STATE OF MINNESOTA

IN SUPREME COURT

C0-98-1345

S Y L L A B U S

The elements of proof necessary to establish a prescriptive easement are the same as those required to establish adverse possession and require a showing that the property was used in an actual, open, continuous, exclusive, and hostile manner for the requisite statutory period of time.

The elements of proof required for a prescriptive easement must be established by clear and convincing evidence consonant with the type of use asserted.

District court did not commit clear error when evidence in the record supported the court's finding of continuous use for the requisite statutory period of time to establish a prescriptive easement.

Reversed.

Considered and decided by the court en banc without oral argument.

O P I N I O N

ANDERSON, Paul H., Justice.

The parties in this case are embroiled in a dispute over the status of a driveway located on parts of two adjoining residential lots in North Minneapolis. Lynn and Donna Rogers assert that they have demonstrated the continuous use of a driveway over part of John and Lisa Moore's property for the 15-year period required to establish a prescriptive easement. The Moores claim that the Rogers have failed to prove the existence of the easement. The district court found that the Rogers established an easement, but the Minnesota Court of Appeals reversed on the grounds that the record did not support a finding of continuous use. We reverse the court of appeals on the grounds that the district court's finding of continuous use was not clearly erroneous.

The facts relevant to this case span nearly 30 years, beginning on November 21, 1969, when appellant Lynn Rogers and his former wife, Susanne Rogers, purchased a parcel of real estate (hereinafter referred to as the Rogers' property) legally described as:

South one-half of Lot 9, Block 9, Bottineau's Second Addition to the Town of St. Anthony, County of Hennepin, State of Minnesota.

This lot is commonly known as: 1907-1909 Third Street Northeast, Minneapolis, MN. At the time of purchase, the Rogers' property consisted of an improved residential lot with a duplex and a detached garage. From 1969 until 1976, Lynn and Susanne Rogers resided in the upper level of the duplex together and leased the lower level to various tenants. In 1976, Lynn Rogers and Susanne Rogers divorced and Lynn Rogers retained possession of the duplex. In 1979, Lynn Rogers married appellant Donna Rogers. From 1979 until 1983, Lynn and Donna Rogers (the Rogers) maintained two residences: the upper level of the Minneapolis duplex and a separate residence in Ely, Minnesota. Between 1979 and 1983, they continued to lease the lower level of the Minneapolis duplex.

Throughout this entire time, from the date of purchase until 1983, the Rogers and their tenants used a driveway that ran from a curb cut on Third Street east along the north property line of their property. This driveway was the only access to the garage and a gravel parking area behind the Rogers' duplex. In 1978 during routine sidewalk maintenance, the city of Minneapolis widened the Third Street curb cut to more closely correspond to the width of the driveway. At that time, the driveway was approximately 10 feet wide. Unknown to anyone during this time, the driveway encroached on the property immediately to the north of the Rogers' property.

In December 1983, the Rogers sold their property by contract for deed to D&S Properties, a Minnesota Partnership (D&S). D&S purchased the Rogers' property as an investment, intending to lease both units, and from 1983 until 1990 or early 1991, D&S leased both units to various residential tenants. At some point between 1983 and 1994, the detached garage was demolished and removed. D&S neglected to maintain the property and, by late 1990 or early 1991, had allowed the property to become so run down that there were no tenants remaining in the duplex. D&S stopped making payments on the contract for deed in late 1990 or early 1991. The Rogers cancelled the contract for nonpayment in 1991. It is uncontested that during the life of the D&S contract for deed, Lynn Rogers made approximately 12 visits to the property to check on its condition in case he