#04-2998 Easement Proceedings - Laserfiche WebLink

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23. There was testimony at the hearing regarding certain documents that the City of Orono often requires from persons who are subdividing their land. Such documents might include something that could be considered a grant of rights in the driveway easement. Apparently no such document has been executed and, therefore, discussion of such a document would be somewhat speculative. In addition, it would not be proper to determine the specific rights of the City of Orono in such a document since it has not been made a party to this proceeding. 24. Despite the difficulties noted in the previous three paragraphs, both parties to this proceeding have indicated in their post-trial memoranda their willingness to have the Court deal with the additional issue in some fashion. In that regard, the case of Giles v. Luker, 215 Minn. 256, 9 NW2d 716 (1943) is helpful. (In fact, although Petitioners cite 8 Minnesota cases in their Post-hearing Memorandum and Defendant cites 4 in hers, the Giles case is the only one cited in both.) The plaintiff in Giles owned a 6.3 acre parcel of land together with "the right to use as a highway the road or driveway now located upon that portion of said Lot 1, lying east of the tract heretofore conveyed." The Court determined that the plaintiff could allow gravel trucks to use the easement for access to a gravel pit on plaintiffs land. The Court at page 260 cited a New Hampshire case for the following proposition: "Nor is the owner of the way limited to its use by himself in propria persona. The way belongs to him as his property. All persons having occasion may, with his pennission, transact business with him by passing to and fro over the way." The Court went on to limit the use by trucks somewhat in the interests of preventing "unnecessary injury to defendant's property or business." No allegation was made in the present case that Defendant Dunn's property would be injured if utilities in Tract G were installed and/or maintained by a utility company instead of by the owners of Tract H themselves, or if the driveway over Tract G were installed and/or maintained by the City of Orono instead of by the owners of Tract H themselves. Neither did the evidence presented give a hint of such injury. Thus, in accordance with Giles it would seem proper for the Petitioners (Van Eeckhouts) to allow utility companies to install and maintain in Tract G utilities serving 12