Hickerson v. Bender

500 N.W.2d 169 (1993

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Nature of the Case

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Facts

In 1955, Fagan conveyed a parcel of property to Anna Marie and Roy Becker. The deed also granted an easement for ingress to and egress from Gull Lake over the easterly Fifteen (15) feet of the Lot. The easement was to perpetually benefit all present and future owners. The Beckers conveyed to Tincher (1957) who in 1961 conveyed to Swisher. Swisher conveyed to P in 1990. In 1958 Fagan conveyed the servient estate to D. D made improvements between 1958 and 1962 (a house and garage). No mention was made of the easement in D’s deed. No one disputes that passage through the easement with the improvements would be impeded and difficult. P sued D for a declaration of rights. Neighbors testified that they had not seen anyone use the easement since 1959. Others testified that the easement has been used on several occasions when Swisher and P owned the parcel. The trial court ruled that the easement had been extinguished by both abandonment and adverse possession prior to the P’s acquisition. P appealed.