may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
James Ronning, et al.,
Dorris L. Nikolai,
Paul S. Tungseth,
Steven S. Abblett, et al.,
Carver County District Court
File No. CX991759
Thomas B. Olson, Daniel M. Fiskum, Olson, Usset & Weingarden, P.L.L.P., 4500 Park Glen Road, Suite 300, Minneapolis, MN 55416 (for respondents)
Clinton McLagan, McLagan & Lerman, P.A., 2025 Centre Pointe Boulevard, Suite 260, Mendota Heights, MN 55120 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Lindberg, Judge.*
Respondents James and Debra Ronning brought this action to determine title to real estate against appellant Paul S. Tungseth and several other neighboring property owners who are not parties to this appeal. Respondents alleged that the northern boundary of their property had been determined by practical location and adverse possession. The district court determined that the boundary had been determined by practical location and adverse possession, and entered judgment in favor of respondents. We affirm.
Respondents own property described as Lot 1, Block 1, Old Slocum Tree Farm. Appellant owns property directly north of the center of respondents’ property. Steven S. and Lori A. Abblett own the property located north of respondents’ property and west of appellant’s property. Doris L. Nikolai owns the property located north of respondents’ property and east of appellant’s property.
The disputed property is about eight feet wide and runs east and west along the northern edge of respondents’ property. A wire fence has been located at the northern boundary of the disputed property for more than 40 years. A wooden privacy fence also exists near the northern edge of the disputed land. The southern boundary of the disputed property is the boundary line set forth in the legal description of respondents’ property. There is a double row of pine trees along the southern boundary of the disputed property.
Appellant purchased his property in 1998 from Clarke Nicholson, Jr., and Mary Nicholson, who had owned the property since 1957. Clarke, Jr., and Mary Nicholson built a house on the property and lived in it and raised their five children there. Clarke Nicholson, Jr., testified that he and his family believed that the wire fence along the northern edge of the disputed property marked the southern boundary of their property. When Clarke, Jr., and Mary Nicholson bought the property from Halvor Bang, Bang showed Clarke Nicholson, Jr., an iron post located on the fence line and stated that the post marked the southwest corner of the property. Before this lawsuit began, Clarke Nicholson, Jr., wrote a letter to appellant stating that he and Mary Nicholson had always believed that the wire fence marked the southern boundary of appellant’s property. Clarke Nicholson, Jr., also testified that he told appellant that the wire fence marked the southern boundary at about the time appellant purchased the property.
Clarke Nicholson III, the 39-year-old son of Clarke, Jr., and Mary Nicholson, testified that he always understood that the wire fence marked the southern boundary of his parents’ property. Clarke Nicholson III recalled being at his parents’ house when appellant was moving in some of his things. Clarke Nicholson III, Clarke Nicholson, Jr., and appellant went outside to the backyard, which is the southern part of the property. Clarke Nicholson, Jr., showed appellant the wire fence, and Clarke Nicholson III heard his father say that the fence marked the southern boundary.
Doris Nikolai, who owns the land east of appellant, testified that her adult son, Alan Nikolai, took care of the outdoor work on the property. Brian Heacock, who performed tree services on three occasions for Doris Nikolai, testified that he always dealt with Alan Nikolai. Heacock testified that Alan Nikolai was concerned about a maple tree with a split in it, which was located about three feet south of the wire fence and north of the north row of pine trees, possibly damaging some buildings on his mother’s property if it fell. Alan Nikolai told Heacock that the tree was on his neighbors’ property and asked Heacock to prepare an estimate for his neighbors on the cost of removing the maple tree. James Ronning testified that Alan Nikolai personally delivered the estimate to him and said that it was Ronning’s responsibility to have the tree removed before it fell and damaged Doris Nikolai’s property. Alan Nikolai acknowledged that he might have delivered the estimate to James Ronning and admitted that the maple tree was only about three feet south of the wire fence. James Ronning later contacted Heacock, said that he had been referred by Alan Nikolai, and hired Heacock to remove the maple tree.
Respondents called several of the predecessors in title to their property and family members of predecessors in title to testify. Robert Slocum, whose grandparents owned respondents’ property from about 1910 until 1941, visited the property frequently as a child beginning in the mid-1930s. He displayed a picture taken of him and his brother on the property in 1941. The picture shows the double row of pine trees, which had been planted by Slocum’s grandfather. Slocum recalled the wire fence, which was already in disrepair when he was a child, and testified that he always understood the wire fence to be the northern boundary of his grandparents’ property.
Woodbury Andrews’s grandfather bought respondents’ property in 1941, and his mother became the owner in about 1961. Andrews visited the property frequently from the early 1940s, when he was a young child, until 1977. He recalled the double row of pine trees and testified that he always understood the barbed-wire fence north of the pine trees to be the boundary line of his family’s property.
Penelope Otis and her then-husband James Wilson bought respondents’ property from Andrews’s mother in 1976. Otis testified that when she and Wilson bought the property, they understood that the wire fence marked the property’s north boundary line. Wilson built a wooden privacy fence just south of the wire fence. Otis and Wilson frequently went horseback riding among the double row of pine trees. Otis never saw any of the neighbors to the north use the disputed property.
James Wilson conveyed respondents’ property to Montford Stokes in 1987. Neither Stokes nor any representative from his family testified at trial.
James Ring and his wife bought the property from Stokes in 1988 and lived there until 1993. The Rings maintained the property up to the wooden fence and understood the fence line to be the property line. Their sons constructed a dirt-bike track that went in and around and through the double row of pine trees and rode their bikes there. Ring recalled a conversation between him and Dan Nikolai, Doris Nikolai’s husband, when Ring was working in the area south of the wire fence behind the Nikolai home. Dan Nikolai acknowledged that the double row of pine trees was on Ring’s property and urged Ring to cut down or trim some of the trees in the north row of pines.
Peter Davis owned and lived on respondents’ property from 1993 until 1997. Davis testified that he understood the wire fence was the boundary and that he believed he owned the disputed property. Davis and his family used the disputed property to ride snowmobiles and BMX bikes.
Respondents bought the property in 1997 and have lived there since that time. Respondents have maintained the trees in the disputed area.
Appellant had his property surveyed after he bought it. Appellant called Dana Nicholson, Clarke, Jr. and Mary Nicholson’s son, about the survey results. Dana testified that he was surprised to learn that the survey showed the actual boundary to be nine feet south of the wire fence.
On appeal from a judgment when there has been no motion for a new trial, this court’s review is limited to whether the evidence sustains the findings of fact and whether the findings sustain the conclusions of law and the judgment. Hickerson v. Bender, 500 N.W.2d 169, 170 (Minn. App. 1993).
The trial court has authority to determine a disputed boundary by practical location. Halverson v. Village of Deerwood, 322 N.W.2d 761, 768 (Minn. 1982). The trial court’s determination of a disputed boundary is a factual determination, which is accorded the same deference on appeal as any other factual determination. Allred v. Reed, 362 N.W.2d 374, 376 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985). But
[s]ince the effect of a practical location of a boundary is to divest one of property to which he has a conceded title * * *, the evidence establishing such a location must be clear, positive, and unequivocal.
In re Zahradka, 472 N.W.2d 153, 156 (Minn. App. 1991) (quoting Moore v. Henricksen, 282 Minn. 509, 516, 165 N.W.2d 209, 215 (1968)) (omission in original), review denied (Minn. Aug. 29, 1991).
For a practical boundary location to be established by acquiescence, the “location relied upon must have been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations.” Allred, 362 N.W.2d at 376. Under the statute of limitations, the boundary location must be acquiesced in for 15 years. Minn. Stat. § 541.02 (1996); see Allred, 362 N.W.2d at 376 (citing Minn. Stat. § 541.02 (1984)). When the practical location of a boundary is established by acquiescence in a fence line,
[t]he acquiescence required is not merely passive consent to the existence of a fence * * *, but rather is conduct or lack thereof from which assent to the fence * * * as a boundary line may be reasonably inferred.
Allred, 362 N.W.2d at 376 (quoting Engquist v. Wirtjes, 243 Minn. 502, 507-08, 68 N.W.2d 412, 417 (1955)).
In Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980), the supreme court stated:
When a fence is claimed to represent a boundary line under an acquiescence theory, one of the most important factors is whether the parties attempted and intended to place the fence as near the dividing line as possible.
Appellant argues that there was no evidence as to who constructed the wire fence, when it was constructed, and whether it was intended to be a boundary fence. Therefore, appellant argues, the evidence is insufficient as a matter of law to prove acquiescence.
The Wojahn court, however, did not state that direct evidence of intent is required. Caselaw indicates that recognition of a fence line as a boundary is significant. See Wojahn, 297 N.W.2d at 305 (discussing evidence necessary to support a finding that practical location of a boundary was established by acquiescence); see also Amato v. Haraden, 280 Minn. 399, 404, 159 N.W.2d 907, 910 (1968) (considering acts and conduct of parties and their predecessors in interest in determining whether boundary had been established by practical location). Here, there was evidence that respondents and their predecessors in interest and the adjacent property owners to the north recognized the wire fence as the boundary line for more than 40 years.
Appellant argues that the evidence was insufficient to show actual and continuous possession of the disputed property by respondents and their predecessors in interest. Appellant cites no authority indicating that actual and continuous possession is required to establish a boundary by acquiescence, but use of the disputed property is relevant to determining acquiescence. See Allred, 362 N.W.2d 374 (affirming district court’s finding that boundary had been established by acquiescence). The district court found:
The Ronnings introduced clear and positive evidence which shows that the current owners of the adjacent tracts, and their predecessors in title, all treated the fence line as if it were the true boundary of the properties. The testimony of the Ronnings’ predecessors in title was unequivocal. Each witness testified that they believed the fence was the boundary between the properties. None could remember any of the Defendants or their predecessors making use of the Disputed Property, except for the Nikolai’s throwing feed there from time to time for wild animals. The Ronnings, and their predecessors in title, made use of the Disputed Property as if it were their own. They maintained it, cleared brush from it, and rode horses on it. One owner constructed a dirt bike track on it, which the subsequent owner continued to use. Jim Ronning paid to have trees removed from it. All of these persons made use of the Disputed Property in a manner consistent with the use made of similar property by others in similar circumstances. Of equal significance, the Defendants and their predecessors did not use or maintain the Disputed Property.
There is clear, positive, and unequivocal evidence that supports this finding and the finding supports the conclusion that appellant’s predecessors in interest acquiesced in the use of the property by respondents and their predecessors in interest.
Before title by adverse possession can be obtained, the disseizor must show, by clear and convincing evidence, an actual, open, hostile, continuous, and exclusive possession for the statutory 15-year period. 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.
Lechner v. Adelman, 369 N.W.2d 331, 334 (Minn. App. 1985) (citations and quotations omitted), review denied (Minn. Aug. 29, 1985). “One who leaves land in a wild and natural state cannot acquire title by adverse possession.” Nash v. Mahan, 377 N.W.2d 56, 58 (Minn. App. 1985).
Appellant argues that respondents’ and their predecessors’ use of the property was too sporadic to support a finding of actual and continuous possession. But the use required to show adverse possession depends in part on the nature of the property. See Murphy v. Doyle, 37 Minn. 113, 117, 33 N.W. 220, 222 (1887) (affirming finding of title by adverse possession when party did all in the way of occupying the land that the nature and condition of the property reasonably admitted of; it was just such occupancy and possession as was usual in this state at that date among the owners of new farms which they had just entered and were gradually improving as time and means would permit; no one else was in possession or claimed possession of any part of the tract). The district court found that respondents’ and their predecessors’ use of the disputed property was sufficient to show actual and continuous possession given the nature and situation of the property.
Appellant argues that the district court misunderstood the evidence about the wooden privacy fence and attributed too much significance to it. The district court’s findings show that Wilson’s construction of the wooden fence just south of the wire fence was one factor the court considered in determining that respondents and their predecessors possessed the disputed property. The district court’s findings do not indicate that the court misunderstood that the wooden fence ran the entire length of the boundary between respondents’ and appellant’s properties.
Appellant argues the 15-year period has not been met in this case because privity did not exist between Wilson, who owned respondents’ property from 1976 until 1987, and his successors in interest. Appellant argues that a preliminary plat prepared for Wilson and the final plat that was recorded in 1987 show that Wilson understood and intended the recorded legal boundary, not the wire fence, to be the northern boundary of respondents’ property. Wilson did not testify at trial, and his understanding as to the precise location of the northern boundary is not apparent from the face of the document.
Appellant argues that the evidence was insufficient to show open possession because the disputed property was covered with thick underbrush. The requirement that the possession be open means that the possession is visible from the surroundings or to one seeking to exercise his rights. Hickerson v. Bender, 500 N.W.2d 169, 171 (Minn. App. 1993). The district court found:
There is substantial evidence in this case that the record owners and their predecessors of the property knew that the disseizors were using and maintaining the disputed property and had many opportunities to exercise their rights.
The evidence supports this finding.
Appellant argues that the evidence was insufficient to show hostile possession. “Hostile” refers to the
intention of the disseizor to claim exclusive ownership as against the world and to treat the property in dispute in a manner generally associated with the ownership of similar type property in the particular area involved.
Ehle v. Prosser, 293 Minn. 183, 190, 197 N.W.2d 458, 462 (1972). The district court found:
[A] wooden privacy fence was constructed, horses were ridden on the disputed property, as well as, snowmobiles and dirt bikes. Substantial evidence was presented that the disputed property was used and maintained by Ronnings and their predecessors in a manner that establishes hostile possession of the disputed property.
The evidence supports this finding and the finding supports the conclusion that there was hostile possession. The uses that were made of the property are uses that are generally associated with ownership of similar type property in the area.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.