Ellen Kalahar-Grissom, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0692

Ellen Kalahar-Grissom,
Appellant,

vs.

Marvin W. Stroschein, et al.,
Respondents.

Filed March 8, 2021
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Morrison County District Court
File No. 49-CV-17-1071

Rory C. Mattson, Lauren M. Hoglund, Messerli & Kramer, P.A., Minneapolis, Minnesota
(for appellant)

Jonathan D. Wolf, Rinke Noonan, St. Cloud, Minnesota (for respondents)

Considered and decided by Slieter, Presiding Judge; Je sson, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Following summary-judgment motions from both parties, appellant challenges the
district court’s denial of her motion and th e granting of respondents’ motion. Because
genuine issues of material fact exist re garding the “continued and apparent use” and
“necessity” of the claimed imp lied easement to the property by appellant, we reverse the

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district court’s grant of summary judgment to respondents and affirm its denial of summary
judgment to appellant.
FACTS
Appellant Ellen Kalahar-Grissom and re spondent Marvin W. Stroschein are
siblings. In 1993, their mother conveyed the northwest quarter of a section (640 acres) of
property located in Darling Township, Morrison County, to appellant via two separate
quitclaim deeds:1
230th Street___

North↑

The first deed conveyed the northern half of appellant’s property, and the second
deed conveyed the southern half of appellant’s property. The second deed stated that the
conveyance was “subject . . . to a 33 foot wi de easement for ingress and egress across the
existing roadway running generally east and west across the middle of [the property] from
the East line of [the property].” This is the line that runs horizontal through the middle of
the property in the diagram above.

1 This image is not to scale a nd is intended only to provide th e reader with a sense of the
areas in dispute.

130th Avenue
A

Appellant’s
property
B

Respondents
C

Respondents
D

Respondents

3
After being denied access to her property through this easement, appellant sued
respondents alleging this easement language established her rights to an express or implied
easement through the property. See Kalahar-Grissom v. Stroschein, A18-1135, 2019 WL
510055 (Minn. App. Feb. 11, 2019). Our court reversed the district court’s conclusion that
this language created an express easement to appellant, determining that the language
instead reserved an expr ess easement for mother. Id. We remanded, however, for
additional proceedings regarding whether appellant possessed an implied easement.2 Id.
Appellant claims an implied easement on a path running from 130th Avenue in the
east along the boundary line between parcels B and D, continuing along the border between
parcels A and C. Id. at *1-2.
On remand, the parties filed competing motions for summary judgment. The district
court determined that appellant alleged “no facts” to estab lish that an implied easement
existed at the time she received the property from her mother. Therefore, the district court
granted summary judgment in favor of respondents, denied appellant summary judgment,
and dismissed all claims.3 This appeal follows.

2 Because it determined that their mother possessed an express easement, the district court
did not address appellant’s claim to an implied easement.
3 Appellant also claimed nuisance and breach of quiet enjoyment and respondents claimed
adverse possession. All such claims were dismissed, as th e district court through its
summary-judgment ruling determined that appellant had no easement rights.

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DECISION
Appellant argues that the district court did not consider evidence alleged in the
summary-judgment record which she believes establishe d “continued and apparent use”
and “necessity” of the alleged easement property as required to create an implied easement.
Summary judgment is appropriate 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.
Appellate courts review de novo whether a genuine issue of material fact exists or whether
the district court erred in its application of the law. See Montemayor v. Sebright Prod.,
Inc., 898 N.W.2d 623, 628 (Minn. 2017). “[T]he moving party has the burden of showing
an absence of factual issues, and the nonmoving party has the benefit of that view of the
evidence most favorab le to [it].” Id. (quotations omitted). “All doubts and factual
inferences must be resolved against the moving party.” Id. (quotation omitted).
In considering whether an implied easement exists, our court examines three factors:
(1) a separation of title; (2) th e use which gives rise to the
easement shall have been so long continued and apparent as to
show that it was in tended to be perman ent; and (3) that the
easement is necessary to the be neficial enjoyment of the land
granted.

Lake George Park, LLC v. IBM Mid-Am. Emps. Fed. Credit Union, 576 N.W.2d 463, 465
(Minn. App. 1998), review denied (Minn. June 17, 1998). We are to look at the factors as
they existed at “the time of severance.” Id. “Except for the necessity requirement, [the
other] factors are only aids in determining whether an implied easement existed.” Clark v.
Galaxy Apartments, 427 N.W.2d 723, 726 (Minn. App. 1988). “Necessity” means that the

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easement be “more than mere convenience.” Id. at 727. The party asserting an implied
easement exists has the burden of establishing necessity. Id.
The parties do not dispute, and the reco rd establishes, that the first factor,
(1) separation of title, exists. The parties di spute the remaining two factors: (2) whether
use of the alleged easement property was “so long continued and apparent as to show that
it was intended to be permanent,” and (3) whether the alleged easement property was
“necessary” to access appellant’s property at the time of separation. Id. Because genuine
issues of material fact exist for each contested factor, summary judgment is inappropriate.
Continued and Apparent Use
To established “continued and apparent” us e of the easement property, appellant
submitted an affidavit from district court J udge Douglas Anderson who was the attorney
that drafted the land-transfer deeds in 1993. 4 Anderson states that “based on his review
and recollection . . . it was the intent of [their mother] to maintain ac cess to the parcel to
the West that she conveyed to [appellant], and that [their mother’s] family had always used
the ‘existing road’ to [access the parcel] in the past.” (Emphasis added.) The ‘existing
road’ refers to the easement property. He added that the easement “was the only practical
means of ingress and egress to [appellant’s] Parcel, and [their mother] intended to maintain
access by way of the ‘existing ro ad’ because that is how she and her family had always
accessed [appellant’s] Parcel.” Anderson belie ves that it was the mother’s “intent” to
provide an ingress and egress “s o the property would not be landlocked.” He concluded,

4 Judge Anderson was a district court judg e in Morrison County from 2008 until his
retirement in 2018, and was retired at the time of his affidavit.

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“it was generally accepted and understood among the family that the [easement land] was
how [appellant’s] parcel would be accessed.”5
Appellant also submitted her own answers to respondents’ interrogatories. In
response to a question asking if she used the ea sement property on or prior to 1993, she
indicates that “prior” to the conveyance she us ed “the land” for “hayrides, deer hunting,
sighting in rifles, snowmobiling, rounding up cows that escaped the pasture (from the SE
quarter of [the property]), and picking lilacs near the home stead on the NE corner of [the
property].” She states that she “has used the entire portion of the easement, as have other
family members, most notably during the deer hunting season traveling to deer stands, from
cabin to cabin, or when looking for deer.” She also indicated family members have used
the easement “numerous” times, though she does not specify a timeline for this latter use.
Respondents argue that appellant’s responses to the interrogatories are vague as to
the timeframe of usage and description of the alleged easement and, therefore, do not
establish facts to support a finding of “c ontinued and apparent use” at the time of
severance—when the 1993 deeds were finalized. Additionally, they presented an affidavit
from respondent Marvin W. St roschein which states that appellant “never” used the
purported easement land because it was “unpa ssable” as it was a swamp or wetland. He

5 Respondents argue that Ande rson’s affidavit is inadmissible hearsay and, hence, ought
not be considered for summary judgment. A ffidavits in support of or against summary
judgment should be “made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant is competent to testify on matters stated.” Minn. R.
Civ. P. 56.03(d). Some of Anderson’s testim ony is apparently related to his recollection
of the grantor’s intent but he also speaks to his own recollections. In addition, the deed,
which has been recorded, incl udes the easement language a nd supports appellant’s claim
as to how the parcel was accessed.

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also asserts that rather than using the purported easement land to access her property,
appellant had their permission to use (and actually did use) a different path through
respondents’ property to access her land.
Respondent Marvin W. Stroschein’s spouse indicated in an affidavit that she had
“never” seen anyone use the easement property and that appellant and family members had
always used an alternative path to access vari ous parts of the larger property. Affidavits
from two family friends also state that they observed appellant using the alternative path
but “never” observed appellant using the alleged easement land.
We first recognize that, pursuant to Clark, “continuous and apparent use” of the
easement property, while it is to be “considere d,” is not required to establish an implied
easement. 427 N.W.2d at 726. This suggests that a failure by the non-moving party to
present genuine issues of material fact regard ing this factor is not fatal. However, the
record reflects that both parties presented evid ence of use, and non- use, of the easement
property. Moreover, our court’s previous de cision concluded that the mother created an
express easement for herself on the same prope rty that appellant no w claims an implied
easement. Kalahar-Grissom, 2019 WL 510055, at *5. Therefore, that some of appellant’s
answers to interrogatories do no t establish specific timelines is not fatal to her easement
claim and must be resolved by the fact finder. In sum, the record establishes genuine issues
of material fact as to the “continuous and apparent use” of the claimed easement.
Necessity
As evidence of “necessity,” appellant s ubmitted a township order from 1985. This
order granted the request of the landowner loca ted immediately to the west of appellant’s

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property, to vacate a road (2 30th Street) that ran along the northern edge of that
landowner’s property. The record reveals that 230th Street was, at some point in time prior
to this township order, the only public ro ad which provided access to this property from
the west. This is evidence that an easement was “necessary ” to access the property from
the east. An affidavit from appellant’s son indicates that, without reference to a time frame,
he has “never” used 230th Street to access the property as the road does not extend all the
way to the property.
Respondents provid ed a township reso lution from 1994 which purportedly shows
that 230th Street was never vacated . This resolution indicates that “[n]early all of the
township roads have been established by use and/or prescription or by dedication” and that
“easements for township road s and road right-of-ways lis ted on the attachment” would
become the center lines of the roads. (Empha sis added.) The resolution, which lists all
roads affected, also indicates that the portion of 230th Street along the northern boundary
of the neighboring property was specifically recognized as an easement road. Respondents
assert this establishes that the easement was not necessary to access appellant’s property.
The presence of the 1985 and 1994 township orders, which may be in conflict, create
a disputed fact issue as to whether 230th Stre et was indeed vacated. Because “necessity”
is a required element to establish an implied easement, and because there are genuine issues
of material fact regarding this element, summary judgment was improper.
We conclude that summary judgment for either party was inappropriate because
genuine issues of material fact exist as to “necessity” and “continuous and apparent use.”
For this reason, we affirm the district cour t’s denial of appellant’s motion for summary

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judgment and reverse its decision granting re spondents’ motion for summary judgment.
Additionally, dismissal of the parties’ nuisanc e, quiet enjoyment, and adverse possession
claims must be reversed, as these claims may proceed if the district court concludes that an
implied easement does exist.
Affirmed in part, reversed in part, and remanded.