Tamm v. Gatzke: Re-drawing the Lines – North Dakota Reins in Rule 12(c) and Re-affirms Fact-Intensive Nature of Express and Implied Easement Claims

Introduction

Tamm v. Gatzke, 2025 ND 141, is the North Dakota Supreme Court’s latest foray into the thorny world of private easements and procedural gate-keeping. The dispute arose over three contiguous tracts of land northwest of Bismarck (Tracts 1-B, 2-B, and 3-B) originally owned by Fred Roberts. When Roberts recorded a subdivision plat and contemporaneously conveyed Tract 2-B to Scott Johnson in 1993, the plat depicted “Access Easement” areas over Tracts 1-B and 3-B. Scott Johnson ultimately sold Tract 2-B to Rudra Tamm’s revocable trust in 2010. Tamm (appearing pro se as trustee) sought a declaratory judgment that the two easements exist and may be improved for vehicular access. Defendants Diane Gatzke (Tract 1-B) and Herman Eggers (Tract 3-B) denied any easement burdening their land, successfully obtaining a judgment on the pleadings, after which the district court also denied Tamm’s pending summary-judgment motion.

On appeal, the Supreme Court (Justice McEvers writing for a unanimous court) affirmed the denial of summary judgment, reversed the judgment on the pleadings, and remanded. Although the merits of the easement claim remain unresolved, the opinion lays down two important clarifications:

Rule 12(c) dismissal is inappropriate when factual questions—such as delivery of a deed, timing of severance, and historical land use—bear on express or implied easement claims.
The Court flags but does not decide whether a non-attorney trustee may represent a trust in North Dakota courts, signalling future litigation on unauthorized practice of law by pro se trustees.

Summary of the Judgment

Judgment on the Pleadings (reversed): The district court concluded that because Roberts owned all three tracts at the moment of plat recording, no dominant–servient relationship existed and therefore no easement could arise. The Supreme Court held that the pleadings did not “disclose with certainty the impossibility” of Tamm proving an easement. Questions of deed delivery and potential implied easements required fact-finding, making Rule 12(c) dismissal premature.
Summary Judgment (affirmed denial): Tamm failed to establish, as a matter of law, the existence of an express easement by plat or an easement implied from pre-existing use or necessity. Material factual disputes—particularly concerning alternative access, historical use, and Roberts’ intent—preclude summary judgment in his favor.
Representation Issue (reserved): Whether a non-attorney trustee may appear for a trust remains undecided. The Court references out-of-state cases (Bluel, Schaake) and invites the parties or district court to develop a record on remand.

Analysis

1. Precedents Cited and Their Influence

Wetzel v. Schlenvogt, 2005 ND 190 – Bars non-lawyer representation of a corporation. Used as analogical baseline for the trustee-representation debate.
Bluel v. Nigg, 528 P.3d 461 (Alaska 2023) & Schaake v. City of Lawrence, 491 P.3d 1265 (Kan. Ct. App. 2021) – Out-of-state authority that non-lawyer trustees cannot represent trusts; cited to frame the unresolved issue.
Griffeth v. Eid, 1998 ND 38 – Foundational North Dakota case defining express, implied-from-pre-existing-use, and necessity easements; the Court borrows its analytical framework and quotations.
Lutz v. Krauter, 553 N.W.2d 749 (N.D. 1996) – Clarifies quasi-easements and implied easements; employed to show possible survival of Tamm’s claims despite plat ambiguity.
Krebsbach v. Trinity Hosps., 2020 ND 24 – Recites the Rule 12(b)(6)/12(c) standard; quoted extensively to guide dismissal analysis.
Rice v. Neether, 2016 ND 247 & CUNA Mortg. v. Aafedt, 459 N.W.2d 801 (N.D. 1990) – Explain actual vs. constructive delivery; pivotal to determining whether severance and easement creation were simultaneous.
Krenz v. XTO Energy, 2017 ND 19 – States that ambiguity in a grant allows extrinsic evidence, undermining summary judgment.
Hamilton v. Woll, 2012 ND 238 – Warns courts not to conduct “mini-trials” on summary judgment; used to shore up the denial of Tamm’s Rule 56 motion.

2. Legal Reasoning

a. Rule 12(c) Threshold
The Court reiterates that judgment on the pleadings is warranted only when the complaint, taken as true and viewed favorably to the plaintiff, reveals an insuperable bar to relief. Here, even if Roberts owned all tracts at the instant of plat recording, Tamm could still pursue:

an express easement theory (if deed delivery preceded or was simultaneous with plat recordation);
an easement implied from prior use (quasi-easement principle); or
an easement by necessity.

Because these avenues hinge on facts—timing of deed delivery, historical roadway use, alternative access—the district court improperly resolved fact questions under Rule 12(c).

b. Denial of Summary Judgment
The Court applies familiar Rule 56 doctrine: the movant must show no genuine dispute of material fact and entitlement to judgment. Tamm’s own submissions conceded ambiguity (e.g., plat does not identify the dominant estate), and affidavits from Johnson and Gatzke conflicted about historic use and feasibility of vehicular travel. Moreover, the Planning Commission record suggested possible regulatory alternatives, undercutting “necessity.” Therefore, summary judgment for Tamm was correctly denied; the case must proceed to fact-finding.

c. Representation Issue Reserved
Although the Court surveyed persuasive authority disallowing pro se trustees, it invoked its “court of review, not first view” mantra. By remanding, it allows the district court and parties to build a factual record (e.g., whether Tamm is sole settlor/beneficiary) before the Court decides this novel question for North Dakota.

3. Potential Impact

Procedural Guardrails: Trial courts must now treat most easement disputes—particularly those involving plats, implied rights, or disputed delivery—as fact-intensive, rarely suitable for Rule 12(c) dismissal.
Land-use and Plat Practice: Developers and surveyors cannot rely solely on a plat label (“Access Easement”) to ensure enforceability; contemporaneous documentation of dominant-servient intent and delivery timing is critical.
Self-Representation by Trustees: While not decided, the opinion foreshadows a likely tightening of North Dakota’s practice rules, aligning with national trends. Future trustees should weigh retaining counsel early.
Litigation Strategy: Plaintiffs pleading easement claims should include factual detail on delivery, historic use, and necessity to survive procedural attacks. Conversely, defendants challenging such claims will need evidence, not mere pleadings, to prevail.

Complex Concepts Simplified

Dominant vs. Servient Tenement: The dominant land benefits from the easement; the servient land bears the burden (e.g., a driveway crossing).
Express Easement by Plat: An easement explicitly shown on a recorded subdivision map. Its validity can turn on when the grantor severed ownership and whether the plat sufficiently identifies who benefits.
Easement Implied from Pre-existing Use (Quasi-easement): Arises when an owner uses part of land to benefit another part (e.g., a private road) and later sells one part; the buyer may claim continuation of that use if it was apparent, continuous, and important.
Easement by Necessity: Created when property would otherwise be landlocked after severance; it lasts as long as the necessity lasts and disappears if reasonable alternative access becomes available.
Rule 12(c) Judgment on the Pleadings: A procedural motion testing only the sufficiency of the pleadings, assuming facts alleged by the opponent are true.
Delivery of a Deed: For a conveyance to be effective, the deed must be delivered (actually handed over or constructively by recording with intent). Timing of delivery affects when title—and any related easements—transfer.

Conclusion

Tamm v. Gatzke does not resolve whether the disputed easements exist, but it decisively clarifies how North Dakota courts must approach such cases procedurally. Rule 12(c) cannot serve as a shortcut when factual uncertainties swirl around deed delivery, plat intent, and historical land use. Simultaneously, the Court preserves the central teaching of summary-judgment doctrine—plaintiffs still bear the burden of proving easements by clear and convincing evidence. Finally, the looming question of trustee self-representation remains open, inviting future litigants to supply a record for definitive resolution. Collectively, the opinion strengthens protection against premature dismissal while reminding property owners and practitioners that careful drafting, recording, and documentation are the best safeguards for access rights.