This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Reliable Bronze & Mfg., Inc.,



Charles Olson, et al.,





Lawrence E. McDonough, et al.,



Filed October 10, 2000


Willis, Judge


Chisago County District Court

File No. CX98725



Clark A. Joslin, Clark A. Joslin Law Offices, P.A., 221 N.W. Second Avenue, Cambridge, MN  55008 (for appellant)


Barry L. Blomquist, Barry L. Blomquist Law Office, P.O. Box 578, 6356 Elm Street, North Branch, MN  55056 (for respondents)


            Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Reliable Bronze & Mfg., Inc., challenges the district court’s grant of a prescriptive easement over its property to respondents Lawrence McDonough and Victoria Frieberg.  Because the record does not contain clear and convincing evidence of an adverse use for a continuous period of at least 15 years, we reverse.



            Appellant Reliable Bronze & Mfg., Inc., owns property adjacent to the Rush Point Store.  Since April 1997, respondents Lawrence McDonough and Victoria Frieberg have owned and operated the Rush Point Store, a general store that sells, among other things, live minnows for fish bait.  In late winter or early spring 1998, Reliable’s owner, Charles Olson, told respondents that because Reliable was planning to construct a new building on its property, McDonough and Frieberg had to stop discharging overflow water from their minnow tanks onto Reliable’s property.  McDonough and Frieberg refused to stop, and in June 1998 Reliable commenced an action to enjoin them from discharging water onto Reliable’s property.  McDonough and Frieberg counterclaimed, arguing that they have a prescriptive easement over Reliable’s property.  Reliable subsequently received a temporary injunction prohibiting McDonough and Frieberg from discharging any overflow water onto Reliable’s property.

            After a bench trial, the district court concluded that McDonough and Frieberg were entitled to a prescriptive easement over Reliable’s property to discharge overflow water from their minnow tanks.  The court ordered that Reliable maintain a drainage line along the west boundary of its property for McDonough and Frieberg and that Reliable pay $250 in damages.   Reliable appeals.


This appeal is taken from the judgment entered pursuant to the district court’s findings and conclusions.  Reliable did not make a motion for a new trial.  When there has been no motion for a new trial, this court’s scope of review is limited to determining whether the evidence sustains the findings of fact and whether the findings sustain the conclusions of law and judgment.  Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).  The district court’s findings of fact will not be set aside unless they are clearly erroneous, and this court must give due deference to the district court’s opportunity to judge the credibility of witnesses.  Minn. R. Civ. P. 52.01; Wheeler v. Newman, 394 N.W.2d 620, 622 (Minn. App. 1986).  Whether the district court erred in its legal conclusions is reviewed de novo by this court.  Lindquist v. Weber, 404 N.W.2d 884, 886 (Minn. App. 1987), review denied (Minn. June 26, 1987).  

A prescriptive easement grants a right to use the property of another and is acquired by prior continuous use.  See Romans v. Nadler, 217 Minn. 174, 181, 14 N.W.2d 482, 486 (1944).  To establish an easement by prescription, a claimant must prove hostile, actual, open, continuous, and exclusive use for a period of at least 15 years.  McCuen v. McCarvel, 263 N.W.2d 64, 65 (Minn. 1978).  Each of the elements required to establish a prescriptive easement must be proved by clear and convincing evidence.  Rogers v. Moore, 603 N.W.2d 650, 657 (Minn. 1999). 

The district court did not make factual findings concerning each element but rather made only the following findings:

[McDonough and Frieberg] presented credible witnesses to persuade the court that the defendant and predecessors had sold minnows at the store since at least 1961, and had minnow tanks that drained across plaintiff’s land throughout that period.  [Reliable] presented credible witnesses to the contrary.  The court found this to be an unusually difficult credibility determination.    However, considering all the testimony the court concluded that the greater weight of the evidence clearly favored [McDonough and Frieberg’s] claim.


* * * *


            For more than 15 years, [McDonough and Frieberg], and their predecessors have discharged water from the minnow tanks kept and used in the general store located upon [McDonough and Frieberg’s] parcel, over under and across [Reliable’s] parcel, said use being open, exclusive and continuous, and hostile and adverse to the property interests of [Reliable].


Reliable argues that the record does not support a finding that the use of its land was hostile for the requisite 15-year period. Generally, use of land is presumed to be hostile when a claimant shows a use that is inconsistent with the owner’s rights “under circumstances from which the owner’s knowledge and acquiescence may be inferred.”  Burns v. Plachecki, 301 Minn. 445, 448, 223 N.W.2d 133, 136 (1974) (citing Lustmann v. Lustmann, 204 Minn. 228, 283 N.W. 387 (1939), rehearing denied (Minn. Jan. 27, 1939)).   A use that is based on the permission of the owner is not hostile.  See Wheeler, 394 N.W.2d at 623. 

At trial, two witnesses testified that Reliable’s owner, Charles Olson, granted permission for the discharge of water from the store onto Reliable’s property.  Larry Smieja, who owned the store from 1984 to 1988, testified that (1) he purchased minnow tanks for the store because he wanted to supplement the existing business with live-bait sales; (2) the septic system on the store’s property could not handle the water discharged from the tanks; (3) in autumn 1984, Smieja asked Olson for permission to drain minnow water onto Reliable’s property, and Olson granted permission for him to do so.  Charles Olson also testified that Smieja asked him for permission to drain minnow water onto his property in autumn 1984 and that he granted permission for Smieja to do so.

These witnesses’ testimony is uncontradicted and unimpeached, and the district court did not explicitly accept or reject the testimony of either witness. The district court may not arbitrarily disregard this testimony:

The rule is well established in this state that the court * * * cannot disregard the positive testimony of an unimpeached witness unless and until its improbability or inconsistency furnishes a reasonable ground for so doing, and this inconsistency must appear from the facts and circumstances disclosed by the record in this case.


O’Leary v. Wangensteen, 175 Minn. 368, 370-71, 221 N.W. 430, 431 (1928).  Nothing in the record here furnishes a reasonable ground for rejecting the testimony.  This uncontradicted evidence is consistent with a permissive use beginning in 1984, which broke any continuity of adverse use.  And the requisite 15-year period of adverse use could not have been completed between 1984, when Smieja received permission, and 1998, when Olson told McDonough and Frieberg to stop discharging water on Reliable’s property.     

But because the district court found that minnows had been sold at the store since 1961, it is possible that the court concluded that the 15-year period was satisfied sometime between 1961 and 1984.  The district court made no specific findings regarding when the 15-year period was satisfied.  It merely concluded that “the greater weight of the evidence” favored McDonough and Frieberg’s claim.  But McDonough and Frieberg had the burden to prove the elements of a prescriptive easement by “clear and convincing evidence.”  See Rogers, 603 N.W.2d at 657.  Thus, the district court applied the wrong burden of proof. 

“[T]he burden of clear and convincing evidence is less than that required by the ‘beyond a reasonable doubt’ standard in criminal matters and is met when the truth of the fact to be proven is ‘highly probable.’”  Id. (citing State v. Profit, 591 N.W.2d 451, 464 (Minn. 1999), cert. denied, 120 S. Ct. 153 (1999)).  “Clear and convincing evidence” means that the party’s evidence should be “unequivocal and uncontradicted, and intrinsically probable and credible.”  Deli v. University of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994) (citation omitted), review denied (Minn. Mar. 23, 1994).  “The greater weight of the evidence” means a fair preponderance of the evidence and does not reflect the greater burden of proof required by the clear and convincing standard.  4 Minnesota Practice, CIVJIG 14.15 & Use Note (1999). 

Even if the district court had applied the correct burden of proof, the record does not contain clear and convincing evidence of continuous use of Reliable’s property to drain water from minnow tanks for the required 15-year period.  It is undisputed that the store was owned and operated by a Mr. Boswell from at least 1961 to 1972.  It is also undisputed that Boswell, at least for some of the time that he owned the store, sold live minnows from a tank on the premises.  Betty McCoy testified that (1) she worked for Boswell from 1961 until he sold the store in 1972; (2) Boswell sold minnows out of tanks that were kept outside but were later moved inside; and (3) she knew nothing about how the tanks were drained.  Carl Stanley testified that (1) he sold minnows to Boswell and provided him with a minnow tank in about 1968 or 1969; (2) the overflow water from the tank would “run in a little ditch for * * * 30 feet, just so it crossed a driveway.  And then * * * down in[to] the swamp”; and (3) after about two years Boswell quit selling minnows and gave Stanley’s tank to someone else.   

Sheldon Porter testified that he bought the store from Boswell in 1972, that he operated the store until 1984, and that he never sold minnows or kept minnow tanks at the store.  Porter’s daughter, Karen Jacobson, testified that she worked at the store throughout the time that her father owned it and that she did not recall that there ever were minnows there.  But McDonough and Frieberg presented six witnesses who testified that they recalled buying minnows from Porter at various time between 1972 and 1984.  And one of the witnesses testified that Porter told him that the water discharged from the minnow tanks ran across Reliable’s property and into a swamp.  

            Olson, Reliable’s owner, testified that drainage of minnow water across Reliable’s property began in 1984 after Smieja requested permission.  Steve Campbell, a management employee who has worked for Reliable since 1978, testified that he has frequented the Rush Point Store over the years and that he first became aware of minnow sales after Smieja purchased the property.  Smieja testified that he has lived in the area since 1966 and has been familiar with the store since 1968.  Smieja also testified that he did not recall whether any of the prior owners sold live bait and that he bought a tank and started live-bait sales when he purchased the business in 1984. 

It is the province of the district court to resolve conflicts in testimony and to evaluate the credibility of witnesses.  Larson v. Amundson, 414 N.W.2d 413, 418 (Minn. App. 1987).  Where neither side produces testimony that is inherently more believable than the other, the district court will be upheld if “there is evidence in the record, which, if believed, would reasonably support its decision.”  Kenney v. Webb, 352 N.W.2d 848, 849 (Minn. App. 1984).  The district court stated that this case required him to make “an unusually difficult credibility determination.”  But even if the district court believed all of the testimony presented by McDonough and Frieberg’s witnesses, the record does not contain clear and convincing evidence of continuous use for any 15-year period.  Here, there is uncontradicted testimony that Boswell gave away his minnow tank and did not sell minnows for the year or two immediately preceding his sale of the store in 1972.  And although there is testimony, albeit contradicted, that Porter sold minnows from 1972 to 1984, only one witness offered testimony about where Porter drained the water:  Phil Leier testified that Porter told him that he drained the water into the swamp on the other side of Reliable. 

The record does not contain clear and convincing evidence that Reliable’s land was subject to an adverse use for a continuous period of at least 15 years.  Therefore, we reverse.