William M. Dunkley, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2047

William M. Dunkley, et al.,
Appellants,

vs.

Greg W. Hueler, et al.,
Respondents.

Filed September 14, 2020
Reversed and remanded
Bjorkman, Judge

Hennepin County District Court
File No. 27-CV-18-5347

Eric A.O. Ruzicka, Andrew Brantingham, Christopher DeLong, Dorsey & Whitney LLP,
Minneapolis, Minnesota (for appellants)

Tamara O’Neill Moreland, Inga K. (Schuchard) Kingland, Larkin Hoffman Daly &
Lindgren, Ltd., Minneapolis, Minnesota (for respondents)

Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
In this lakeshore property dispute, appellant property owners challenge summary
judgment determining that two easement agreements prohibit them from using a driveway
and private road to access their home. Because the easement agreements do not restrict

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appellants’ proposed modification and use of the driveway and road, we reverse and
remand.
FACTS
This case involves property located on Lake Minnetonka in Orono. It is undisputed
that appellants William and Susan Dunkley own and reside at 2709 Walters Port Lane (the
Walters Port Property). Respondents Greg and Kelli Hueler ow n and reside at 2715 Pence
Lane. In between these two properties is 2710 Pence Lane, which the Dunkleys purchased
in 2017. The Walters Port Property is accessible by Walters Port Lane, a privat e road that
the Dunkleys own. The other two properties are accessible by a driveway that connects to
Pence Lane, a private road. The driveway is located on 2710 Pence. The following map
shows the properties as they existed in 2017:1

1 The Dunkleys produced this color-coded map during discovery, and the highlighting and
text is theirs. “First Dunkley Parcel” refers to the Walters Port Property, “Second Dunkley
Parcel” refers to 2710 Pence, and “Hueler Parcel” refers to 2715 Pence.

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At issue in this case are two easement agreements dating back to the 1980s. In 1982,
the Huelers’ predecessors in interest owned 2715 Pence and the portion of 2710 Pence that
contained the driveway connecting the two properties to Pence Lane. The Huelers’
predecessors in interest sold this portion of 2710 Pence to the Dunkleys’ predecessors in
interest. In connection with the sale, the parties executed a Driveway Easement Agreement
(the driveway agreement), which provides:

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[The Huelers’ predecessors in interest], their successors
and assigns, shall have a perpetual, nonexclusive easement for
driveway purposes over the driveway herein described for
ingress to and egress from [2715 Pence], subject to the right of
[the Dunkleys’ predecessors in interest], [their] successors and
assigns, to use part or all of said driveway for ingress and
egress.
The driveway agreement also stated that the Dunkleys’ predecessors in interest had “the
right to relocate the driveway, except for its point of commencement and its point of
termination.”
At the time the driveway agreement was executed, Pence Lane was a public road.
But in May 1984, t he City of Orono vacate d Pence Lane. The Dunkleys’ and Huelers’
predecessors in interest, a nd a third neighbor, succeeded to ownership of Pence Lane as
tenants in common. In June 1984, the three parties executed a Road and Utility Easement
Agreement (the road agreement).2 The road agreement provides:
That each of the parties hereto, their successors and
assigns, be and hereby are granted a perpetual no n-exclusive
easement for roadway purposes over and across [Pence Lane],
for ingress to and egress from:
a. [The third neighbor’s property];
b. [2710 Pence], owned by [the Dunkleys’
predecessors in interest];
c. [2715 Pence], owned by [the Huelers’
predecessors in interest].

2 On September 26, 1994, the three parties executed a Corrective Road and Utility
Easement Agreement to corr ect a defective legal description. The corrective agreement
did not make any substantive changes and does not affect our analysis.

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The owners of the Walters Port Property were not parties to either the driveway agreement
or the road agreement. As part of the 2017 purchase of 2710 Pence, the Dunkleys acquired
an undivided one-third interest in Pence Lane as tenants in common.
After the purchase, the Dunkleys reconfigured the boundary line between the
Walters Port Property and 2710 Pence. They first combined the two parcels, demolished
the house located on 2710 Pence, and expanded the Walters Port Property house. The y
then subdivided the combined parcel to increase the size of the Walters Port Property and
decrease the size of 2710 Pence , which they intended to sell . The Dunkleys planned to
retain the Walters Port Property and a small portion of 2710 Pence where the d riveway
connects to Pence Lane. And they intended to modify the driveway so it could be used to
access the Walters Port Property. The Huelers objected to the Dunkleys’ proposed use of
Pence Lane and the driveway to access the Walters Port Property.
In March 2018, the Dunkleys commenced this action , seeking to quiet title and to
obtain a declaration that (1) the driveway agreement and the road agreement do not prohibit
them from accessing the Walters Port Property using Pence Lane; and (2) as owners of
2710 Pence and tenants in common of Pence Lane, they have the right to use Pence Lane
and modify and use 2710 Pence to access the Walters Port Property. The Huelers asserted
a counterclaim, seeking, among other relief, a declaration that the Dunkleys may not use
Pence Lane or the driveway to access the Walters Port Property. After discovery was
complete, t he parties filed cross-motions for summary judgment.
The district court granted the Huelers’ motion, concluding that the driveway
agreement and the road agreement prohibit the Dunkleys from using Pence Lane and the

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driveway to access the Walters Port Property. The court reasoned that because the
driveway agreement refers only to 2710 Pence and 2715 Pence, it only permits the parties
to use the driveway fo r “ingress to and egress from” those two properties. And the court
concluded that the road agreement’s reference to only three properties—2710 Pence, 2715
Pence, and the neighbor’s property—means that Pence Lane may not be used to access any
other property.3 The Dunkleys appeal.
D E C I S I O N
I. The Dunkleys have standing to bring this appeal because they continue to own
Pence Lane and a portion of the land under the driveway.
As a preliminary matter, the Huelers contend that the Dunkleys lack standing
because the ir ownership status has changed since this case began. “Standing is the
requirement that a party has a sufficient stake in a justiciable controversy to seek relief
from a court.” State by Humphrey v. Philip Morris Inc. , 551 N.W.2d 490, 493 (M inn.
1996). A party has standing on appeal if her personal rights are “injuriously affected by
the underlying adjudication.” Glaze v. State , 909 N.W.2d 322, 325-26 (Minn. 2018)
(quotation omitted).
The Huelers assert that the Dunkleys sold most of 2710 P ence, retaining only “a
small portion of the Driveway” at its point of commencement at Pence Lane. The Dunkleys

3 The Huelers also asserted a counterclaim for breach of contract, alleging the Dunkleys’
construction projects damaged the driveway. Pursuant to the driveway agreement, the
district court ordered the parties to arbitrate that claim and certified the summary judgment
on the declaratory-judgment claim as final . See Minn. R. Civ. P. 54.02 (providing that a
district court may en ter final judgment on fewer than a ll of the claims involved in an
action).

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acknowledged in the district court and on appeal that they sold most of 2710 Pence . But
they contend that they retained an interest in Pence Lane as tenants in common and retained
a portion of the land under the driveway with “an exclusive option to replat” 2710 Pence
in order to use the driveway to access the Walters Port Property.4 The Dunkleys argue that
the summary judgment injuriously affects their remaining property rights.
We are persuaded that the Dunkleys have a sufficient stake in the controversy to
pursue this appeal. Their ownership interests in Pence Lane and a portion of the driveway
and their option to extend the driveway to access the Walters Port Property are adversely
affected by the judgment. Accordingly, they have standing to bring this appeal.
II. The driveway agreement and the road agreement do not preclude the Dunkleys
from using Pence Lane and the driveway to access the Walters Port Property.
Summary judgment is proper if “ there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01. A
party opposing summary judgment must produce competent, admissible evidence that
creates a genuine issue for trial . Twin Cities Metro -Certified De v. Co. v. Stewart Title
Guar. Co., 868 N.W.2d 7 13, 720 (Minn. App. 20 15). We review a grant of summary
judgment de novo to determine whether genuine issues of material fact exist and whether
the district court properly applied the law. Montemayor v. Sebright Prods., Inc. , 898
N.W.2d 623, 628 (Minn. 2017).

4 There is no evidence in the record of the Dunkleys’ transactions, but the parties generally
agree on these facts.

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A. The driveway agreement does not prohibit the Dunkleys from using the
driveway to access the Walters Port Property because they own the land
under the driveway.
An easement is “an interest in land in the possession of another which entitles the
owner of such interest to a limited use or enjoyment of the land in which the interest exists.”
Minneapolis Athletic Club v. Cohler, 177 N.W.2d 786, 789 (Minn. 1970). The express
grant of an easement is a contract. Lindberg v. Fasching , 667 N.W.2d 481, 487 (Minn.
App. 2003), review denied (Minn. Nov. 18, 2003). The scope of an express easement
“depends entirely upon the cons truction of the terms of the grant.” Bergh & Mission
Farms, Inc. v. Great Lakes Transmission, Inc., 565 N.W.2d 23, 26 (Minn. 1997) (quotatio n
omitted). “[T]he extent of an easement should not be enlarged by legal constructio n
beyond the objects originall y contemplated or expressly agreed upon by the parties.”
Minneapolis Athletic Club, 177 N.W.2d at 789-90.
The grant of an easement limits the parties’ right to use the property, so that both
the grantor (i.e., the owner of the land on which the easement i s located) and the easement
holder can reasonably enjoy the property. Giles v. Luker, 9 N.W.2d 716, 718 (Minn. 1943).
“Generally, the grant of an easement over land does not preclude the grantor from using
the land in a manner not unreasonably interferin g with the special use for which the
easement was acquired.” Minneapolis Athletic Club , 177 N.W.2d at 789; see also
Restatement (Third) of Property: Servitudes § 4.9 cmt. c (2000) (“The person who holds
the land burdened by a[n] [easement] is entitled to make all uses of the land that are not
prohibited by the [easement] and that do not interfere unreasonably with the uses
authorized by the easement . . . .”); 28A C.J.S. Easements § 223 (2020) (providing that the

9
easement holder “can claim no other limita tion on the rights of the grantor than those
expressed in the grant or necessarily implied in the right of reasonable enjoyment”).
Here, the parties dispute the extent to which the Dunkleys, the grantors, can use the
driveway. The Dunkleys contend that t hey can use the driveway in any manner they
want—including to access the Walters Port Property —as long as their use does not
unreasonably interfere with the Huelers’ right to use the easement. The Dunkleys argue
that their right to use the driveway flows from their status as fee owners of 2710 Pence (the
land underlying the driveway), and not from the driveway agreement ; it is the Huelers
whose right to use the driveway depends entirely on the easement grant. In contrast, the
Huelers contend that the terms of the driveway agreement control and that its p lain
language only permits the Dunkleys to use the driveway to access 2710 Pence because the
agreement does not specifically identify the Walters Port Property. The Dunkleys have the
better argument.
Both parties cite the general rules that the scope of an easement “depends entirely
upon the construction of the terms of the grant,” Bergh, 565 N.W.2d at 26 (quotatio n
omitted), and “should not be enlarged by legal construction beyond the objects original ly
contemplated or expressly agreed upon by the parties,” Minneapolis Athletic Club , 177
N.W.2d at 789-90. The caselaw they cite is instructive. In Minneapolis Athletic Club, the
grantor intended to build a skyway 16 feet above an alle y—the easement at i ssue. 177
N.W.2d at 788. The supreme court reasoned that the express grant of the easement did not
limit the grantor’s right to use the air above the alley or give the easement holders the right
to have the alley kept open to the sky. Id. at 789-90. And the court concluded that the

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grantor’s construction of a skyway did not unreasonably interfere with the easement
holders’ use of the alley as a right-of-way, the purpose for which the easement was created.
Id. at 790. In Bergh, the supreme court likewi se focused on the express terms of the
easement, concluding that it unambiguously permitted the easement holder’s use and
refusing to read in additional limitations on the easement holder’s rights. 565 N.W.2d at
26-27.
These rules establish that the rights of the easement holder, not the rights of the
grantor, depend entirely on the grant. Only the Huelers’ right to use the driveway depends
on the driveway agreement ; the Dunkleys’ right to use the driveway derives from their
ownership of 2710 Pence. See Restatement (Third) of Property: Servitudes § 4.9 cmt. c
(providing that an easement “carves out specific uses” for the holder and that “[a]ll residual
use rights remain” in the grantor); see also 28A C.J.S. Easements § 224 (2020) (stating that
“without expressly reserving the right, the [grantor] may herself use the [easement], or
permit others to do so”). As owners, the Dunkleys’ ability to modify and use the driveway
to access the Walters Port Property is limited only by the terms of the driveway agreement
and the common-law prohibition on unreasonable interference with an easement holder’s
use of the easement.
We turn first to the driveway agreement, which states, in relevant part :
[The Huelers’ predecessors in interest], their successors
and assigns, shall have a perpetual, nonexclusive easement for
driveway purposes over the driveway herein described for
ingress to and egress from [2715 Pence], subject to the right of
[the Dunkleys’ predecessors in interest], his successors and
assigns, to use pa rt or all of said driveway for ingress and
egress.

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The driveway agreement provides that the Dunkleys have the right to use the driveway “for
ingress and egress.” But it is silent as to what properties the Dunkleys can access using the
driveway. And it st ates that the easement is “nonexclusive.” This is significant. An
exclusive e asement may restrict the grantor’s ability to use the easement beyond the
common-law prohibition on unreasonably interfering with the easement holder’s use. See
Apitz v. Hopkins, 863 N.W.2d 437, 440 -41 (Minn. App. 2015) (explaining how terms and
circumstances govern effect of an “exclusive” easement). In short, nothing in the terms of
the easement grant prohibits the Dunkleys’ proposed modification and use of the driveway.
The Huelers point to the language prohibiting both parties f rom altering the
driveway’s termination point. We are not persuaded. As t he map demonstrates, the
driveway begins at Penc e Lane and splits into two paths before it terminates . One path
continues south to 2715 Pence, and the other path curves toward the house on 2710 Pence.
The Dunkleys’ proposed use of the driveway impacts only the latter path. For the path that
reaches 2715 Pence —the path that the Huelers use —the driveway’s termination point
remains the same. The Dunkleys’ proposed use of the driveway does not modify the
termination point in which the Huelers have an interest.
B. The road agreement does not prohibit the Dunkleys from using Pence
Lane to access the Walters Port Property because th ey own Pence Lane
as tenants in common.
The relevant portion of the road agreement provides:
That each of the parties hereto, their successors and
assigns, be and hereby are granted a perpetual non -exclusive
easement for roadway purposes over and across [P ence Lane],
for ingress to and egress from:

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a. [The third neighbor’s property];
b. [2710 Pence], owned by [the Dunkleys’
predecessors in interest];
c. [2715 Pence], owned by [the Huelers’
predecessors in interest].

While the road agreement specifically lists three properties, it does not expressly provide
that the parties may only use Pence Lane to access those three properties. And it does not
otherwise effectuate such a restriction because the parties’ rights in Pence Lane do not
derive entirely from the r oad agreement. Rather, the parties have the right to use Pence
Lane because they own it as tenants in common.
When parties own property jointly, “each cotenant has at all times the right to enter
upon and enjoy every part of the common estate.” Petraborg v. Zontelli, 15 N.W.2d 174,
177 (Minn. 1944). A cotenant may use the common estate “in the same manner as if he or
she were the sole owner,” but cannot exclude the other cotenants. 20 Am. Jur. 2d
Cotenancy and Joint Ownership § 41 (2020). Cotenants cannot interfere with each other’s
right of possession of the property, but the right of possession may be restricted by
agreement between the cotenants. 20 Am. Jur. 2d Cotenancy and Joint Ownership § 40
(2020).
We begin by noting the limited purpose of the road agreement. It grants the City of
Orono an easement for the installation and maintenance of utilities following its vacation
of Pence Lane. For the three property owners (and their successors and assigns) the road
agreement creates property rights and responsibilities that run with the land. For example,
the road agreement would permit a future purchaser of part or all of a listed property to use
Pence Lane even if that purchaser did not also obtain an interest in Pence Lane as a tenant

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in common. In other words, t he road agreement affirmatively establishes rights that run
with the land. But it does not alter the rights of the Dunkleys and the other tenants in
common to use Pence Lane to access any property .
III. The Dunkleys’ proposed u se of the driveway will not unreasonably interfere
with the Huelers’ use of the easement.

Because the easement agreements do not expressly prohibit the Dunkleys’ proposed
use of Pence Lane and the driveway , the only constraint is the co mmon-law rule that a
grantor cannot unreasonably interfere with an easement holder’s special use of the
easement.5 In their cross-motions for summary judgment, the parties disputed whether the
Dunkleys’ proposed modification and use of the driveway would unreasonably interfere
with the Huelers’ use of the driveway. The district court did not decide the issue , as it
concluded that the two agreements prohibit th e Dunkleys’ proposed use of the driveway.
Because the parties do not contend that the relevant facts are in dispute and our review of
summary judgment is de novo, we consider whether the Dunkleys’ proposed use
unreasonably interferes with the Huelers’ use of the driveway to access their property. See
McGuire v. Bowlin, 932 N.W.2d 819, 828 (Minn. 2019) (reviewing an issue on appeal from
summary judgment that the parties litigated but the district court did not decide ).
A grantor’s use of an easement unreasonably interferes with the easement holder’s
special use when it “leads to a material increase in the cost or inconvenience to the

5 The Huelers also contend that the Dunkleys may not use the driveway to access the
Walters Port Property because the Orono Code of Ordinances allows only two residential
lots to be served by a private driveway. We do not decide this issue because the City of
Orono is not a party and its ordinances are not at issue in this case.

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easement holder’s exercise of its rights.” 28A C.J.S. Easements § 223. Our supreme court
concluded this high threshold was not met with respect to a non-exclusive, right-of-way
easement where t he grantor “leaves a space of sufficient width and height and with
sufficient light to allow its convenient use for the purpose for which it was created.”
Minneapolis Athletic Club , 177 N.W.2d at 790. And easement holder s have not
demonstrated unreasonable interference when the y cannot show that construction and
maintenance of a road easement has “unnecessarily injured” their use of the easement as a
right-of-way. Cf. Bruns v. Willems, 172 N.W. 772, 772, 774-75 (Minn. 1919) (analyzing
whether easement holder’s use of the easement interfered with the grantor’s rights).
As the party alleging a violation of the easement agreements, the Huelers have the
burden to show unreasonable interference. The Dunkleys argue that this court should
instruct the district court to grant summary judgment in their favor because the Huelers did
not meet this burden and there is no record evidence that their proposed use of Pence Lane
and the driveway to acce ss the Walters Port Property would unreasonably interfere with
the Huelers’ use of the driveway to access 2715 Pence. This argument has merit.
To support their claim o f unreasonable interference, t he Huelers point to the
prospect of increased traffic if the Dunkleys are permitted to use the driveway to access the
Walters Port Property. And they contend that, when the Dunkleys began to modify the
driveway, construction vehicles often blocked it, interfering with the Huelers’ ability to
enter and exit their property.
The Dunkleys maintain that this purported evidence does not defeat summary
judgment because it recites conclusory allegations that lack record support. We agree. To

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prevent a grantor’s use of land over which an easement runs, the easement holder must not
only show interference but that the interference is unreasonable. The summary-judg ment
record does not support a conclusion that the Dunkleys’ use of the driveway to access one
additional home will interfere with the Huelers’ ability to access their home to any
meaningful extent. Nor does the record convince us that further construction activities will
unreasonably impact the Huelers’ use of the driveway. Indeed, we previously rejected such
an argument in a case with similar facts, holding: “Although an occasional inability for
cars to pass each other on [a] common driveway and occasional blocking of the driveway
by delivery and service trucks is certainly inconvenient, it is difficult to conclude that those
harms constit ute a great and irreparable injury justifying an injunctio n. ”
Athanasakoupolous v. Bogart , No. A18-0045, 2018 WL 6729752, at *5 (Minn. App. Dec.
24, 2018) , review denied (Minn. Mar. 19, 2019) . While Athanasakoupolous is not
precedential, its reasoning is persuasive. At most, an occasional increase in traffic on the
driveway or blocking by construction vehicles may be a minor inconvenience. It does not
rise to the level of unreasonable interference with a non-exclusive easement.
Because the undisputed evidence shows that the Dunkleys’ proposed use of Pence
Lane and the driveway will not unreasonably interfere with the Huelers’ use of the
easement, the Dunkleys are entitled to summary judgment. Accordingly, we reverse
summary judgment in favor of t he Hu elers and remand for the district court to enter
judgment in favor of the Dunkleys.
Reversed and remanded.