This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-2084

 

Elliot R. Annett, et al.,

Appellants,

 

vs.

 

David Lee Snelling, et al.,

Respondents.

 

Filed June 12, 2001

Affirmed

Kalitowski, Judge

 

Becker County District Court

File No. C80031

 

John A. Masog, 201 South Main Street, Park Rapids, MN 56470 (for appellants)

 

Mark J. Thomason, Thomason Law Office, Edgewater Office Plaza, Suite #1, 107 South Grove, P.O. Box 87, Park Rapids, MN 56470 (for respondents)

 

            Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            This action arose out of a dispute between appellants Elliot, Patricia, and Maxine Annett and respondents David and Patricia Snelling over the location of the boundary between their adjoining parcels of land.  Appellants contend the district court erred in rejecting their attempt to establish the boundary line by practical location through acquiescence or by adverse possession.  We affirm.   

D E C I S I O N

I.

            On appeal, a district court’s findings on the practical location of a boundary will not be altered unless manifestly and palpably contrary to the evidence.  Gifford v. Vore, 245 Minn. 432, 434, 72 N.W.2d 625, 627 (1955).  A party must provide clear and convincing evidence to establish a boundary by practical location.  See Phillips v. Blowers, 281 Minn. 267, 269-70, 161 N.W.2d 524, 526-27 (1968) (evidence must be “clear, positive and unequivocal” (citation omitted)).

            Appellants contend they provided clear and convincing evidence that a boundary had been established by practical location by showing respondents’ predecessor in title acquiesced in the boundary for the requisite period.  We disagree.

            One way to establish a boundary by practical location is to show acquiescence by the adjoining landowner for over 15 years.  Phillips, 281 Minn. at 269 n.2, 161 N.W.2d at 526 n.2 (conditions of acquiescence must exist for at least the 15-year statute of limitations period); Fishman v. Nielsen, 237 Minn. 1, 1, 53 N.W.2d 553, 553-54 (1952).  Knowledge of the true boundary line is not required.  Engquist v. Wirtjes, 243 Minn. 502, 507, 68 N.W.2d 412, 416 (1955).  Acquiescence occurs when adjoining landowners mutually construct a fence with the intention that the fence represents an adequate reflection of the property line.  Fishman, 237 Minn. at 5-8, 53 N.W.2d at 555-57.  But acquiescence is not established when landowners erect markers or physical barriers that are not intended to identify boundaries.  See Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980) (erecting fence for uncertain purpose did not establish acquiescence); Weis v. Kozak, 410 N.W.2d 903, 906 (Minn. App. 1987) (constructing fence to restrain cattle did not establish acquiescence).

            We reject appellants’ contention that this case is controlled by Fishman.  In Fishman, the plaintiff’s predecessor in title instructed his tenant to build a fence “as close to the line as possible without going to any expense of surveying.”  237 Minn. at 5, 53 N.W.2d at 555.  Before building the fence, the tenant discussed with the defendant’s predecessor “where they figured the line was.”  Id. (quotation omitted).  Here, unlike Fishman, evidence of the parties’ intent was limited.  Although appellant Maxine Annett testified that her husband and respondents’ predecessor in title erected a fence in 1944 between the two properties, evidence was not presented indicating that it was intended by both parties to be the boundary line.  Thus, we cannot say the district court erred in finding that appellants did not prove by clear and convincing evidence that respondents’ predecessor in title acquiesced to the placement of a boundary by practical location.  See Wojahn, 297 N.W.2d at 305 (finding that party failed to prove boundary by implication when a fence was deteriorating and in disrepair, and it was unclear why the fence was initially built).

II.

            Appellants contend the district court erred in finding that they failed to establish title by adverse possession.  We disagree.  The district court’s factual findings in an action for adverse possession will not be set aside unless clearly erroneous.  Grubb v. State, 433 N.W.2d 915, 917 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).  The party claiming title by adverse possession must establish by clear and convincing evidence “actual, open, hostile, continuous, and exclusive” possession of the property for 15 years.  Ford Consumer Fin., 611 N.W.2d at 77; see Minn. Stat. § 541.02 (2000).

            The district court found that appellants did not meet their burden of establishing continuous use of the land for a 15-year period.  Continuous possession generally requires ongoing occupation of the land without cessation.  Rice v. Miller, 306 Minn. 523, 525, 238 N.W.2d 609, 611 (1976).  The occupation of a tenant does not disrupt the adverse possession period.  Sherin v. Brackette, 36 Minn. 152, 154, 30 N.W. 551, 552 (1886).  Here, appellant Maxine Annett testified that her family farmed the disputed parcel sporadically.  She admitted that the fields on the parcel were often not used for periods of up to two years at a time.  While there was evidence that appellant Elliot Annett hunted on the parcel, there was not evidence as to the exact dates or years.  Moreover, Darwin Shaver testified that during his 15 years as appellants’ neighbor, appellants rented the parcel only five or six years.  In Standard v. Urban, 453 N.W.2d 733 (Minn. App. 1990), we held there was insufficient evidence of 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.  Because appellants’ use of respondents’ parcel is similarly sporadic as the use in Standard, the district court did not err in finding that appellants failed to meet their burden of establishing continuous use of the disputed parcel.  Finally, because appellants failed to meet their burden of establishing adverse possession, we need not address appellants’ challenge to the district court’s determination that appellants were required to pay taxes on the disputed parcel.

            Affirmed.