This opinion will be unpublished and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
Matter of the Petition of:
Conley Brooks, Jr., and Carol G. Brooks.
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. A29864
Wallace G. Hilke, Robert G. Mitchell, Jr., Lindquest & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents Conley Brooks, Jr., and Carol G. Brooks)
John B. Winston, Winston Law Office, 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents John C. Brooks and Joan T. Brooks)
Raymond C. Ortman, Jr., Ortman & Associates, 15600 Wayzata Boulevard, Suite 208, Minnetonka, MN 55391; and
Kevin W. DeVore, Ramsey & Devore, P.A., 2151 Hamline Avenue North, Roseville, MN 55113 (for appellants Charles P. Floyd and Joan M. Floyd)
Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Harten, Judge.
This appeal is from a district court order adopting the findings of fact and recommended order of the examiner of titles in a proceeding subsequent to initial registration of real property. The recommended order concluded that each of three competing sets of claimants own portions of the disputed property. We affirm in part, reverse in part, and remand.
The disputed property is a narrow strip of land that lies between Lake Minnetonka and Ferndale Road West in Minnetonka. The land is part of a larger parcel described in a certificate of title issued to Sarah A. Higgins in 1909. In 1910, Higgins conveyed a portion of her property to Ralph C. Bagley. The deed described the conveyed portion as:
All that peninsular point of land in Government Lot one (1) in Section two (2), in Township one hundred and seventeen (117), north of range twenty-three (23), West of the fifth meridian, lying south of the county wagon road as said road is laid out and traveled across said lot, and lying west of a line drawn parallel to, and eight hundred and thirty one (831) feet due west from, the east boundary line of said section two (2).
(Emphasis added.) The registrar of titles issued Higgins a residue certificate that described the boundary of the property retained by Higgins, in part, as:
thence at right angles South a distance of 421.55 feet to a point in the shore of Lake Minnetonka; thence Westerly along said shore of lake to a point 831 feet West of the East line of said lot; thence North and parallel to the East line of said lot to the center line of the County Road as laid out and traveled through said lot; thence Northwesterly along the center line of said County Road to the West line of said lot * * *.
Subject to the rights of the public to and in that certain County Road running Easterly and Westerly across said lot.
In 1922, Higgins platted part of her land as Country Club Estates. This plat created lots 23 and 24 as shown inappendix 1. In 1928, the Hennepin County Auditor executed the plat of auditor’s subdivision number 184, which created lots 107, 108, and 109 as shown in appendix 1. Appellants Charles P. Floyd and Joan M. Floyd own lot 23. Respondents Conley Brooks, Jr., and Carol G. Brooks own lot 24, and from 1994 until 1997, they owned lots 107, 108, and 109.
In April 1997, the Conley Brookses began a proceeding subsequent claiming ownership of the narrow strip of land between the county road and Lake Minnetonka. Their claim was based on the 1910 deed from Higgins to Bagley, which described the property conveyed to Bagley as “[a]ll that peninsular point of land * * * lying south of the county wagon road.” The Conley Brookses contended that this language described all land south of the county road and not just land that was part of the peninsula. Therefore, the Conley Brookses claimed, they owned the narrow strip of land between Ferndale Road West and the shore of Lake Minnetonka.
In July 1997, the Conley Brookses conveyed lots 107, 108, and 109 to respondents John C. Brooks and Joan T. Brooks. On September 8, 1997, the district court issued a supplemental order to show cause ordering the John Brookses to appear and defend any interest they might have in the disputed strip of land. The John Brookses did not appear in a May 1998 trial before Deputy Examiner of Titles Susan Ledray. In addition to the ownership of the narrow strip of land, another issue raised during the trial was the ownership of a parcel of land at the east end of the disputed strip. This parcel was referred to as the “filled area” because it was created by filling in a part of Lake Minnetonka. The John Brookses driveway to Ferndale Road West runs across the filled area.
Following the trial, Ledray issued a report of examiner recommending that the portion of the disputed strip that is adjacent to lot 24 be awarded to the Conley Brookses and the portion of the strip that is adjacent to lot 23 be awarded to the Floyds. Ledray did not address ownership of the filled area.
The Floyds moved to have the matter referred back to Ledray to address ownership of the filled area. The John Brookses moved to intervene. The district court granted the motion to intervene and referred the matter to Examiner of Titles Edward A. Bock, Jr., to retry all matters regarding the disputed land. The Floyds sought discretionary review of the intervention order by this court, and review was denied.
After a second trial, Bock issued a report of examiner recommending that the portion of the disputed strip that is adjacent to lot 24 be awarded to the Conley Brookses, the portion of the strip that is adjacent to lot 23 be awarded to the Floyds, and the portion of the filled area that lies south of the southern right-of-way line of the county road be awarded to the John Brookses. The Conley Brookses brought a motion asking the district court to adopt the report and recommended order. The Floyds brought a motion asking the court to revise the examiner’s report to award them all of the property. The John Brookses brought a motion asking the court to modify the examiner’s report.
The district court granted the Conley Brooks’s motion to adopt the examiner’s report and recommendation and denied the other motions.
D E C I S I O N
“A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue.” Goeb v. Tharaldson, 615 N.W.2d 800, 817 (Minn. 2000).
Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a referee, to the extent adopted by the court, shall be considered as the findings of the court.
Minn. R. Civ. P. 52.01. “In an action to be tried without a jury, the court shall accept the referee’s findings of fact unless clearly erroneous.” Minn. R. Civ. P. 53.05(b) .
When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court’s findings. Also, appellate courts defer to trial court credibility determinations.
Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).
To challenge the trial court’s findings of fact successfully, the party challenging the findings must show that despite viewing the evidence in the light most favorable to the trial court’s findings (and accounting for an appellate court’s deference to a trial court’s credibility determinations and its inability to resolve conflicts in the evidence), the record still requires the definite and firm conviction that a mistake was made.
Id. at 474.
1. The Floyds’ theory at trial was that they own the disputed strip of land because Higgins’s 1910 deed to Bagley described only land on a peninsula, which left Higgins as the owner of all of her land down to the water’s edge. However, the registrar of titles incorrectly drafted a residue certificate of title for Higgins’s remaining land that did not describe land down to the water’s edge. Consequently, the Floyds claimed, a strip of registered land disappeared from the land records, but title to the strip remained in Higgins. When Higgins platted her property in 1922, the description in the plat indicated that the centerline of the road was the southern boundary of lots 23 and 24, and Higgins continued to own the property south of the centerline until she died. Therefore, the Floyds contended, they became the owners of the property when they obtained deeds from Higgins’s heirs.
The Floyds argue that the district court erred when it divided the disputed property into pieces because there was no evidence to support the examiner’s finding of fact that Higgins intended to include the disputed narrow strip of land in lots 23 and 24 when she platted Country Club Estates. The Floyds contend that because Higgins’s 1922 plat clearly and unquestionably states that the southern boundary of Country Club Estates in the vicinity of the disputed land is the centerline of the county road, it was clear error for the examiner to conclude that Higgins intended to include the land south of the centerline in lots 23 and 24.
The Floyds argue further that the examiner’s sole stated premise for finding that Higgins intended to include the disputed land as part of lots 23 and 24 is that “[there] is no reason to believe that [Higgins] thought she owned any land along the lake shore that could be sold to anyone.” The Floyds contend that this premise is legally insufficient to support the examiner’s finding that the disputed land is part of lots 23 and 24 because the examiner “purports affirmatively to find a fact based solely upon the absence of evidence to support a different conclusion.”
In making this argument, the Floyds quote the examiner’s statement out of context. The examiner’s finding was not based solely upon the absence of evidence to support a different conclusion. The examiner’s finding was based on his examination of several documents that reflected actions taken by Higgins with respect to her land. The principal documents in this examination were the 1910 Higgins-Bagley deed and the residue certificate issued to Higgins following the conveyance of the peninsula to Bagley. The legal descriptions in these two documents were not consistent. The deed described the property conveyed to Bagley as “[a]ll that peninsular point of land * * * lying south of the county wagon road,” and the residue certificate described the southern boundary of the property retained by Higgins as the centerline of the county road. This inconsistency gave rise to the dispute over the ownership of the land between the centerline of the road and the shoreline of Lake Minnetonka.
In resolving this dispute, the examiner found that Higgins did not intend to convey to Bagley “any pieces of land not located on the peninsula nor any non-contiguous pieces of land.” But when preparing the residue certificate following this conveyance, the registrar of titles incorrectly described the southern boundary of the property Higgins retained as the centerline of the county road. When Higgins later platted her property, this incorrect description was used to describe the platted property. However, the examiner of titles explained in his memorandum:
The fact that the Registrar of Titles inartfully crafted a residue land description does not change the obvious meaning of Sarah A. Higgins’ actions: she intended to plat the land she owned in Government Lot 1 down to the water’s edge * * * .
The examiner’s finding that Higgins intended to include the disputed land as part of lots 23 and 24 is not based on an absence of evidence; it is based on his construction of the Higgins-Bagley deed, which, in turn, led to his conclusion that the registrar of titles made a mistake when drafting the residue certificate following the conveyance to Bagley. The Floyds agree with the examiner’s construction of the Higgins-Bagley deed. In fact, their ownership claim depends upon it. They simply disagree with the examiner’s conclusion that given his construction of the Higgins-Bagley deed, a mistake occurred in drafting the residue certificate. Their disagreement, however, is no more than an argument that the examiner should have reached a different conclusion. Even if the examiner could have reached a different conclusion than he did, the record does not support a definite and firm conviction that a mistake was made when the examiner found that Higgins platted her property down to the water’s edge. We therefore affirm the district court’s adoption of the examiner’s recommendations that the portion of the disputed strip that is adjacent to lot 24 be awarded to the Conley Brookses and the portion of the strip that is adjacent to lot 23 be awarded to the Floyds.
But the examiner’s finding that Higgins platted her property down to the water’s edge could be inconsistent with his conclusion that the John Brookses own the portion of the filled area that lies south of the southern right-of-way line of the county road. With respect to the filled area, the examiner found:
At the time the Higgins-Bagley deed was made in 1910, the “canal” on the northerly side of the peninsula, referred to in the deed, extended easterly of the “831 feet” line described in the deed. * * * However, by 1919 the canal had receded west of the “831 feet” line, possibly by the addition of fill. * * * Since that time the shore line at the easterly end of the canal has remained more or less as it appears now.
This means that following the conveyance of the peninsula from Higgins to Bagley, Higgins continued to be a riparian owner on the north side of the canal in the area that is now the filled area.
The general rule concerning the rights of the owner of riparian land in this state is well settled. The riparian owner’s title extends to the low-water mark.
State by Head v. Slotness, 289 Minn. 485, 486, 185 N.W.2d 530, 532 (1971) (citation omitted).
Under this rule, Higgins’s title extended beyond the shoreline to the low-water mark. Therefore, because the filled area extended all the way to Higgins’s shoreline, it appears that at some point, the filled area crossed the low-water mark and encroached on property within Higgins’s title. If the point where the filled area crossed the low-water mark is south of the southern right-of-way line of the county road, awarding the John Brookses the filled area south of the right-of-way line would encroach on property within the Floyds’ title. But if the southern right-of-way line of the county road is south of the low-water mark, the portion of the filled area added to the John Brookses’ certificate of title does not encroach on property within the Floyds’ title. However, we cannot find anything in the examiner’s report that indicates where the southern right-of-way line of the county road is in relation to the low-water mark. Consequently, the examiner’s findings do not support the conclusion that the John Brookses be awarded the filled area south of the southern right-of-way line of the county road.
We therefore reverse the district court’s adoption of the examiner’s recommendation that the filled area south of the southern right-of-way line of the county road be added to the description of the John Brookses property and remand this issue to the district court for further proceedings to determine the ownership of the filled area. Upon remand, the district court may open the record to receive additional evidence or may refer the matter to the examiner of titles pursuant to Minn. Stat. § 508.20 (2000) to take evidence and make a report to the court. This opinion should not be interpreted as an indication of how this issue should be resolved.
2. The Floyds argue that the examiner erred by denying their motion to dismiss the Conley Brookses for lack of standing. The Floyds contend that the Conley Brookses lost standing when they sold lot 109 to the John Brookses in July 1997. But even if the Conley Brookses lost standing as owners of lot 109, the examiner stated in his report:
[The Conley Brookses] are owners of a part of the disputed strip by virtue of their purchase of Lot 24, “Country Club Estates Hennepin County Minn.”; and not by reason of their prior ownership of [lot 109].
To establish standing,
a party must show some personal stake in the outcome of the controversy to assure adverseness and injury or threat of injury to a legally recognized, rather than personal, interest.
Envall v. Ind. Sch. Dist. No. 704, 399 N.W.2d 593, 596 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). The Conley Brookses maintained standing due to their ownership of lot 24, which gave them a personal stake in the outcome of the controversy.
3. The Floyds argue that the John Brookses should not have been allowed to intervene in the second action, because they waived their right to participate by not appearing in the first action after an order to show cause was issued ordering them to appear. In its order allowing the John Brookses to intervene, the district court did not state whether the intervention granted was permissive or of right.
Minn. R. Civ. P. 24.01, which applies to intervention of right, states:
Upon timely application anyone shall be permitted to intervene in an action when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Rule 24.01 is to be liberally construed. Omegon, Inc. v. City of Minnetonka, 346 N.W.2d 684, 687 (Minn. App. 1984), review denied (Minn. June 12, 1984). The timeliness of a motion to intervene is to be determined on a case-by-case basis. Id. Intervention is untimely if the rights of the original parties will be substantially prejudiced. Id. Because their driveway crosses the filled area, the John Brookses had an interest relating to the property that is the subject of the action. The disposition of the matter without the participation of the John Brookses would have impeded their ability to protect their interest, because the Conley Brookses had no interest in litigating ownership of the filled area for the John Brookses, and therefore, the John Brookses were not adequately represented by the Conley Brookses. The Floyds were not prejudiced by the intervention of the John Brookses, because the issue of who owned the filled area would have been an issue in the second trial whether or not the John Brookses intervened. Therefore, the John Brookses’ motion to intervene was not untimely, and the district court did not err by granting the motion.
Minn. R. Civ. P. 24.02, which applies to permissive intervention, also supports the district court’s decision allowing the John Brookses to intervene. Rule 24.02 states:
Upon timely application anyone may be permitted to intervene in an action when an applicant’s claim or defense and the main action have a common question of law or fact. * * * In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
“The granting of permissive intervention is discretionary with the trial court and will not be reversed unless a clear abuse of discretion is shown.” Omegon Inc., 346 N.W.2d at 687 (citation omitted). As explained above, the John Brookses’ motion to intevene was timely, their claims have a common question of law and fact with the main action, and their intervention did not unduly delay or prejudice the adjudication of the rights of the Floyds. The district court did not abuse its discretion by granting the motion to intervene.
Waiver is “a voluntary relinquishment of a known right.” Cohler v. Smith, 280 Minn. 181, 189, 158 N.W.2d 574, 579 (1968). There “can be no waiver without actual or implied intent to waive.” Id. Intent to waive can be “gathered either from the actions or the expressions of the party against whom the claim is asserted.” Monson v. Pickett, 253 Minn. 550, 555, 93 N. W. 2d 537, 541 (1958). The Floyds argue that the John Brookses waived any interest they have in this case when they agreed to have the Conley Brookses pursue the action on behalf of all of them. But this agreement does not indicate that the John Brookses intended to waive their rights; it indicates that they intended to have their rights asserted.
The Floyds also argue that the doctrines of laches and estoppel should be applied to the John Brookses to bar their participation in the action. The doctrines of laches and estoppel both contain a requirement of prejudice to the party claiming them. Klapmeier v. Town of Center of Crow Wing, 346 N.W.2d 133, 137 (Minn. 1984) (requiring prejudice as an element of laches); Stofferahn v. Great Am. Ins. Co., 309 Minn. 320, 323, 244 N.W.2d 160, 161 (1976) (essential element of estoppel is detrimental reliance). As explained above, the Floyds have not demonstrated that they were prejudiced when the John Brookses were permitted to intervene. Therefore, they did not meet their burden of proving laches and estoppel.
4. The Floyds argue that the referee erred by failing to consider evidence of “unclean hands” on the part of both of the Brookses. They contend that the Brookses fabricated an exhibit in an attempt to mislead the court into believing that the Conley Brookses retained standing to pursue their claim. But the Floyds have cited no authority supporting their claim that the doctrine of unclean hands applies and they do not explain how failing to consider evidence of unclean hands affected the examiner’s decision. We, therefore, decline to address their claim. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (assignment of error based on “mere assertion” and not supported by argument or authority in appellant’s brief is waived unless prejudicial error is obvious).
5. The Floyds contend that the examiner erred by addressing a number of residuary issues that either were not at issue or for which the examiner’s decision is merely advisory and that the examiner’s comments should be vacated and reversed. But the Floyds have not cited any authority that permits us to vacate and reverse comments that do not affect the examiner’s decision simply because the comments are not a necessary part of the examiner’s report. We, therefore, decline to address their claim.
Affirmed in part, reversed in part, and remanded.
A map of the disputed property and the surrounding area is attached as appendix 1. The road identified on the map as Ferndale Road West has been identified in legal descriptions as “the county wagon road” and “the County Road.”
 The Conley Brookses and the John Brookses are not related.