This opinion will be unpublished and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

C5-00-726

 

 

James W. Willhite, et al.,

Appellants,

 

vs.

 

Cheryl K. Collins and Donald Collins,

and the unknown heirs of the foregoing,

and any and all persons claiming any right,

title or interest in the real estate described

in the complaint,

Respondents.

 

 

Filed December 26, 2000

Affirmed
Foley, Judge
*

 

Cass County District Court

File No. C197682

 

Steven H. Bolton, Bolton Law Office, P.O. Box 126, Park Rapids, MN 56470 (for appellants)

 

Stephen M. Baker, P.O. Box 924, Walker, MN 56484 (for respondents)

 

Considered and decided by Toussaint, Chief Judge, Stoneburner, Judge, and Foley, Judge.


U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellants James and Bonnie Willhite commenced a quiet title action pursuant to Minn. Stat. § 559.01 (1998) under the theory of adverse possession.  Because the trial court’s finding that appellants failed to demonstrate adverse use of the subject property for a full 15 years was not clearly erroneous, we affirm.

D E C I S I O N

            Appellants argue that the trial court erred in finding that they did not establish use of the subject property prior to April 4, 1982, and, therefore, did not meet the 15-year adverse possession requirement of Minn. Stat. § 541.02 (1998).  When a motion for a new trial is not made, this court’s review is limited to determining whether the court’s findings are clearly erroneous and whether it erred in its conclusions of law.  Minn. R. Civ. P. 52.01; Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993). 

Appellants argue that the trial court clearly erred in finding that they did not establish any use of the disputed property for a full 15 years.  Appellants filed a quiet title action on April 4, 1997, on the theory of adverse possession.  Therefore, in order to make out their claim of adverse possession, appellants were required to establish, by clear and convincing evidence, that they had adversely possessed the subject property since April 4, 1982.  See Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980) (requiring the adverse possessor to “show by clear and convincing evidence, an actual, open, hostile, continuous, and exclusive possession for 15 years”); see also Minn. Stat. § 541.02 (same).

It is undisputed on appeal that the following uses are evidence of adverse possession of the disputed property area by appellants:  a boathouse, woodpile, accessory buildings, and yard maintenance.  What is disputed is the date on which adverse possession began. Extensive testimony was taken in an attempt to establish a date on which each use began. After hearing the evidence, the trial court concluded that none of the aforementioned uses began prior to 1982.

Appellants assert that the court, in making its findings of fact, did not give sufficient weight to the following evidence:  (1) the testimony provided by appellants, Glinnons, and Krause that the boathouse on the subject property was completed by 1980; and (2) an attachment to a 1985 building permit, which indicated that the boathouse already existed.  Further, appellants argue that the trial court relied too heavily on (1) the fact that the date on a job estimate for construction of the boathouse may have been altered; (2) a 1982 letter from the county indicating that it had enclosed an application for a conditional use permit for a proposed boathouse; and (3) the fact that there was no record of a building permit for the boathouse.  The trial court, however, is in the best position to evaluate and weigh the evidence, and to make credibility judgments.  Minn. R. Civ. P. 52.01; Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779-80 (Minn. 1989).  Therefore, we merely look to the record to determine whether the evidence supports the findings of fact.

            Here, the trial court’s finding that no individual use of the subject property had been established for a full 15 years was not without support in the record.  While some testimony reflects that adverse use of the subject property may have begun in the 1960s with commencement of the boathouse construction, other evidence indicates that appellants did not begin using the subject property until as late as 1984.  Aerial photographs of the property in 1984, and accompanying testimony, showed merely the beginning of adverse use by appellants.  The photographs indicated that the boathouse on the subject property was in its construction stage, not fully completed.  Additionally, the photographs and other evidence in the record indicate that the other adverse uses (maintained yard, accessory buildings, and a woodpile) had not yet occurred.  Finally, tax assessment records indicate that the boathouse may not have been completed until as late as 1991.

In adverse possession cases, the evidence must be strictly construed “without resort to any inference or presumption in favor of the disseizor, but with the indulgence of every presumption against him.”  Phillips v. Blowers, 281 Minn. 267, 269-70, 161 N.W.2d 524, 527 (1968) (quotation omitted).  Based on evidence in the record and the presumption in favor of respondents, the trial court’s finding that no individual use had existed for a full 15 years was not clearly erroneous.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.