Correspondence - Laserfiche WebLink

Home Browse Search

In Werner, the Court held that for an easement reserved in a warranty deed to be valid, the warranty deed must be duly recorded to preserve notice. Werner, at 275. The Court then held that if the intentions of the parties to the deed were not to create an easement, but rather to incorporate an existing easement, then the existing easement must have been duly recorded, again to preserve notice and to give effect to the intention of the parties. Id. Applying these well- established common law rules, the Court in Werner found that it was clearly not the intentions of the parties to create an easement with the instrument of the deed, because such"subject to easement" language referred explicitly to an easement "now of record upon said premises."Id. No easement was of record upon the premises at that time, so the taker of title lacked proper notice of the servitude. Id. Therefore, because it was contrary to the terms of the deed, and contrary to the manifest intent of the parties ascertained by the unambiguous language of the deed, the Court held that simply having the words "subject to easement" was insufficient to create an easement, finding as a matter of law, that "[s]uch language, of course, does not create an easement; it presupposes an existing easement."Id. Werner is distinguishable from this case. The 1948 Deed did not reference or incorporate an existing easement; instead, it was the intention of the parties to create an easement with the Deed itself. The 1948 Deed was duly recorded. The grantees of the 1948 Deed had proper notice of the easement encumbering Lot 20. Therefore the grantees of the 1948 Deed took title subject to the duly recorded, valid easement, as a matter of law. c. Plaintiffs claim that the 1948 Deed created an easement in gross rather than an appurtenant easement. Under Minnesota law, a driveway easement reserved in the deed by a grantor of land is "either appurtenant to his other lands, or in gross (that is, strictly personal)." Winston, at 402; Anderson v. State, 2007 WL 24982359, *2 (Minn. App. 2007) (unpublished opinion), citing 9