## Facts

- George and Lucille Fagan owned Lot 20 in the H.R. White First Subdivision of Gull Lake Shores (the servient estate) and also owned nearby property in Cass County, Minnesota (the dominant land).
- In 1955, the Fagans conveyed a portion of their property known as the Ruth Lake parcel to Anna Marie and Roy Becker and, in the same deed, granted an easement appurtenant “for the purpose of ingress to and egress from Gull Lake over the easterly fifteen (15) feet of Lot Twenty (20).”
- The easement grant stated that it would “perpetually benefit” the Fagans’ Cass County property and that present and future owners of any part of that property were entitled to share equally in the easement.
- The Ruth Lake parcel later transferred from the Beckers to Cline Tincher (1957), then from Tincher to Kenneth and Ruth Swisher (1961), and finally from the Swishers’ heirs to Mary and Perry John (“Jack”) Hickerson (1990).
- In 1958, the Fagans conveyed Lot 20 to Edgar and Virginia E. Bender. The deed to the Benders did not reference the recorded easement (and a later corrective deed also did not mention it).
- Between 1958 and 1962, the Benders erected a house and garage and added other permanent features on Lot 20, including a poured concrete patio, a stone barbecue, tree planters, a raised concrete block retaining wall at the top edge of the beach, and extensive landscaping with mature trees and shrubs.
- These structures and improvements materially blocked the 15-foot easement strip; passage to the lake through the described corridor became arduous and impeded.
- At trial, Bender and several neighbors testified they had never seen anyone use the easement since the Benders acquired Lot 20 (beginning in 1959).
- Other testimony suggested occasional use. Dr. Marion Swisher testified by deposition that he and his father walked down to Gull Lake in 1967 within close proximity to the Benders’ house. Virginia Bender recalled seeing people walking from the Swisher property during the winter of 1967 but asserted they traveled over adjacent unplatted government land rather than within the easement strip.
- After acquiring the Ruth Lake parcel in 1990, the Hickersons asserted the Gull Lake access easement and sued the Benders seeking a declaration that the easement remained enforceable and an order stopping interference with their use.

## Issues

1. Whether the evidence supported the trial court’s finding that the Gull Lake access easement had been extinguished by abandonment.
2. Whether the evidence supported the trial court’s finding that the easement was extinguished because the Benders adversely possessed the easement area for the statutory period.

## Decision

- The Minnesota Court of Appeals affirmed the judgment for the Benders.
- The court held the record supported the finding of abandonment: long nonuse, combined with the dominant owners’ failure to object to substantial, visible, permanent obstructions that blocked passage, permitted an inference of intent to relinquish the easement.
- The court also held the record supported extinguishment by adverse possession: the Benders’ house, garage, and related permanent improvements openly and continuously occupied and obstructed the easement strip for far more than 15 years in a manner inconsistent with continued easement rights.
- Conflicting testimony about sporadic use did not make the trial court’s findings clearly erroneous; credibility choices and factual inferences were for the trial court.

## Legal Principles

- Nonuse alone does not establish abandonment of an easement; abandonment requires intent to relinquish the easement, which may be inferred from nonuse together with acts and circumstances inconsistent with continued use (such as acquiescence in permanent obstructions).
- Permanent, visible structures that materially block an access easement, coupled with long inaction by the easement holder, can support a finding that the easement was abandoned.
- A servient owner may extinguish an easement through adverse possession by establishing actual, open, notorious, exclusive, hostile, and continuous possession of the easement area for the statutory period (15 years in Minnesota) in a way incompatible with the easement.
- When a trial court determines abandonment or adverse possession based on disputed evidence, appellate review is deferential; findings of fact are upheld unless clearly erroneous.

## Conclusion

The court affirmed that the recorded Gull Lake ingress-egress easement appurtenant to the Ruth Lake parcel was no longer enforceable because decades of nonuse and acquiescence in the Benders’ permanent obstructions supported abandonment, and the Benders’ long-term, open, and exclusive occupation of the easement strip independently met Minnesota’s requirements for adverse possession.


Hickerson v. Bender, 500 N.W.2d 169 (1993)