South-Western Legal Studies in Business

Easements May Expire If Not Used
Description Appeals court held that it must be determined at trial if an easement had been abandoned because of non-use or if there was sufficient use to constitute occupancy of the easement. In Minnesota, easements expire after 40 years unless actively used or notice has been filed of intent to use the easement.
Topic Real and Personal Property
Key Words Easement; Dominant Landowner; Abandonment
C A S E   S U M M A R Y
Facts Fasching and Lindberg own adjoining properties on a lake. In 1950, the previous owners signed an easement agreement that provided that each landowner received a "perpetual right of way for road purposes" over a ten foot strip of the other's property. Lindberg asserted his easement rights when he sued Fasching, alleging that Fasching placed objects on the easement property, including trees, a fence, and boulders, that interfere with Lindberg's use of the easement. The trial court granted summary judgment for Lindberg. Fasching appealed.

Reversed. Under Minnesota law, an easement that has not been used for more than 40 years is presumed to have expired unless specific notice of continued use has been filed. Fasching contends that the easement was abandoned because there was no notice filed. Lindberg claims that he has enforced the easement by using it several times a year by walking on it and driving a snowmobile on it. Whether such use occurred, and if it was sufficient to rise to the level of "possession" of an easement must be determined at trial. The court must determine if the use of a limited easement would place a prudent owner or purchaser on notice that the easement exists.

Citation Lindberg v. Fasching, 667 N.W.2d 481 (Ct. App., Minn., 2003)

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