This opinion will be unpublished and

may not be cited except as provided by

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








Virgil Schauer, et al.,





David Earl Zellmann,



Warrick M. Hallett, et al.,



Filed December 4, 2001


Robert H. Schumacher, Judge


Sibley County District Court

File No. C900109



Brent A. Christian, Christian, Spartz, Keogh & Christian, 65 South Park Avenue, Post Office Box 156, Le Center, MN 56057 (for respondents)


Robert A. Nicklaus, Nicklaus, Braaten & Hollenhorst, PLLC, Historic Chaska Mill, 500 Pine Street North, Suite 200, Chaska, MN 55318 (for appellant)


Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Peterson, Judge.



Appellant David Earl Zellmann challenges the award of certain land ("tract 2") to respondents Virgil and Lynn Schauer. Zellmann alleges that the record lacks sufficient evidence to show adverse possession, that the district court erred in awarding the Schauers treble damages for harm to trees done by Zellmann, and that he was entitled to damages from the Schauers for damage to trees on his land. We affirm.


In prior litigation, Zellmann pleaded guilty to criminal damage to property belonging to the Schauers and was directed to pay restitution, including $100 per tree for 15 trees. In subsequent civil litigation, the Schauers alleged that, under the theories of adverse possession and practical location of boundaries, they owned certain disputed land. They also alleged they were entitled to treble damages from Zellmann for the damaged trees. The district court ruled that the Schauers were entitled to the land in question by adverse possession and by practical location of boundaries and also entitled to an additional $3,000 for the damaged trees. After denial of his posttrial motion, Zellmann appeals.


1. Zellmann challenges the district court's findings six, seven, and eight. He also challenges certain factual statements in the memorandum accompanying the district court's order. See Minn. R. Civ. P. 52.01 (stating it is sufficient if findings of fact are included in district court's memorandum). Findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

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) (citations omitted). To successfully challenge findings of fact, 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., 607 N.W.2d at 474. That the record might support findings other than those made by the district court is irrelevant until after the party challenging the findings has (1) cited the evidence that supports (and could be construed to support) the challenged finding, and (2) affirmatively shown that this evidence, even when viewed in the light most favorable to the challenged finding, is still inadequate to support the challenged finding. See id. (stating both, "[t]hat the record might support findings other than those made by the trial court does not show that the court's findings are defective," and that only if findings are "clearly erroneous" does it become relevant that the record might support findings other than those that the trial court made); Minn. R. Civ. App. P. 128.02, subd. 1(c) (stating that when a party challenges findings of fact, the "evidence, if any, tending directly or by reasonable inference to sustain the * * * [challenged] findings * * * shall be summarized") (emphasis added). Thus, simply marshalling evidence that could support findings other than those made by the district court is inadequate to show that existing findings are defective.

We have thoroughly reviewed the record, especially Exhibits A and B, the testimony referring to and describing the information on those maps, and the testimony regarding what the Schauers were told was the north line of their property when they bought their land in 1978. Zellmann has not shown the challenged findings to be clearly erroneous. See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating appellate court's function "does not require [it] to discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court's findings" and that its duty "is performed when [it] consider[s] all the evidence * * * and determine[s] that it reasonably supports the findings"); Vangsness, 607 N.W.2d at 474-75 & n.1 (same).

2. Zellmann challenges the ruling that the Schauers adversely possessed "tract 2."

In order to establish title by adverse possession, the disseizor must show, by clear and convincing evidence, an actual, open, hostile, continuous, and exclusive possession for the requisite period of time which, under our statute, is 15 years. Subjective intent to take land adversely is not essential in this state and title by adverse possession may be obtained even though the disseizor does not intend to take land not belonging to him so long as he does intend to exclude all others. It is sufficient that the land is occupied by mistake.


Ehle v. Prosser, 293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972) (citations omitted); see Minn. Stat. 541.02 (2000). The district court must strictly construe the evidence "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).

We must reject the aspects of Zellmann's challenges that are, directly or indirectly, arguments that the testimony on which the district court relied was not credible. See City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980) (stating district court is "sole judge" of witness credibility and may accept all or only part of witness's testimony).

Zellmann alleges that the Schauers have failed to show adverse possession of "tract 2" because a witness admitted to moving the stakes showing the northern corners of the abutting "tract 1." Because "tract 2" is south of "tract 1" and because the record shows that boundary between "tract 1" and "tract 2" was independent of "tract 1's" northern boundary, how movement of "tract 1's" northern boundary would impact claims between the parties is unclear.

Zellmann alleges that the Schauers "place great reliance" on a fence they built in 1987 that included land north of tract 2 and that the Schauers took down in 1998. That fence enclosed the majority of "tract 2" as well as land north of "tract 2." Lynn Schauer stated that the Schauers had the permission of Zellmann's predecessor to include in the fenced area north of "tract 2." Zellmann argues the fence was not in place long enough to establish adverse possession. But, because the fence enclosed the vast majority of "tract 2" and because the Schauers' other uses of "tract 2" occurred before, during, and after the lifetime of the fence, the fence need not be independently sufficient to sustain adverse possession.

Zellmann notes that a number of the Schauers' uses of "tract 2" did not exist for 15 years and, based on these assertions, Zellmann argues that the Schauers could not have adversely possessed "tract 2." While several of the Schauers' uses of "tract 2" did not continue for the statutory 15-year period, adverse possession does not require that a single use continue for 15 years:

The law prescribes no particular manner in which possession shall be maintained or made manifest. It must be of such a character as to be unequivocal notice to the true owner that someone is in possession in hostility to his title. Much depends on the nature and situation of the land and the uses to which it is adapted.


Skala v. Lindbeck, 171 Minn. 410, 413, 214 N.W. 271, 272 (1927). Here, "tract 2" was homestead and agricultural land and has been continuously used for a series of agriculturally and homestead-related uses since the Schauers bought their land in 1978.

Admitting that the Schauers had cared for the lawn on part of "tract 2," Zellmann alleges that, under Stanard v. Urban, 453 N.W.2d 733 (Minn. App. 1990), review denied (Minn. June 15, 1990), the Schauers' lawn care was inadequate to allow adverse possession. Stanard, however, involved contested lake property. There, the disseizors cut grass each summer, stored lake equipment on the property, and let their children and grandchildren play on the property. Id., at 735. This court held that such conduct was insufficient to establish adverse possession. Id., at 736. "Tract 2" is not summer lake property. Additionally, the Schauers' uses of "tract 2" are more substantive and frequent than the sporadic uses involved in Stanard.[1]

3. The district court adopted the prior court's $100-per-tree valuation of the 15 trees Zellmann damaged, awarded the Schauers treble damages under Minn. Stat.  561.04 (2000), and reduced the $4,500 total-damage amount to $3,000 because Zellmann had previously paid $1,500 for the trees in restitution. Zellmann alleges that this award is defective because the prior court rejected the possibility of treble damages. But the Schauers' memorandum in the prior restitution proceeding "removed" any claim for treble damages from that proceeding.

Zellmann also argues that the district court misapplied the treble-damages statute by failing to consider the fact that treble damages are not available if the trespassing party "had probable cause to believe that the land on which the trespass was committed was the [trespasser's.]" The district court's memorandum accompanying its order emphasized this portion of the statute's language and still ruled that treble damages were appropriate. On this record, we conclude that the district court was aware of, and correctly rejected, this defense.

4. Zellmann alleges he is entitled to damages for trees the Schauers cut down on his property. The district court implicitly rejected Zellmann's claim. See Roberge v. Cambridge Coop. Creamery, 248 Minn. 184, 195, 79 N.W.2d 142, 149 (1956) (holding denial of motion for amended findings is equivalent to finding contrary to that sought in motion). The implicit finding that the Schauers did not cut down Zellmann's trees is not clearly erroneous. The Schauers denied cutting down Zellmann's trees, and Zellmann admitted that a neighbor, who is a lumberjack, could have cut down the trees in question.


[1] Because we conclude that the record supports the determination that the Schauers adversely possessed the land in question, we do not address the parties' disputes regarding whether the Schauers were entitled to the land in question under the theory of practical location of boundaries by acquiescence. Our review of the record, however, convinces us that the record supports the district court's ruling on this subject.