over

appellant’s land was reserved “by implication . . . in 1983.” In the interest of judicial

economy, we address that issue for the district court on remand.

       Appellant raises two arguments regarding the district court’s determination that,

even if respondent does not have an express easement, he has an implied easement by

necessity over appellant’s land. First, appellant argues that respondent did not raise this

issue in his pleadings and did not formally amend his pleadings during trial, so the district

court could not grant relief on that basis. Second, appellant argues that the record fails to

prove an implied easement by necessity.

       A. Sufficiency of respondent’s pleadings

       We first address appellant’s argument that respondent did not raise the issue of an

implied easement in his pleadings, and did not amend his pleadings at trial to include an

implied-easement-by-necessity claim, and that the district court therefore erred in granting

relief on the issue of an implied easement.

       We review a district court’s decision to permit or deny amendments to pleadings for

clear abuse of discretion. Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc.,

715 N.W.2d 458, 474 (Minn. App. 2006), review denied (Minn. Aug. 23, 2006). However,

a district court’s finding that a party consented to the new arguments at trial is reviewed

for clear error. See Hopper v. Rech, 375 N.W.2d 538, 543 (Minn. App. 1985) (reviewing

consent finding for clear error), review denied (Minn. Dec. 30, 1985).




                                              6
       A party must have notice of the claims against her, and a district court must “base

relief on issues either raised by the pleadings or litigated by consent. Folk v. Home Mut.

Ins. Co., 336 N.W.2d 265, 267 (Minn. 1983). Pleading of “broad, general statements” that

do not support every element of a cause of action are sufficient. Goeb v. Tharaldson, 615

N.W.2d 800, 818 (Minn. 2000) (using a “liberal” reading of pleadings when deciding if

they give an adverse party fair notice of the theory on which a claimant seeks relief).

Parties are allowed to amend pleadings freely “when justice so requires.” Minn. R. Civ. P.

15.01; Rios v. Jennie-O Turkey Store, Inc., 793 N.W.2d 309, 317 (Minn. App. 2011),

review denied (Minn. Mar. 29, 2011). Even if issues are not raised by the pleadings, issues

tried by express or implied consent “shall be treated in all respects as if they had been raised

in the pleadings.” Minn. R. Civ. P. 15.02. However, if a party fails to amend his pleadings,

and the unpleaded issue is not voluntarily litigated, courts cannot grant relief on the

unpleaded issue. Rios, 793 N.W.2d at 317 (citing Roberge v. Cambridge Co-op. Creamery

Co., 243 Minn. 230, 234, 67 N.W.2d 400, 403 (1954)).

       On appeal, respondent does not specifically identify which part of his initial

complaint is claimed to have raised the issue of easement by implication.1 However, his

complaint does allege that “Defendant has personal knowledge of prior use of easement.”

       Appellant repeatedly objected to the sufficiency of respondent’s pleadings before

the district court. At trial, appellant objected when respondent introduced evidence that an

easement existed by prescription, but the district court overruled this objection. In so


1
  His briefing on appeal consists only of references back to his pleadings and arguments in
the district court.

                                               7
doing, the district court implicitly construed the pleadings to include prescriptive-easement

claims. In her posttrail brief to the district court, appellant raised this objection again,

arguing the district court should not grant relief on this issue. Appellant went on to address

the substance of respondent’s implied-easement argument. The district court considered

respondent’s implied-easement claims on the merits after affording appellant an

opportunity to be heard.

       Because we review a district court’s grant of leave to amend pleadings for clear

abuse of discretion, and because pleadings are construed liberally in favor of the pleading

party, appellant has a heavy burden to show that the district court erred. On this record,

we conclude that respondent’s pleadings were sufficient for the trial court to have

addressed respondent’s implied-easement-by-necessity arguments.

       B. Factual findings regarding the implied easement by necessity

       The district court’s memorandum of law, appended to its order, recites as an

alternative basis for an easement over appellant’s lot that respondent “persuaded the court

that his easement arises . . . [out of] an implied easement by necessity.” But the district

court does not explain what evidence persuaded it. The district court stated only that “[t]he

alternatives proposed by [appellant] are not dissimilar to those addressed above in

Rosendahl.” See Rosendahl v. Nelson, 408 N.W.2d 609, 611 (Minn. App. 1987), review

denied (Minn. Sept. 18, 1987) (considering elements of easement by implication).

       An implied easement by necessity has three elements: (1) separation of title; (2) the

use that gives rise to the easement is so long and continued that it shows it was intended to

be permanent; and (3) the easement is necessary to the beneficial use of the land. Niehaus


                                              8
v. City of Litchfield, 529 N.W.2d 410, 412 (Minn. App. 1995). “[A]n implied easement

must be determined at the time of severance, and a subsequent change of conditions will

not defeat or create an implied easement.” Id. (quotation omitted). The party asserting an

easement by necessity has the burden of proving that necessity existed at the time of

severance. Id. “Except for the necessity requirement, these factors are only aids in

determining whether an implied easement existed.” Clark v. Galaxy Apartments, 427

N.W.2d 723, 726 (Minn. App. 1988).

       The record does not identify when the separation of title occurred. Lake of the

Woods Estates was platted in 1972. Three years later, the platted land was conveyed by

Kenneth and Ethel Stoeckmann to Stoeckmann Land Co., which deeded appellant’s lot to

Kovar in 1993. Respondent’s deed is from William and Cherylin Stoeckmann, but how

and when they came to own the lot is not revealed by the record. Neither does the record

disclose what, if any, land Stoeckmann Land Co. owned in 1993. Nor do the district court’s

factual findings explain why an easement was necessary to the beneficial use of

respondent’s land at the time it was severed. The district court made no findings of fact

concerning those issues.

       The district court analogized this case to our decision in Rosendahl, but it is unclear

to us how this analogy supports the district court’s decision.          The district court’s

memorandum of law provides no explanation. In Rosendahl, we held that an easement was

necessary in a situation where steep slopes, the presence of a tree, and the presence of steps

to a kitchen made it prohibitively expensive for the Rosendahls to build a driveway to their

property without using an easement across their neighbor’s property. Rosendahl, 408


                                              9
N.W.2d at 611-12. Similar facts are absent here. Respondent admitted at trial that he could

access the lake by using a public access point one or two miles away. Absent a further

explanation and findings of fact sufficient to justify the district court’s conclusion of an

easement by necessity, we are unable to effectively review its implied-easement-by-

necessity determination on appeal. Gams v. Houghton, 884 N.W.2d 611, 621 (Minn. 2016)

(concluding that a district court’s conclusory statements require remand when effective

appellate review is not possible). We therefore remand to the district court for further

factual findings on the implied-easement-by-necessity issue.

IV.    Validity of easement

       Appellant makes two additional arguments concerning the invalidity of any

easement, express or implied, pointing to a 1974 declaration of restrictions for Lake of the

Woods Estates and the 2011 Lake of the Woods County Zoning Ordinance. We address

each in turn.

       A. 1974 declaration of restrictions

       In 1974, Kenneth and Ethel Stoeckmann created a restrictive covenant over all the

Lake of the Woods Estate properties. Among other things, the document states that:

                Nothing but a single private dwelling or residence designed for
                the occupancy of one family shall be erected on any lot in this
                subdivision or shall said premises be used for any purpose
                other than residential purposes except as hereinbefore
                specified[.]

       Appellant argues that this restrictive covenant was intended to prohibit

“recreational” use of the land, and to keep the subdivision “desirable” by preventing

easements like the one at issue. The district court, without express findings, rejected


                                              10
appellant’s argument and declared that respondent has “easement rights over [appellant’s]

lot.”

        We review appeals from civil judgments to determine “whether the evidence

sustains the findings and whether the findings support the conclusions,” and we only

reverse a district court’s findings if they are clearly erroneous. Magnuson, 707 N.W.2d at

743-44 (quotation omitted).      However, the legal effect of an unambiguous written

document is a question of law and is subject to de novo review. Apitz, 863 N.W.2d at 439.

        Here, the restrictive covenant plainly states that only single-family residences can

be built on Lake of the Woods Estates properties. It says nothing concerning lake-access

easements. The prohibition of all but private residences appears in the context of the other

restrictions on use of the land for manufacturing, commercial enterprises, or farming.

Nothing in the covenant restricts easements for lake-access purposes which, if anything,

seem generally consistent with the enjoyment of a single-family residential area. The

district court correctly declined to adopt appellant’s reading of the restrictive covenant.

        B. 2011 Lake of the Woods County Zoning Ordinance

        Appellant also argues that the 2011 Lake of the Woods County Zoning Ordinance

restricts the easement. Section 106 of the ordinance states that it is not intended to “repeal,

abrogate, or impair any existing easements.” Lake of the Woods County, Minn., Zoning

Ordinance § 106 (Oct. 3, 2011). The easement over appellant’s property was created in

1993. The 2011 ordinance does not affect the easement at issue.

        Affirmed in part, reversed in part, and remanded.




                                              11
