Daily Development for Wednesday, September 13, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

EASEMENTS; CREATION; DEDICATION: A dedication in a subdivision of a waterfront area "for the use of" the subdivision owners is the creation of an easement right in coownership, and not a fee interest, and consequently such right can be abandoned.

Denman v. Gans, 607 N.W.2d 788 (Minn. Ct. App. 2000) discussed further in the DD for 9/12/00.

Subdividers had dedicated the waterfront to all of the lot owners, waterfront owners and inland owners. Waterfront owners had made the largest use of the property over time, and argued that the inland owners had abandoned their interests in the waterfront.

The trial court held that the inland subdivision owners could not abandon the waterfront property, because a fee interest cannot, as a matter of law, be abandoned.

The Court of Appeals found the trial court's reasoning to be erroneous, holding that the waterfront property was dedicated to convey use, not ownership, and therefore could be abandoned, but upheld the trial court by finding that, as a matter of law, the waterfront owners failed to establish abandonment by the landlocked owners.

The Court of Appeals conclusion might appear to be unremarkable in light of the language of the dedication, but it did have to contend with the language of a Minnesota statute providing: "[E]very dedication to the public or any person or corporation noted thereon shall operate to convey the fee of all land so donated . . . " Prior Minnesota cases apparently have held that the legislature did not mean what it apparently said, and that this statute was intended only to provide a substitute means for creating an easement (other than by deed) and was not intended to make dedications the creation of outright ownership.

Comment: Although it is quite common to refer to the "outright ownership" of a given property as the "fee," in fact the real derivation of the term "fee" relates to the inheritability of the interest and not the possessory rights conveyed. Interestingly enough, we don't have a term that lawyers commonly use to describe "the main bundle of sticks," or the "core ownership." We somewhat clumsily use the term "fee ownership" to differentiate from "easement ownership," but the Minnesota courts are correct in pointing out that this isn't a true distinction, because easements are technically infinitely inheritable, unless abandoned, of course. The "core ownership" cannot be abandoned.

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