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VAicman v. Lawrenc*Court File No. CT 93-12901 <br />portion of Tract E to be used for a roadway. Rather, Defendants <br />claim they have been provided ••with the originally agreed upon <br />option to develop [that portion of Tract E] as we see fit in the <br />future.•* (J* Lawrence Aff. ^ 13) • <br />Although not directly addressed by the parties, the precise <br />issue in this motion is whether the term "subject to/^ as used in <br />the 1976 deed and in the 1978 easement agreement, is <br />sufficient as a matter of law to create a non-exclusive easement <br />over the entire portion of Tract E. Ordinarily, the use of the <br />language "subject to" in a deed purporting to reserve an easement <br />is not sufficient to create express easement: <br />fallthough in certain cases tue use of such [subject to] <br />tenninology has been held sufficient to reserve an <br />^esement, it should not be employed for this purpose <br />because it does not clearly express the intent of the <br />parties. •Siibject to^ language is commonly used in a <br />deed to refer to existing easements, liens, and real <br />covenants that the grantor wishes to exclude from <br />warranties of title. <br />Jon W. Bruce & James W. Ely, The Law of Easements_and Mgep^es Jn <br />Land, f 3.05[3] (1988). In addition, in Wem^r v. Sample, 259 <br />Minn. 273, 107 N.W.2d 43 (1961), the Minnesota Supreme Court held <br />that the use of the term "subject to" in a warranty deed which <br />purportedly reserved an casement did not create an easement but <br />presupposed an existing easement. Cf., trojan Vj;—Stuebner, 429 <br />N.W.2d 918 (Minn. Ct. App. 1988), pey^ denied December 16, 1988 <br />(citing Werner•s holding but distinguishing it on the basis of the <br />application of the Torrens Act to an unrecorded easement).