Thompson v. E.I.G. Palace Mall, LLC

657 N.W.2d 300 (2003)

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Nature of the Case

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Facts

Ps are the owners of Fanny Horner's Eating Establishment. The restaurant lies adjacent to the D parking lot. At one time, Paul Bjornsen owned both the restaurant and mall properties. While Bjornsen owned the restaurant, the mall parking lot was purportedly used by restaurant patrons and delivery trucks. Bjornsen deeded the restaurant property to Ps on November 14, 1974. Customer and delivery truck use of the mall parking has continued since the purchase of the restaurant. D sought to develop the parking lot, and Ps opposed this change. Ps sought a judgment recognizing that they had a prescriptive right to use part of the mall parking lot for customer parking and entrance and exit to the restaurant property. If successful, this suit would halt the intended development of the mall parking lot. D had contracted to sell a portion of the lot to C.S.K. Auto, which planned to build an auto parts store on the property. Ps claim that they have occupied the mall parking lot property for more than twenty years and have established open and notorious use and possession for purposes of customer parking, as well as for ingress and egress. D contends that the use of the mall's parking lot by the general public, including the restaurant customers, was permitted because it was not adverse to the mall's interests. Ps argued that they had an implied easement and not just a prescriptive right as averred in their complaint. The court granted summary judgment to D. The court noted that the restaurant has a separate means of street access and available parking on both sides of the restaurant, which does not require the use of the mall property. Ps appealed.