                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1166

                                   Jeffrey Apitz, et al.,
                                        Appellants,

                                            vs.

                                  Terry Hopkins, et al.,
                                      Respondents.

                                  Filed May 18, 2015
                                Reversed and remanded
                                   Peterson, Judge

                               Itasca County District Court
                                 File No. 31-CV-13-1044

Matthew H. Hanka, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota
(for appellants)

Brian C. Bengtson, Lano, O’Toole & Bengtson, Ltd., Grand Rapids, Minnesota (for
respondents)

       Considered and decided by Worke, Presiding Judge; Peterson, Judge; and

Connolly, Judge.

                                    SYLLABUS

       A deed that grants an “exclusive easement for ingress, egress, and utility

purposes” is ambiguous, and the interpretation of the easement grant is a question of fact.

                                      OPINION

PETERSON, Judge

       This appeal is from a summary judgment granted to respondent-owners of a

dominant estate in a declaratory judgment action brought by appellant-owners of the
servient estate to determine the scope of an “exclusive easement for ingress, egress and

utility purposes.” Because the language granting the easement is ambiguous and the

interpretation of the easement grant presents a question of fact, we reverse and remand.

                                         FACTS

      Appellants Jeffrey and Joanne Apitz own property in Itasca County that is

described as Lot 2, Block 1, Bluffs of Shoal Lake (Lot 2). Respondents Terry and Kelly

Hopkins own an adjoining lot, described as Lot 3, Block 1, Bluffs of Shoal Lake (Lot 3).

Both lots were formerly owned by Allen and Christine Lehn, who sold Lot 3 to

respondents in 2006 and sold Lot 2 to Michal Nash in 2007. When the Lehns sold Lot 3

in 2006, they agreed to convey an access easement across Lot 2, but they failed to do so.

To correct this error, when the Lehns sold Lot 2 to Nash in 2007, they reserved an

easement to themselves, which they then conveyed to respondents by quitclaim deed. In

the deed that the Lehns used to convey Lot 2 to Nash, the following clauses were used to

create the easement:

             Reserving unto the Grantors [the Lehns], their heirs and
             assigns, an exclusive easement for ingress, egress and utility
             purposes over, under and across the East 33 feet of Lot 2,
             Block 1, Bluffs of Shoal Lake for the benefit of Lot 3, Block
             1, Bluffs of Shoal Lake.

             The maintenance of said easement shall be the sole
             responsibility of the owner(s) of Lot 3, Block 1, Bluffs of
             Shoal Lake.

Julienne Brauer purchased Lot 2 from Michal Nash in 2008, and appellants purchased

Lot 2 from Brauer in 2012.




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      After appellants purchased Lot 2, respondents attempted to exclude appellants

from the easement property by erecting a fence and posting “private drive” signs.

Respondents also removed trees from the easement property. Appellants brought an

action against respondents in district court seeking a declaratory judgment that

respondents could not exclude them from reasonable use of the easement property,

requesting an injunction to prohibit respondents from using the easement property in

excess of the use granted by the easement, and asking for damages in trespass.

      The district court granted partial summary judgment to respondents based on its

interpretation of the easement language as a matter of law. The district court construed

the term “exclusive easement” as the right to exclude all others, including the “right to

exclude [appellants] from the [easement property].” The parties stipulated to dismissal of

all claims “other than the declaratory judgment claims,” and this appeal followed.

                                         ISSUE

      Does an “exclusive easement for ingress, egress and utility purposes” grant the

easement owner the right to exclude the owners of the servient estate from the easement

property?

                                      ANALYSIS

      Upon review of a summary judgment, the appellate court “must determine whether

there are any genuine issues of material fact and whether a party is entitled to judgment

as a matter of law.” Citizens State Bank v. Raven Trading Partners, Inc., 786 N.W.2d

274, 277 (Minn. 2010). The legal effect of an unambiguous written document may be

decided by the district court as a question of law and is subject to de novo review. See


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BankCherokee v. Insignia Dev., LLC, 779 N.W.2d 896, 903 (Minn. App. 2010) (stating

that the interpretation of an unambiguous agreement is a question of law subject to de

novo review), review denied (Minn. May 18, 2010); see also Scherger v. N. Natural Gas

Co., 575 N.W.2d 578, 580-81 (Minn. 1998) (applying de novo review to issue of whether

easement agreement was ambiguous). But if the terms of an instrument of conveyance

are ambiguous, interpretation of the instrument is a question of fact, and summary

judgment is inappropriate. See Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346

(Minn. 2003) (“[T]he interpretation of an ambiguous contract is a question of fact. . . .”);

Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966) (“It is generally

recognized that summary judgment is not appropriate when the terms of a contract are at

issue and any of its provisions are ambiguous or unclear.”).

       An easement is “an interest in land possessed by another which entitles the grantee

of the interest to a limited use or enjoyment of that land.” Larson v. State, 790 N.W.2d

700, 704 (Minn. 2010) (quoting Scherger, 575 N.W.2d at 580). An “access easement” is

“[a]n easement allowing one or more persons to travel across another’s land to get to a

nearby location, such as a road.”        Black’s Law Dictionary 586 (9th ed. 2009).

“Generally, the grant of an easement over land does not preclude the grantor from using

the land in a manner not unreasonably interfering with the special use for which the

easement was acquired.” Minneapolis Athletic Club v. Cohler, 287 Minn. 254, 258, 177

N.W.2d 786, 789 (1970). The easement holder acquires only the “particular privileges”

granted by the easement. Id.




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       “When an easement is by express grant, its extent depends entirely upon the

construction of the terms of the grant.” Highway 7 Embers, Inc. v. Nw. Nat’l Bank, 256

N.W.2d 271, 275 (Minn. 1977); see Larson, 790 N.W.2d at 704 (“The written instrument

creating the easement . . . defines the scope and extent of the interest in land.”); Bergh &

Misson Farms, Inc. v. Great Lakes Transmission Co., 565 N.W.2d 23, 26 (Minn. 1997)

(“[T]he extent of an easement should not be enlarged by legal construction beyond the

objects originally contemplated or expressly agreed upon by the parties.” (quotation

omitted)); Lindberg v. Fasching, 667 N.W.2d 481, 487 (Minn. App. 2003) (stating that

“[t]he express grant creating [an] easement is a contract,” and its scope depends entirely

upon the construction of the terms of the easement agreement), review denied (Minn.

Nov. 18, 2003). “When the terms of an easement grant are unclear, extrinsic evidence

may be used to aid in the interpretation of the easement grant; however, when the

language granting the easement is clear and unambiguous, the court’s power to determine

the extent of the easement granted is limited.” Bergh, 565 N.W.2d at 26.

       The district court ruled as a matter of law that the term “exclusive easement”

means that respondents have the right to exclude all others, including appellants, from the

easement property. The meaning of “exclusive easement” has not been addressed in

Minnesota law.

       Although it is not binding precedent for this court, Latham v. Garner, 673 P.2d

1048 (Idaho 1983) is instructive on the meaning of “exclusive” when used to describe an

easement. See Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in

Land, § 1:28, at 1-71 (2012) (recognizing Latham as instructive and noting states’


                                             5
reliance on its analysis). In Latham, the Idaho Supreme Court considered the meaning of

an access easement granted to the easement holders “exclusively for their use, and unto

their successors and assigns forever.” 673 P.2d at 1051-52. The Latham court initially

observed that “an exclusive easement is an unusual interest in land [that] has been said to

amount to almost a conveyance of the fee,” but such easements are “not generally

favored by the courts,” and the intention to create such an easement must be conveyed by

“clear indication.”   Id. at 1050-51.    After noting that “[t]he mere use of the word

‘exclusive’ in creating an easement is not . . . sufficient to preclude use by the owner of

the servient estate,” the Latham court found that the exclusivity language was ambiguous

and subject to multiple interpretations and ruled that the lower court erred by ruling as a

matter of law that the easement was exclusive even as to the owner of the servient estate.

Id. at 1051-52. The Latham court stated:

              The instrument could be interpreted as (1) the grant of an
              easement right of way to the grantee . . . to the exclusion of
              all others, except the grantor; or (2) the grant of an easement
              right of way excluding all others, including the grantor; or,
              (3) as the grant of a fee simple estate to the grantee. Thus, the
              instrument is reasonably subject to conflicting interpretations
              and as such is ambiguous.

Id. at 1052. The court reversed the lower court’s determination “that the easement was

granted for the exclusive use and benefit of the [easement holders],” Id. at 1049, and

remanded so that the lower court could consider “extrinsic evidence of the circumstances

and intentions of the original parties to the easement.” Id. at 1052-53.

       As in Latham, the easement language at issue here is ambiguous and subject to

multiple meanings. Among other interpretations, “an exclusive easement for ingress,


                                             6
egress and utility purposes” could mean that only respondents have access to the

easement property and even appellants are excluded, or it could mean that only

respondents may use the easement for “ingress, egress and utility purposes,” but

appellants retain the right to use the easement property in any manner that does not

unreasonably interfere with respondents’ use of the easement property for these purposes.

       Because “exclusive easement” is ambiguous, the district court erred by granting

respondents summary judgment based on its interpretation of the easement as a matter of

law. We therefore reverse the summary judgment and remand to permit the district court

to make a factual determination regarding the intent of the original parties to the

easement when the Lehns sold Lot 2 to Nash and reserved the easement to themselves.

See Denelsbeck, 666 N.W.2d at 346 (stating that a provision is ambiguous if, based

exclusively on its language, it is subject to more than one meaning). In making this

determination, the district court must consider the original parties’ intent as demonstrated

by the language used to create the easement and by any extrinsic evidence that

demonstrates their intent. See Bergh, 565 N.W.2d at 26 (permitting the district court to

consider extrinsic evidence when terms of an easement are ambiguous).             Extrinsic

evidence may consist of “facts peculiar to the particular easement involved on the

assumption that the grantor intended to permit a use of the easement which was

reasonable under the circumstances and the grantee expected to enjoy the use to the

fullest extent consistent with its purpose.” Farnes v. Lane, 281 Minn. 222, 225-26, 161

N.W.2d 297, 300, (1968); see Latham, 673 P.2d 1052-53 (stating that remand to




                                             7
determine scope of exclusive easement should include consideration of “extrinsic

evidence of the circumstances and intentions of the original parties to the easement”).

                                     DECISION

       Because “exclusive easement for ingress, egress and utility purposes” is

ambiguous and the interpretation of the easement grant is a question of fact, the district

court erred by granting respondents summary judgment.

       Reversed and remanded.




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