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VjtitJMA V. Lmvvncm <br />Court ril® Ho. CX 93-12f01 <br />portion of Tract E to be used for a roadway. Rather. Defendants <br />clain 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. f 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 />both 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 -suyject to" in a deed purporting to reserve an easement <br />is not sufficient to create an express easement: <br />[allthough in certain cases the use of such [subject to] <br />borminology has been held sufficient to reserve an <br />easement, it should not be employed for this purpose <br />because it does not clearly express the intent of the <br />parties. 'Subject 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 6 James W. Ely, The Lav of Easements in <br />- f 3.05[3] (1988). In addition, in W?rn?r ,Y»—SfllBElfi# 259 <br />Minn. 273, 107 M.W.2d 43 (1961), the Minnesota Supreme Court held <br />that the use of the *.erm "subject to" in a warranty deed which <br />purportedly reserved an easement did not create an easement but <br />presupposed an existing easement. Hoifth V.i—StUfifensr# 429 <br />M.W.2d 918 (Minn. Ct. App. 1988), r?v^ 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).