Schwab v. Timmons

589 N.W.2d 1 (1999)

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Nature of the Case

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Facts

Prior to 1854, the property involved was owned by the United States and was divided into three lots: Lot 2, the northernmost lot; Lot 3; and Lot 4, the southernmost lot. In 1854, the United States granted by patent Lot 4 to Ingebret Torgerson, but retained Lots 2 and 3. At the time that Lot 4 was severed from Lots 2 and 3, the United States did not retain a right-of-way through Lot 4 to get to Lots 2 and 3. At the time of this conveyance by the United States, the eastern boundary of the lots extended to the east to what is now a public roadway. The lots were comprised of property both above and below the bluff with access to a public roadway from above. In 1882, the United States granted Lots 2 and 3 to Halvor Anderson. After the United States granted the lots, they were further subdivided into parcels. They were never fully owned by one person or entity. Ps, McCormick, and Schwab own two adjacent parcels with over 1200 feet of frontage and over nine acres of property. South of the Schwabs' parcels is a parcel owned by the Timmons within Lot 2, followed to the south by a parcel owned by the Lenzes, also in Lot 2; all of the remaining parcels follow sequentially to the south, located in Lots 3 and 4, with the parcel owned by Hobler being the southernmost parcel located at the southern boundary of Lot 4. The Schwabs' parcels were originally purchased by James' parents in the 1940s and were later gifted to James in 1965 and 1974. At purchase, the Schwabs' parcels extended east to property above the bluff where there was access to a public roadway and a house. Sometime after the 1974 inheritance, the Schwabs conveyed the property above the bluff to James' relatives and retained the parcel below. McCormick also inherited her parcel which originally included land above and below the bluff with highway access from above, and she conveyed the property above the bluff to a third party, retaining the parcel below. Ps now claim their only access is over the land to the south, owned by Ds, for which they do not have a right-of-way. Ps asked the Village to extend a public road to them, but it refused. Ps brought this declaratory judgment action seeking an easement by necessity or by implication to gain access to their land. The court dismissed, and the court of appeals affirmed. Ps appealed.