Phillips Industries, Inc. v. Firkins ( 1992 )

SWANSTROM, J.,

concurring in part and dissenting in part.

I concur fully in parts one and two of the opinion. As to part three, however, I respectfully disagree that the record justifies all of the restrictions placed on Phillips for the use of the easement.

Phillips’ present use of the easement for truck access to its storage and loading facilities is infrequent, but nevertheless disruptive of the Firkines’ use of the same property. The district judge reasonably concluded that both parties have responsibilities in easing the transition between the two conflicting uses. The judge required Phillips to give twenty-four hours’ notice of its intended use. I question the need for such an inflexible requirement, as it may be totally unnecessary at times and quite onerous in some circumstances.

The court also ordered Phillips to make every effort not to cross the easement with loaded trucks. I believe this directive is contrary to the obvious purpose of the easement, which is to allow Phillips to receive loaded grain trucks at its storage facility or to have grain trucked away from storage. The restriction is not justified. If loaded trucks damage the easement, the law fixes responsibility and provides a remedy.