## Facts

- A common owner formerly held two adjacent Minneapolis parcels in fee simple; both later became Torrens-registered.
- In 1950, the owner conveyed one parcel while reserving an appurtenant easement over the other for ingress, egress, and signage.
- The current owners’ Torrens certificates of title for both parcels recited the easement.
- For decades there was no evidence of easement use; the burdened area functioned as a parking lot.
- In 1995, Hersh Properties, owner of the benefited parcel, attempted to exercise the signage component by placing a liquor advertisement sign on the adjacent parcel owned by McDonald’s (operated by franchisee Choate).
- McDonald’s and Choate refused, asserting the Minnesota Marketable Title Act (MTA), Minn. Stat. § 541.023, extinguished the easement because Hersh had not filed the MTA’s sworn preservation notice.

## Issues

1. Whether the Minnesota Marketable Title Act applies to Torrens-registered property.
2. For Torrens property, what constitutes the MTA “source of title” from which the 40-year period is measured.
3. Whether McDonald’s could invoke the MTA to extinguish the easement given the length of time its Torrens source of title had been of record.

## Decision

- The Minnesota Supreme Court affirmed that the MTA applies to Torrens property.
- The court held that, for Torrens land, the MTA “source of title” is the certificate of title issued to the owner upon acquisition of fee simple title.
- Because McDonald’s certificate of title had not been of record for 40 years, McDonald’s could not invoke the MTA to extinguish Hersh’s easement.
- The court affirmed in part, reversed in part, and remanded for further proceedings.

## Legal Principles

- The Minnesota Marketable Title Act applies to interests affecting Torrens-registered property.
- For Torrens property, the relevant MTA “source of title” is the current owner’s certificate of title issued upon acquiring fee simple title, not earlier instruments or predecessors’ certificates.
- A party seeking to use the MTA to terminate an adverse interest must show its own source of title has been of record for at least 40 years; without that showing, the MTA does not extinguish the interest.

## Conclusion

The court harmonized the MTA with the Torrens system by measuring the MTA’s 40-year requirement from the owner’s own certificate of title, and it rejected McDonald’s attempt to extinguish an easement where that temporal prerequisite was not met.


Hersh Props., LLC v. McDonald’s Corp., 588 N.W.2d 728 (Minn. 1999)