Berg v. Ting

886 P.2d 564 (1995)

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Nature of the Case

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Facts

Berg (P) owns land next to land owned by Cahill. The Youngs owned the land on the other side of Cahills’ property. Cahill and Young agreed to subdivide their land. P opposed the application. The parties settled their differences wherein P would get an easement over Cahill’s property. The grant was recorded and gave P an easement on tracts A and B which were to be defined once the application was approved and recorded. It took 4 years for the plat application to be approved and when it was the property described by the grant of easement did not represent the area where the easement was to be located. As finally approved, the application contained six, not seven lots, and the lots were reconfigured and redesignated. The description of tract B as part of the subservient estate describes the easement as being over a portion of lots F and G as in the finally approved short plat. There is no lot G in the finally approved short plat. Ting (D) purchased the Cahills’ property, and their deed did not mention P's easement. D refused to acknowledge it. P sued D to quiet title. The trial court held that the easement was void as violative of the statute of frauds. P appealed, and the Court of Appeals ruled the same but then allowed P enforcement under part performance. D appealed.