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RALIENHORST CARLSON & KNAAK ATTORNEYS AT LAW ' ROSEDALE CORPORATE PLAZA 2665 LONG LAKE ROAD ROSEVILLE, MINNESOTA 55113 SARAH E. ARENDT KATHLEEN K. RAUENHORST ,. FREDERIC W. KNAAK _ MELISSA A MILLER - - - STEVEN P. CARLSON March 1, 1990 Mary Kueffner Acting Lake Elmo City Administrator 3800 Laverne Avenue Lake Elmo, Minnesota 55042 Re: DeMontreville Easement Dear Mary: V/,3/?& AIAR . 2 1990 TELEPHONE: (612) 631.1060 FAX: (612)631.1531 I reviewed your facsimile transmition of February 28, 1990 in which you address the issue of change in the conditions of the walkway easement through Lot 14, Block 3 DeMontreville Highlands 4th Addition. By virtue of the original quit claim deed, this is an express grant of easement in favor of the City. As a rule of law, when an easement is by express grant, its extent depends entirely on the construction of the terms of the grant. Only when ambiguities exist, may the circumstances surrounding the grant be considered by the courts. As the language of the grant becomes less precise, the circumstances of the grant grow in importance as an interpretive aid. The law, however, requires that a grant of an easement is to be strictly construed. It is apparent that there are no ambiguities in the grant of this particular easement. The easement is specific as to its extent and its purpose. The easement in question is also specific as to the type or nature of improvements that are allowed on the easement. Generally when an easement has once become fixed, there can be no material alteration except by an agreement by the owners of the dominant and the servient tenets. In this case the servient tenet is the current landowner of Lot 14, Block 3 DeMontreville Highlands 4th Addition and the dominant owner is the City of Lake Elmo. Therefore any "material alteration" of the easement must be bet— ween the agreement of these two parties. However, the question then arises as to whether or not the paving of a presumed gravel walkway path is a material alteration. The 1956 case of Thomas v. Mrkonich 247 MN 481, 78 N.W.2nd 386 (1956) held that the right to make an alteration in easement is dependent on the extent of the proposed change. If a change is not so substantial as to result in the creation or substitution of a new and different servitude, it will not be held objectionable. It is my opinion that to pave what is intended as a gravel — topped walkway path would not be a substantial change which would create a new or different servitude.