Tamm v. Gatzke, et al.

Citations

• 2025 ND 141

Syllabus

An easement implied from pre-existing use requires unity of title of the dominant and servient tenement and a subsequent severance; apparent, permanent, and continuous use; and, the easement must be important or necessary for the enjoyment of the dominant tenement. An easement by necessity arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of strangers. A motion for judgment on the pleadings should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. A motion for summary judgment is not an opportunity to conduct a mini-trial, and summary judgment is inappropriate if the court must draw inferences and make findings on disputed facts to support the judgment. A party seeking an implied easement has the burden of proving the existence of the easement by clear and convincing evidence.