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;7 r , . LAW OFFICES OF PETERSON, BELL, CONVERSE & JENSEN, P.A. Erwin A, Peterson Robert C. Bell Willard L. Converse Roger A. Jensen Kurt F. Walther James C. Erickson* David S. Anderson Thomas D. McCormick*t Carol A. Baldwin Scott B. Crossman Caroline Bell Beckman Cindy L. Davis Mitchell W. Converse 310 Rosedale Towers 1700 West Highway 36 Roseville, Minnesota 55113-4015 Telephone (612) 631-8489 Facsimile (612) 631-2475 MINNEAPOLIS OFFICE 3000 Metropolitan Centre 333 South Seventh Street Minneapolis, MN 55402-2441 August 8, 1995 REPLY TO ROSEVILLE Mr. Michael Falk City Planner 2660 Civic Center Drive Roseville, MN 55113 Dear Mike: You have asked me to research whether Mrs. Cedarholm may have an easement across Dan Gren's property for her sewer service. There are two possible ways that such an easement may exist. First, Mrs. Cedarhome may have an easement by estoppel. When a grantor conveys part. of his land to a grgntee.wi~h kpowledge.of the grantee's intended u~e of that land, and where.th~use'of that.laQd necessarily involves ~ome curtailment of the giant or's use of-his retained land an. easement by' estoppel arises in favor of the grantee and against the grantor. Thus, if Mr. Gren's predecessor in tit Ie sold Mrs. Cedarholm her property knowing that her sewer service connection ran under his land, and that she would necessar- ily have to use that sewer connection, an easement by estoppel may be present. I do not have sufficient knowledge of the history of these parcels to determine if such an easement is present, but Mrs. Cedarholm may have sufficient facts to prove such an easement, al though she would have to prove her right to this easement clearly. The second form of easement which may be present is an easement by prescription. To establish an easement by prescriptioh the party must prove use for the prescriptive period of 15 years and must prove that the use was hostile, actual, open, continuous, and exclusive. Here, it would appear that Mrs. Cedarholm's use of the sewer connection was actual, continuous and exclusive. The question of whether her use was open is not as clear cut. The weight of authority with regard to underground uses indicates that her use will be deemed open if a careful inspection by a person ordinarily conversant with the subject would have disclosed the use. I spoke briefly with Mr. Gren and he indicated that theie was nothing which would have. ,indicated to him that. the. sewer pipe running through h~syard also seiviced Mrs. Cedarhqlm'i property. That is not controlling however, as the question is' whether a *Also Admitted in Wisconsin tcivil Trial Specialist. Certified by the Civil Litigation Section of the Minnesota State Bar Association. M~8