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Home My WebLink AboutPuzak-Wingerd 2011 1340 Baldur Park Road Orono, MN 55391 Mike Gaffron City of Orono 2750 Kelley Parkway Orono, MN 55356 August 10, 2011 Re: Variance Application 11-3520, 1376 Baldur Park Road And Court Order file #27-cv-08-23042 Mr. Gaffron: As new work is being planned to resolve access and parking issues at the end of Baldur Park Road, hopefully the City will take the time to consider a well thought out, long-term solution to this problem. First, the Gronberg survey submitted with the above land use application 11-3520 at 1376 Baldur Park Road is incomplete and inaccurate as follows: 1. The easement for driveway purposes described in Doc. #2513998, burdening Lot 20 and benefitting Lots 21 —33, is not shown. Attached is the court order#27-cv- 08-23042 which affirms the validity of that easement. 2. Also, the driveway easement shown over Wingerd's Lot 20 is incorrect. The "reformed 12' driveway per Doc. No. 2518347" is valid only over Lots 21 —29. The court order also states that"...the (previous) Order (2518347) did not refer to Lot 20 in any way." See Court MEMORANDUM Facts I. b. par. 2 and Analysis III.d.2 par. 3. As you know, adequate access to the neighboring Lots 21-33 has been an issue for many years due to the Wingerds' failure to observe the full width of the above mentioned easement. They have landscaped over part of the easement drastically reducing its width to approximately 14' - 16', and vehicles continuously parked within the easement have exacerbated the problem. The Long Lake Fire Department is on record voicing its concern about the passage of emergency vehicles at the end of Baldur Park Road. The time has come to define a fire lane sufficient to serve Lots 21 —33, approved by the City and enforced by the City. Previously it was proposed that Baldur Park Road be extended over Lots 21 and 22. In so doing, the City snowplow would gain a place to deposit snow to the West of the road on Lot 22. The remainder of Lots 21 and 22 to the East of the road could be purchased by the owners of Lot 20 to create a legally conforming V2 acre lot in the LR-1C zoning district. Enclosed is a sketch showing the possible extension of Baldur Park Road over Lots 21 and 22. The West side of the road from Lot 17 to the end should be posted "No Parking". Until the access issues are resolved, I am opposed to the removal of any pavement from my driveway easement over Lot 20. Now is the time to think this through and get it done right. We could all have a win-win-win situation that would benefit all the neighbors at the end of Baldur Park Road, as well as the City snowplow. Sincerely, Frederick Puzak C: Lili McMillan, Cynthia Bremer, Doug Franchot, Aaron Printup, David Rahn. Melanie Curtis, Joseph Lawder • STATE OF MINNESOTA DISTRICT COURT HENNEPIN COUNTY _ FOURTH JUDICIAL DISTRICT Sandra Benson Wingerd and Harold Court File No.27-cv-08-23042 Wingerd, Plaintiffs, vs. AMENDED ORDER 1350 Baldur.LLC,a Minnesota Limited Liability company,and Frederick Puzak, Defendants. This matter came on for a hearing before the Honorable Cara Lee Neville on January 13, 2009,upon Defendant's Motion for Partial Summary Judgment.Adam W.Heaton,Esq., appeared on behalf of Plaintiff. Joseph S.Lawder,Esq.,appeared on behalf of Defendant. By letter dated April 15,2009,Attorney Patrick Compton indicated that the Court's Order misstated the recording number for the 1848 Deed. There were no other submissions to the Court. Based upon all the files,records and proceedings herein,and the arguments of counsel,the Court hereby makes the following AMENDED ORDER: • 1. Defendant's Motion for Partial Summary Judgment is GRANTED. 2. The Court Declares a current and legally valid appurtenant easement for the benefit of Lots 21-33,and burderti1Lot 20,Block 1,Baldur Park Hennepin County,Minnesota, with the dimensions defined in the Deed to title of May 24, 1948,recorded with the Hennepin County Clerk and Recorder as Document No.2513998,and attached herein. RECEIVED o1,o% City of Orono AUG 0 8 • �e 4 Melanie Curtis e'xvexo'a Planning&Zoning Coordinator CITY OF ORONO Mailing Address: Office Address: Post Office Box 66 2750 Kelley Parkway Crystal Bay,MN 55323 Orono,MN 55356 Office(952)249-4627 • Fax(952)249-4616 _• 3. The Court hereby enjoins Plaintiffs,their agents,and assigns,from interfering with Defendants'use of the Driveway Easement to access and enjoy the properties benefited by such easement. 4. The memorandum attached to this Court's Order dated April 12,2009 is hereby amended to reflect the correct recording number for the 1948 Deed,which is"2513998,"not "251998." 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'r .. .. . • • t ; . . .• t . ..• I — . -__ • STATE OF MINNESOTA DISTRICT COURT HENNEPIN COUNTY FOURTH JUDICIAL DISTRICT Sandra Benson Wingerd and Harold:: Court File No. 27-cv-08-23042 Wingerd, Plaintiffs, vs. ORDER AND MEMORANDUM 1350 Baldur, LLC, a Minnesota Limited Liability company, and Frederick Puzak, Defendants. This matter came on for a hearing before the Honorable Cara Lee Neville on January 13, 2009, upon Defendant's Motion for Partial Summary Judgment. Adam W. Heaton, Esq., appeared on behalf of Plaintiff. Joseph S. Lawder, Esq., appeared on behalf of Defendant. Based upon all the files, records and proceedings herein, and the arguments of counsel, the Court hereby makes the following ORDER: 1. Defendant's Motion for Partial Summary Judgment is GRANTED. 2. The Court Declares a current and legally valid appurtenant easement for the benefit of Lots 21-33, and burdening Lot 20, Block 1, Baldur Park, Hennepin County, Minnesota, with the dimensions defined in the Deed to title of May 24, 1948, recorded with the Hennepin County Clerk and Recorder as Document No. 251998, and attached herein. 3. The Court hereby enjoins Plaintiffs, their agents, and assigns, from interfering with Defendants' use of the Driveway Easement to access and enjoy the properties benefited by such easement. 4. The attached memorandum is incorporated herein by reference. LET JUDGMENT BE ENTERED ACCORDINGLY IT IS SO ORDERED BY THE.OUP' G l Dated �� The Honorable Cara Lee Neville Judge of District Court MEMORANDUM T. Facts. a. Introduction This case arises out of a dispute between owners of adjacent properties on a peninsula on Lake Minnetonka. Plaintiffs are Sandra Benson Wingerd and Harold Wingerd. Defendants are Frederick Puzak, and 1350 Baldur, LLC, a Minnesota Limited Liability company whose sole shareholder, President, and Chief Manager, is Mr. Puzak. In this action,the parties have filed restraining orders against each other, along with claims for Declaratory Judgment Orders regarding easements on each others' properties, for tort damages caused by interference with each others' purported easements, and for other tort damages and trespass offenses. b. History of properties in question. Lots 20-33 of Block 1, Baldur Park, are the last 13 lots of a peninsula jutting into Lake Minnetonka. Baldur Park Road provides the only public access to the peninsula and the real estate in question. Baldur Park Road terminates at Lot 20. Arnold R. Boxrud and Maybelle S. Boxrud jointly owned Lots 20-33, in fee simple absolute, prior to May 25, 1948. The Boxruds resided in a house on Lot 30, and used a gravel driveway from Baldur Park Road that crossed Lot 20 to access the rest of the peninsula. The remainder of the Lots were undeveloped. On May 25, 1948, the Boxruds executed a contract for sale of Lot 20 and part of Lot 21 to John Ferrin and Marlen Ferrin. The relevant portions of that 1948 Deed are as follows: This Indenture, Made this 25th day of May, 1948, between Arnold R. Boxrud and Maybelle S. Boxrud... and John Ferrin and Marlen Ferrin... Witnesseth, That the [Boxruds]... do hereby Grant, Bargain, Sell, and Convey unto the [Ferrins], their assigns, the survivor of said parties, and the heirs and assigns of the survivor, Forever, all the tracts or parcels of land lying and being in the County of Hennepin and State of Minnesota, described as follows,to-wit: 2 Lot Twenty (20), Block One (1), in Baldur Park, subject to and reserving in the grantors herein,their assigns, the survivor of said parties, and the heirs and assigns of the survivor, an easement for driveway purposes over that portion of said lot described as follows: Connecting at the Southeasterly corner of said Lot 20, distant 45.0 feet; thence Northwesterly on the Southwesterly line of said Lot 20, distant 45.0 feet; thence Northeasterly to a point of the Northwesterly line of said Lot 20, distant 45.0 feet Northeasterly from the Southwesterly corner of said Lot 20; thence Northeasterly on the Northwesterly line of said Lot 20, distant 60.0 feet; thence Southwesterly to the place of beginning as now laid cut... and [a portion of Lot 21 with no reservation of an easement], To Have and to Hold the Same, Together with all the hereditament and appurtenances thereunto belonging or in anyways appertaining, to the [Ferrins], their assigns, the survivor of said parties, and the heirs and assigns of the survivor, Forever, the [Ferrins] taking as joint tenants and not as tenants in common. And the [Boxruds] for themselves,their heirs, executors and administrators do covenant with the [Ferrins], their assigns, the survivor of said parties, and the heirs and assigns of the survivor, that [the Boxruds] are well seized in fee of the lands and premises aforesaid and have good right to sell and convey the same in manner and form aforesaid, and that the same are free from all incumberances, And the above bargained and granted lands and premises, in the quite and peaceable possession of the [Ferrins], their assigns, the survivor of said parties, and the heirs and assigns of the survivor, against all persons lawfully claiming or to claim the whole or any part thereof, subject to incumberances, if any, hereinbefore mentioned, the [Boxruds] will Warrant and Defend. This Deed was recorded as a sale of warranty property in 1948 by the Hennepin County Clerk and Recorder as Document No. 251998. The Boxruds' land was further partitioned and has changed hands several times. In 1994, the owner of Lot 30 sought and was granted a Declaratory Judgment defining an easement over Lots 21-29, which were owned by a different party, for the benefit of Lot 30. That Judicial Order was recorded by the Hennepin County Clerk and Recorder as Document No. 258347, May 24, 1994,pursuant to Proceedings Subsequent. Titles of Lots 21- 33 were Ordered reformed to memorialize the easement. That litigation did not join the owners of Lot 20, and the Order did not refer to Lot 20 in any way. Later in 1994, Defendant Mr. Puzak personally purchased Lot 30. 3 Lot 20 and that part of Lot 21 defined in the 1948 Deed also changed hands several times. In 2002, Plaintiff Ms. Wingerd purchased Lot 20 and that part of Lot 21. Plaintiffs reside on Lot 20. The certificate of title to Plaintiffs' property is in warranty, and shows no record of the description of the land being reformed or altered from its description in the 1948 Deed. Defendant 1350 Baldur LLC,through Mr. Puzak, recently purchased the remaining Lots on the peninsula: that portion of Lot 21 not owned by Plaintiffs, Lots 22-29, and Lots 31-33, and Mr. Puzak still personally owns Lot 30. Defendants' Lots are each torrens, registered property. c. Parties claims and Motion for Summary Judgment. Plaintiffs seek a Declaratory Judgment denying any servitude in the title of their property, Lot 20, and a portion of Lot 21, Block 1, Baldur Park, Hennepin County, Minnesota. Defendants own Lots 22-33, and that portion of Lot 21 which is not owned by Plaintiffs. Defendants' counterclaim seeks a Declaratory Judgment affirming an easement across Plaintiffs' property. Defendants brought a Motion for Partial Summary Judgment on the matter of existence, validity, nature, and dimensions of that easement. This Order resolves only the matter of Defendants' asserted easement on Plaintiffs' property. II. Summary Judgment Standard A grant of summary judgment is proper when: [T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.03. The Court must determine whether any genuine issues of material fact exist when the facts are viewed in a light most favorable to the non-moving party. St. Louis Park Inv. Co. v. R.L. Johnson Inv. Co., 411 N.W.2d 288, 291 (Minn. App. 1987); Clark v. Peterson, 4 741 N.W.2d 136, 139 (Minn. App. 2007). A fact is material if its resolution will affect the outcome of a case. O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996). The burden is on the moving party to show the absence of an issue of material fact. Anderson v. State, Dept. of Natural Resources, 693 N.W.2d 181, 191 (Minn.2005). In opposing the motion, the nonmoving party cannot rely upon mere averments or denials set forth in its pleadings, but must present specific facts showing that there is a genuine issue for trial. Minn. R. Civ. P. 56.05. The Court must view all evidence in a light most favorable to the non-moving party and must resolve all factual inferences against the moving parties. Celotex Corp. v. Catreett, 577 U.S. 317 (1986); Gradjelick v. Hance, 646 N.W.2d 225, 231 (Minn. 2002); Grondahl v. Bulluck, 318 N.W.2d 240 (Minn. 1982). III. Analysis a. Summary of arguments Plaintiffs argue that the description of an easement in a deed that transferred the title of their property subject to that easement on May 25, 1948, did not create a valid easement. Plaintiffs contend secondly that if such an easement was validly created, it was not appurtenant to the grantors' land, and has expired. Plaintiffs finally argue that if an appurtenant easement were created, it has been altered or extinguished by a Court Order or other contract prior to their taking title. Defendants assert that the 1948 Deed created a valid appurtenant easement burdening Plaintiffs' property for the benefit of Defendants' property. Secondly, Defendants argue that no legally binding action has altered or extinguished that easement. b. Plaintiffs' claim that the 1948 Deed did not create a valid easement. 1. Easement creation. 5 An easement is a servitude creating"an interest in land in the possession of another which entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists."Minneapolis Athletic Club v. Cohler, 287 Minn. 254, 258, 177 N.W.2nd 786, 789 (Minn. 1970) (citing Rest. Prop. § 450 (1944)). In sale of real property, "[a] way `reserved'...is strictly an easement newly created." Winston v. Johnson, 42 Minn. 389, 402, 45 N.W. 958, 959 (Minn. 1890). An easement is created"if the owner of a property to be burdened...makes a conveyance intended to create a servitude." Rest. 3d. Prop., Servitudes § 2.1 (see also comment a. "...deeds have been used to create [easements] since at least the 13th century...");Northern Pac. Ry. Co. v. Duncan, 91 N.W. 271, 272 (Minn. 1902); Minneapolis Athletic, at 789; AMJUR Easements § 16. Therefore, "a certificate of title is conclusive evidence that there is an easement contained in the certificate."Nolan v. Stuebner, 429 N.W.2d 918, 922 (Minn. Ct. App. 1988). In the present case, Lot 20 was conveyed by the 1948 Deed, "subject to and reserving in the grantors... an easement for driveway purposes." The driveway was a way reserved in the grantor of Lot 20. The 1948 Deed gave the full description of the property, and acted as certificate of title. The certificate of title is conclusive evidence that the driveway easement was contained in the certificate. Therefore the 1948 Deed created an easement. 2. Easement construction. Plaintiffs contend that Defendants have failed to produce evidence of the circumstances surrounding the conveyance to show the intention of the parties to create an easement, and therefore a factual issue exists as to the intent of the parties and the validity of the easement. Any instrument creating an easement "should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding 6 creation of the servitude, and to carry out the purpose for which it was created." Rest. 3d. Prop., Servitudes § 4.1(1); see, e.g. Bergh and Mission Farms Inc. v. Great Lakes Transmission Co., 565 N.W.2d 23, 26 (Minn. 1997); Braaten v. Jarvi, 347 N.W. 2d 279, 282 (Minn. Ct. App. 1985). However, when the language in the instrument is "fully clear and unambiguous,"parole evidence cannot introduced to contradict the intent of the parties. Callen v. Hause, 91 Minn. 270, 272, 97 N.W. 973, 974 (Minn. 1904); citing Atkins v. Bordman, 2 Mete. 457, 37 Am. Dec. 100,; see also, Minneapolis Athletic, at 258. In this case, the 1948 Deed conveys Lot 20 "subject to and reserving in the grantors herein... an easement for driveway purposes."The easement is then laid out in specific directions and dimensions that connect Baldur Park Road to the part of Lot 21 retained by the grantors. The easement covers the driveway that already existed on the land. The easement is a reasonable size and shape, and serves the function of a driveway. The description is fully clear and unambiguous. In the final paragraph of the 1948 Deed, grantors promised to "Warrant and Defend" grantees' claim of title against any legal claim, "subject to incumberances... hereinbefore mentioned." The driveway easement is the only encumbrance before mentioned in the 1948 Deed. Here again, the 1948 Deed is clear and unambiguous as to the intention of the parties to record on the title of Lot 20 that it is subject to the driveway easement described. Taking the 1948 Deed as a whole, there is no ambiguity about the dimensions and purposes of the driveway easement, nor that the driveway easement was intended to be created by the document. By the clear and unambiguous language of the instrument, the intention of the parties to the conveyance was to newly create an easement across Lot 20. No question of fact remains as to the intention of the parties to the 1948 Deed. 7 3. Easement validity. Plaintiffs contend that the easement was not valid. Although the Court may have "conclusive evidence that there is an easement contained in the certificate, it does not preclude judicial inquiry into the validity of the easement."Nolan, at 922. When an easement is created in a deed for warranty property, "[t]he rule is that a grantee of land takes title subject to duly recorded easements which have been granted by the predecessors in title." Werner v. Sample, 259 Minn. 273, 275; 107 N.W.2d 43, 44 (Minn. 1961). Warranty property is abstract, unregistered property. The rule requiring easements to be duly recorded is to ensure notice of the document creating the easement, and guarantee a person who purchases land has "knowledge" or "actual, constructive or implied notice that it is burdened with an easement" and therefore"takes the estate subject to the easement."Nolan, at 922, citing Levine v. Twin City Red Barn No. 2. Inc., 269 Minn. 260, 264, 207 N.W.2d 739, 742 (Minn. 1973). Plaintiffs' land is warranty property. The 1948 Deed was recorded by the Hennepin County Clerk and Recorder, on May 25, 1948, as Document No. 2513998. The 1948 Deed was therefore duly recorded. Because the Deed creating the easement was duly recorded, the 1948 Deed satisfied the notice requirement, creating a legally valid easement across Lot 20. Plaintiffs contend that for the easement to be validly created on warranty property, "subject to" language could not create an easement,but only presupposed an existing easement. Plaintiffs rely on Werner, where the Minnesota Supreme Court held that a warranty deed which conveyed property "subject to easement for driveway and sewer" was insufficient to create a valid easement, stating, "Such language, of course, does not create an easement; it presupposes an existing easement." Werner, at 275. Plaintiffs' reliance on Werner is misplaced. 8 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 Lidgerding v. Zignego, 80 N.W. 360, 361 (Minn. 1899). An easement appurtenant to land is a servitude upon one property for the benefit of another property, it is perpetual, and it is irrevocable regardless of alienation of land. Id. An easement in gross is a license to use the property of another that vests personally in an individual and is revocable by the grantor. Lidgerding, at 361. A right of way over land grated in gross is "personal... and hence not assignable" under Minnesota law. Id., see also Anderson, at *1. 1. The plain language of the 1948 Deed. The Supreme Court in Winston held, "A way `reserved,' as the word is used in a popular sense, is strictly an easement newly created, by a [second] grant from the grantee in the deed of the estate to the grantor." Winston, at 402. For an easement to be "in the deed of the estate of the grantor," is to say that the easement is appurtenant to the grantor's land. When a reserved easement is "newly created, by a grant from the grantee in the deed of the estate of the grantor," it is created by the grantee's deed, and arises in the grantor's estate as an operation of law. No memorial is needed in the deed of the estate of the grantor, as the grant of easement is memorialized in the grantee's deed. The 1948 Deed reserved, in the grantors, a driveway easement. By "reserving in the grantors" an easement, the 1948 Deed created a grant in the deed of the estate of the grantors. The easement is memorialized by the 1948 Deed itself. By operation of law,the easement created was appurtenant to the grantors' estate. The estate of the grantors at the time of the 1948 Deed was Lots 22-33, and that portion of Lot 21 not deeded to the grantee. A valid easement need not contain the words "heirs and assigns" to create an appurtenant easement. Lidgerding, at 361. However, when a valid easement includes the words "heirs and assigns" in the grant, an appurtenant easement is created as a matter of law. Id. The reservation 10 language in the 1948 Deed abundantly satisfies this, reserving an easement"in the grantors herein, their assigns, the survivor of said parties, and the heirs and assigns of the survivor." This is the same language that the 1948 Deed uses to transfer ownership of the property to the grantees in fee simple. The valid easement created by the 1948 Deed was `reserved' in the grantors and their `heirs and assigns.' By the legally binding interpretation of the plain language of the 1948 Deed, the easement created was appurtenant to Lots 22-33, and that portion of Lot 21 not deeded to the grantee. Therefore the 1948 Deed created an appurtenant easement, burdening Lot 20, for the benefit of Lots 21-33, as a matter of law. 2. The circumstances surrounding the 1948 Deed. The Minnesota Supreme Court has long held that an easement"is never construed to be in gross-that is, personal-when it can fairly be construed to be appurtenant to the land." Callen, at 974. The binding rule is "[i]n the partition of land,with a permission for a way over one tract for the use of the owner of another, the right would be taken and presumed to be appurtenant."Id. The 1948 Deed was granted in the partition of land. The grantors otherwise land-locked the remainder of their property on the peninsula. A valid driveway easement was reserved in the Deed. The purpose of the easement is stated explicitly in the Deed: "for driveway purposes." This easement can be fairly construed to be appurtenant to the grantors' estate. The easement provides the only way over Lot 20 for the grantors who owned Lots 21-33. No material issue of fact exists, and the easement created in the 1948 Deed is an appurtenant easement as a matter of law. d. Plaintiffs' request for time for continued discovery. 1. Plaintiffs' notice of the easement. 11 Plaintiffs contend that even if the 1948 Deed created a valid appurtenant easement, more time is needed for discovery to investigate whether the easement was still valid at the time they took title. The Supreme Court held that "[i]t has long been recognized in Minnesota that a person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement." Werner, at 275; Levine, at 264; cited in Anderson, at *5. Such easements must be duly recorded in order to satisfy notice requirements for warranty property. Werner, at 275. As discussed above, the 1948 Deed was duly recorded. The property has not been subsequently reformed by any duly recorded contract. Plaintiffs had actual, constructive, or implied notice that Lot 20 was burdened with an easement when they purchased the land, through the duly recorded 1948 Deed. No issue of fact exists as to whether Plaintiffs had proper notice of the easement. Plaintiffs purchased the estate with proper notice of its burden, and took the estate subject to the easement. Further discovery will not change these facts. 2. Plaintiffs' search for judicial reformation. Plaintiffs contend that the easement created by the 1948 Deed was litigated and substantially reformed by Judicial Order, recorded as Document No. 258347, May 24, 1994, pursuant to Proceedings Subsequent. A court may reform an easement"upon any reasonable ground,"but only after giving notice to all interested parties, "as determined by the examiner of titles." Minn.Stat. § 508.71. The examiner of titles would have to have determined that predecessors in title to the Plaintiffs' land would be an interested party if their title was subjected to litigation and possible reformation. The title of record shows no failed or successful attempt to give such required notice. The courts will not order anything affecting title without first giving proper notice. Id. 12 • The 1994 Order submitted by Plaintiffs makes no mention of Lot 20 or that section of Lot 21 now owned by Plaintiffs. That litigation dealt only with easements across the part of Lot 21 not owned by Plaintiffs, and Lots 22-33. The Order did not attempt to alter the title of Plaintiffs' land. No issue of fact exists as to whether any title holders to the Plaintiffs' property were given notice of that or any other litigation purporting to alter title to Lot 20. The record is complete on these matters. Further investigation cannot discover that Plaintiffs lacked notice of the servitude upon taking title to the property. Further investigation cannot discover a Court Order validly reforming their title. Plaintiffs took title subject to the duly recorded easement, and continued discovery would be fruitless. IV. Conclusion. No issue of fact exists as to the current validity or appurtenance of the driveway easement created in the 1948 Deed. Therefore summary judgment is appropriate on that issue. No issue of fact exists concerning the title of record of Lot 20 or Plaintiffs' notice of the servitude encumbering the land when they took title. Therefore summary judgment on that issue is also appropriate. As a matter of law, Plaintiffs' land, Lot 20, is encumbered by a valid appurtenant easement for the benefit of Lots 21-33, the dimensions of such easement are as described in the 1948 Deed. Defendants 1350 Baldur, LLC and Frederick Puzak's Motion for Summary Judgment on Plaintiffs Sandra Benson Wingerd and Harold Wingerd's claim for Declaratory Judgment and on Defendants' claim for Declaratory Judgment on the matter of the appurtenant driveway easement as described in the 1948 Deed is hereby GRANTED. C.L.N. 13 \\' \\ \� s. 20 \/ \ �� o 1 2 p'C iii • -..... ` _.�,� • Sp\ \� �a ai1`L ` 6y \ \0 1 1 yp s"G \ ` / Q y+ip.' '`,•%- / II . / l':i GgRq niyG / // 1 'C / 4-/ Z t Sym l9 / , a�Q 1\ , •,:.�z / / / ,s, .. '; . .., t / / 1, / / / 18 �t� / / /\'‘ / / ;;;,\. . / o� / 1TONKA / ‘'',.. , \2.. ' . / \ 4 `� =EN,of BLA�KTdP ADVANCE SURVEYING & ENGINEERING CO. 5300 S.Hwy.No.101 Minnetonka,MN 55345 Phone(952)474 7964 Fax(952)225 0502 W W W.ADVSUR.COM SURVEY FOR: FRED PUZAK SURVEYED:July,2011 DRAFTED:August 1,2011 ADDRESS: 1376 Baldur Park Rd,Orono,MN 55391 SCOPE OF WORK&LIMITATIONS: I. Showing the length and direction of the boundary lines shown below. The scope of our services does not include determining what you own,which is a legal matter. Please check the legal description with your records or consult with competent legal counsel,if necessary.to make sure that it is correct and that any matters of record,such as easements. that you wish shown on the survey,have been shown. 2. Showing the location of existing dock and canopy. STANDARD SYMBOLS&CONVENTIONS: "r"Denotes 1/2"ID pipe with plastic plug bearing State License Number 9235,set,unless otherwise noted. CERTIFICATION: 4 I hereby certify that this survey was prepared by me or under my direct supervision and that I am a Professional Engineer and a Professional Surveyor under the Laws of the State of Minnesota. 11 C. Jam Parker P.E.&P.S.S.No.No.9235 / // ;,1.14* - `- - 3.S"'F.i4cmot�+4kAwte14T- n DOCK ,SKETCH '` ` I / 5.5t�, � ' ' '� �. / ,. /. / / r i FOUND CAPPED ' ( • p .23 �'a. '' 1/2"/RON`\ ' �q� \Z" a t,+`� // Nk �so�.\ i z A i / 1) `,‘ 11 F 1 r 1 7g l// / 0 ,) L' / !/ .,( / 1 , , , Ji 1 , . I FOUND 1/2" , i L' " 1, DAPC. NO. 110111 Orono .: '2 Sanitary Utiltiy z ., r • • Manhole w/ Label ; . •Manhole Accur. - r I ' m . a 1 + . 'a . 1 AP •Manhole • r mg, ilg — Sanitary Pipe . , —City sewer pipe• r, • �T" X i, + —City Force Main r 1 + f a • • a _ —Metro gravity piF ' ,� • . —Met Council For. _ ` ,s;` .• r° a r t. _ City sewer servii �j -, . -*, , . r' - . City sewer Servii r. r" tir l '" s , € • a { —— City gravity pipe, r�. 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