This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Curtis Lynner, et al.,
Ronald Johnson, et al.,
Filed October 31, 2000
Yellow Medicine County District Court
File No. C498299
Kevin Keith Stroup, Christianson, Stoneberg, Giles & Stroup, P.A., 300 O’Connell Street, Marshall, MN 56258-2638 (for respondents)
J. Richard Stermer, Prindle, Maland, Sellner, Stennes & Knutsen, Chtd., 102 Parkway Drive, P.O. Box 591, Montevideo, MN 56265-0591 (for appellants)
Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
Appellants challenge the denial of their motion for a new trial, claiming that the trial court erred in: (1) concluding that respondents met their burden of proof in their claim for adverse possession; (2) holding appellants liable for the actual damages caused when they removed certain shrubs; and (3) not considering newly discovered material evidence. Because we find no error in any of the challenged decisions of the trial court, we affirm.
In July 1974, respondents Curtis and Ruth Lynner bought property in Yellow Medicine County, renting it to tenants from 1974 until 1991, and occupying it as their home thereafter. In 1974, there were trees on the north end and south end of the property; the Lynners considered the straight line between the two sets of trees to be the east boundary between their property and the property later purchased by appellants Ronald and Mary Johnson. In the fall of 1996, Michael McKarral, who owned the Johnson property at that time, informed Curtis Lynner that the boundary between the properties was in question. The Johnsons bought the property from McKarral in July 1998. It is unclear when they became aware of the boundary dispute, but on September 10, 1998, the Johnsons removed several shrubs that the Lynners had planted on a line between the trees. On September 23, 1998, the Lynners brought an action seeking a determination of the exact boundary line between the parties’ properties and an award of damages based on the Johnsons’ wrongful removal of the shrubs.
At trial, Curtis Lynner testified that there was no shrubbery between the trees when he and his wife bought the property, but that in either 1974 or 1975, he planted at least a couple of shrubs on a line between the trees. He testified that only he and Ruth Lynner and their tenants maintained the shrubs and the trees, and that they mowed up to the shrubs, all without objection by owners of the property that is now the Johnsons’; that the boundary between the properties was never questioned until Michael McKarral did so in 1996 or 1997; that throughout the time the property was rented, Curtis Lynner made improvements to the house, stopped by several times each summer, and never saw his neighbors mow west of the shrubs. Curtis Lynner further testified that when in 1992 a tornado destroyed a black maple tree at the south side of the property that appeared to be in line with the shrubs, the Lynners paid for its removal.
The Lynners’ daughter, Jean, testified that while the property was being rented she passed by it several times, and that since the shrubs have been planted, they have always been considered the boundary between the two properties. She testified that the Lynners have maintained the shrubs since 1974, and that some of the shrubs were planted between 1974 and the present. She also testified that it was her parents who paid for removal of trees damaged by the 1992 tornado.
Howard Tyson, who owned the Johnson property from 1973 to approximately 1979, testified that he mowed west of the black walnut tree at the south end of the property, that between 1973 and 1978 there was no shrubbery, and that there was no understanding that the line that is now created by the shrubbery was the boundary between the two properties. He further testified that a crab apple tree in the line of trees the Lynners considered the boundary line was on his property and that he maintained it and mowed approximately three to four inches west of the tree.
Tyson’s wife, Erma, testified that she has very little knowledge of the property line and claimed that her family mowed the disputed property.
Michael McKarral testified that in the fall of 1996 he discovered that the trees the Lynners considered to be the boundary were approximately two feet from the legal boundary at the north and five feet from the legal boundary at the south. According to McKarral, he and his children mowed the disputed property, but his testimony is unclear as to whether they started that mowing only after they determined the actual boundary in 1996. He also testified he believed he made the Johnsons aware of the boundary question in August 1998.
Mary Johnson testified that for 30 years she lived directly behind the property she currently owns, and had a clear view of the disputed boundary from her kitchen window. She claims that there was no straight line of shrubs, that she was planning to replace the existing shrubs, and when she saw Ruth Lynner watering the shrubs she told Ruth she could transplant them because she (Mary) was removing them, and that Ruth Lynner did not object. Mary Johnson initially testified that she was unaware of the boundary dispute when she removed the shrubs, but later testified that in August she knew of the dispute.
In an order for judgment after trial, the court concluded that the Lynners had met their burden for showing adverse possession, and awarded treble damages of $1,950. After considering the Johnsons’ post-trial motions, the court reduced damages to $650 and denied all other requested relief. This appeal followed.
D E C I S I O N
The Johnsons challenge the trial court’s denial of their motion for a new trial. The decision of whether to grant a new trial lies within the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. Halla v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).
On appeal from denial of a motion for a new trial, the denial must stand unless the verdict is manifestly and palpably contrary to the evidence, viewed in the light most favorable to the verdict.
ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).
1. Adverse Possession
The Johnsons claim that because evidence does not support such a determination, the trial court erred in concluding that the Lynners met their burden of proof to show that they acquired the land by adverse possession. In order to obtain title by adverse possession, the adverse possessor “must show by clear and convincing evidence, an actual, open, hostile, continuous, and exclusive possession for 15 years.” Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980); accord Minn. Stat. § 541.02 (1978).
The acts testified to by the Lynners and Jean Lynner were hostile possessory acts that were visible to the public and showed their intent to appropriate the land as theirs. Accordingly, the evidence in the record supports the trial court’s determination that the possession was actual, open, and hostile. See Thomas v. Mrkonich, 247 Minn. 481, 484, 78 N.W.2d 386, 388 (1956) (stating possession is hostile where intent to claim ownership is manifested by occupying and maintaining the property); Hickerson v. Bender, 500 N.W.2d 169, 171 (Minn. App. 1993) (explaining that actual and open possession requires unconcealed, visible, possessory acts such that the owner might be apprised that another is claiming rights on the land).
The Johnsons claim that Jean Lynner lacked first-hand knowledge of the events about which she testified, and, therefore, her testimony was improperly admitted. We disagree. Jean Lynner testified that she visited the property several times during the adverse possession period and saw that the shrubs were being treated as the boundary between the properties, and that she helped her parents clean up the property after the tornado and knew they paid for the removal of trees. We defer to the trial court’s decision to admit that testimony and to determine what weight to give to it. See Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (stating whether to admit evidence is discretionary with district court); General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987) (stating appellate courts defer to district court’s assessment of weight to be given to witness testimony); see also Minn. R. Civ. P. 52.01 (due regard shall be given to opportunity of district court to judge credibility of witnesses); Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate court must defer to trial court’s credibility determination). Also, in addition to the testimony of Jean Lynner, that of Curtis Lynner supports the trial court’s conclusion that acts of possession were actual, open, and hostile.
Testimony also demonstrates that the Lynners’ actual, open, and hostile acts of possession occurred from 1974 or 1975 until the fall of 1996, when McKarral located the boundary. Therefore, evidence in the record supports the trial court’s conclusion that the possession was continuous. See Rice v. Miller, 306 Minn. 523, 525, 238 N.W.2d 609, 611 (1976) (stating continuous possession required ongoing occupation of the land without cessation).
The Johnsons’ claim that the possession, if any, was not continuous, rests on the fact that the Lynners rented out the property between 1974 and 1991. But rental of the property does not interrupt the adverse possession period. See Sherin v. Brackett, 36 Minn. 152, 154, 30 N.W. 551, 552 (1886) (stating that continuity of adverse possession is not interrupted by the adverse possessor’s tenant).
The Johnsons also rely on the testimony of Howard Tyson, who testified that between 1973 and 1978 there were no shrubs, nor was there any understanding that the line created by the shrubs was the boundary between the two properties. The trial court, however, described Tyson’s testimony as “unclear.” Where, such as here, the testimony is conflicting, the trial court is in the best position to weigh the witnesses’ credibility. See Minn. R. Civ. P. 52.01 (due regard shall be given to opportunity of district court to judge credibility of witnesses); Sefkow, 427 N.W.2d at 210 (appellate court must defer to trial court’s credibility determination).
The evidence also supports the trial court’s determination that possession was exclusive. See Merrick v. Schleuder, 179 Minn. 228, 232, 228 N.W. 755, 756 (1930) (stating that possession is “exclusive” where one makes extensive improvements and regularly maintains and uses the land as his own, thereby manifesting his intent to claim ownership to the exclusion of others). There is no evidence in the record indicating that anyone other than the Lynners planted and maintained the shrubs, paid for the removal of destroyed trees, or mowed west of the shrubs from 1979-1996.
Finally, the Johnsons argue that in light of this court’s decision in Standard v. Urban, 453 N.W.2d 733 (Minn. App. 1990), the facts in this case are not sufficient to meet each of the elements of adverse possession. We believe the Johnsons’ reliance on Standard is misplaced. In Standard, this court held that there was no adverse possession where the acts consisted of:
(1) mowing and maintaining the property each and every summer; (2) storing their lake equipment on the property each and every winter; and (3) allowing their children and grandchildren to play on the property.
Id. at 735. This court found the acts were “sporadic.” Id. Evidence in this case indicates actions by the Lynners and their tenants occurring continuously since 1974, not for just a few months each year. There is evidence that throughout the adverse possession period the Lynners planted shrubs, mowed, and at their expense removed trees that were destroyed by a tornado. Unlike in Standard, these acts show permanent possession and, therefore, are more than sporadic. See id. (stating that adverse possession period began when the adverse possessors built a shed on the property).
In light of the testimony at trial, we cannot conclude that the trial court’s determination that the Lynners had established the five elements of adverse possession is manifestly and palpably contrary to the evidence. See ZumBerge, 481 N.W.2d at 110 (holding that a trial court’s denial of a motion for a new trial will not be reversed unless the verdict is manifestly and palpably contrary to the evidence).
2. Damages Caused By Removing Shrubs
The trial court initially granted the Lynners treble damages in the amount of $1,950, reasoning that the damage was intentional; the trial court later concluded that because the Johnsons “wrongfully destroyed shrubs and trees in the disputed area, but had probable cause to believe said shrubs and trees were their own,” they were responsible only for $650, the actual damages caused. The Johnsons claim that they should not be liable for any damages because the shrubs were planted within their legal boundary.
Minn. Stat. § 548.05 (1998), which provides for treble and actual damages, states as follows:
If upon trial, the defendant proves having probable cause to believe that such property was the defendant’s own, or was owned by the person for whom the defendant acted, judgment shall be given for the actual damages only, and for costs.
We are cited to no authority permitting us to declare this statute inapplicable in a case involving a claim of adverse possession. In light of the language of the statute and the evidence in the record, we find no error in the trial court’s determination of damages.
3. Newly Discovered Evidence
The Johnsons argue that their motion for a new trial based on newly discovered evidence was erroneously denied by the trial court. We see no error. Minnesota law provides that a new trial may be granted for “[m]aterial evidence newly discovered, which with reasonable diligence could not have been found and produced at the trial.” Minn. R. Civ. P. 59.01(d).
The law is well settled that before a new trial can be granted on the ground of newly discovered evidence the party seeking the same must show affirmatively by his affidavits on the motion not only that such evidence was not discovered until after trial, but also that it could not have been discovered before trial by the exercise of reasonable diligence. * * * In this connection, he must state with particularity what he did to discover such evidence before trial so the court may determine whether he has exercised the required diligence.
Le Neau v. Nessett, 292 Minn. 242, 247, 194 N.W.2d 580, 583-84 (1972) (citation omitted).
The Johnsons wished to introduce the testimonies of four prior owners or renters of the two properties involved in this action. The record reflects, however, that one of the prospective witnesses was contacted before trial and was reluctant to testify, that the town and state of residence and the work phone number of a second prospective witness were known before trial, that a third prospective witness was located via the internet prior to trial, and the existence of the fourth prospective witness was known prior to trial, but no attempt was made to reach him until after trial.
In light of the evidence and the broad discretion afforded to the trial court in denying a motion for a new trial on the grounds of newly discovered evidence, there was no clear abuse of discretion in this case.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Ronald Johnson testified that he learned of the property dispute on September 17, 1998, the day the Lynners’ attorney called Mary Johnson to make her aware of the dispute.
 Even if we were to second-guess the trial court’s credibility determination regarding Tyson’s testimony about years 1973 to 1978, evidence in the record that the Lynners treated the disputed property as their own between 1979 and 1996, a period of some 16 years, would, in itself, be sufficient to support the court’s determination that the conduct in question had occurred for the requisite 15-year period.