North Dakota Supreme Court hears arguments in property easement dispute over 1993 plat

The North Dakota Supreme Court heard oral arguments Wednesday in Tam v. Gatsky, a dispute about whether access easements shown on a May 10, 1993, subdivision plat became enforceable when the owner later conveyed the middle lot.

The case turns on whether the recording and content of a three‑lot plat and later conveyances created express easements or implied easements (by prior use, necessity, or quasi‑easement) that burden the parcels the original owner retained. The court heard argument from Rudra Tam, who appeared pro se and says he holds the middle lot through a trust, and from Michael Malloy, counsel for the property owners opposing recognition of the easements. The justices questioned both sides about the record, the timing of recording versus delivery, and the legal standards for implied easements.

Why it matters: If the court finds the plat and related documents created an easement, owners of the adjacent lots could be required to permit access and possibly pay for improvements; if it does not, those access claims may fail. The issue implicates how land records, plats and later conveyances interact under North Dakota law when one owner initially holds all affected parcels.

Arguments and record points

Rudra Tam, appearing pro se, told the court the 1993 submission was an integrated package that subdivided 7.6 acres, transferred the middle lot to Scott Johnson, and showed access easements on the plat. Tam argued the owner’s intent—reflected in the plat and accompanying documents—created the easements on May 10, 1993, and that those interests persisted against later conveyances. Tam said the plat ‘‘show[] exactly where the easement is, how long it is’’ and that the document met the statute’s requirement that transfers be ‘‘by an instrument in writing.’’

Michael Malloy, counsel for the appellees, urged the court to affirm the district court’s ruling denying summary judgment for Tam and granting judgment on the pleadings for the defendants. Malloy argued there is no North Dakota authority holding that merely listing an easement on a plat creates an enforceable access easement when the owner of all parcels retained the dominant and servient tracts at the time of recording. He argued that implied easements require proof of unity of title plus an apparent, continuous use and necessity for enjoyment of the dominant parcel, and that the record lacks evidence of continuous, open use or necessity. Malloy also pointed to a recording issue: county recorder entries show the plat and deed recording times identical, and the record contains no evidence of the deed’s delivery timing.

Justices’ questions focused on several discrete issues: whether the alleged easement locations remain ‘‘apparent and continuous’’ on the ground today (Malloy noted photographs and steep slope conditions shown by Ms. Gatsky that suggest no developed roadway), whether an owner who records a plat while owning all affected parcels can later give rise to a present easement once parcels are conveyed, and whether any gap between plat recording and deed delivery affects the creation of rights. The court discussed North Dakota caselaw on implied easements (the parties cited Lutz v. Crowder) and on the effect of ‘‘subject to’’ language in deeds (the appellees cited a Crossroads/Land Construction Company decision and Wagner-related authority).

Record limitations identified at argument

- Timing of delivery vs. recording: Counsel and justices agreed the record shows identical recording timestamps but contains no evidence when the deed was actually delivered; the parties told the court the delivery date is not established in the record. - Evidence of use: Malloy told the court the record lacks proof of open, continuous use of the alleged access routes; photographs by Ms. Gatsky were said to show vegetation and slope rather than a developed roadway. - Express grant absence: Malloy emphasized there is no freestanding recorded easement document and no express easement language in the warranty deed from the original owner to Scott Johnson.

Other procedural and factual points

Tam said the middle parcel is owned in trust and described it as held by the Rudra Tam Revocable Trust; counsel and one justice discussed whether a trustee may appear pro se to represent the trust as a separate legal entity, with at least one justice noting that representation of a separate entity generally requires counsel. Malloy also referred to affidavits in the district court record and objected at trial to hearsay statements in an affidavit he says Tam prepared and Johnson signed.

Outcome and next steps

After argument the court announced it would take the case under advisement. No decision was issued from the bench.

The court’s written opinion will resolve whether the recorded plat and related documents created enforceable easements under North Dakota law and whether the district court’s judgment should be affirmed or reversed. The court did not set a published timetable at argument.

(Quotes and attributions reflect statements made during the oral argument as recorded in the transcript.)