This opinion will be unpublished and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

C5-01-1188

 

Gordon Forbes, as Trustee of the

Revocable Trust of Gordon Forbes,

Respondent,

 

vs.

 

Andrew Peter Kociscak,

Appellant,

 

and

 

The State of Minnesota, et al.,

Third-Party Defendants.

 

Filed February 26, 2002

Affirmed in part, reversed in part, and remanded

Parker, Judge*

 

Ramsey County District Court

File No. C700004997

 

Timothy R. Thornton, Kristin R. Sankovitz, Briggs and Morgan, P.A., 2400 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

 

Malcolm P. Terry, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for appellant)

 

Robert R. Nardi, Willeke & Daniels, 201 Ridgewood Avenue, Minneapolis, MN 55403 (for amicus curiae Ray Kroiss Homes)

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            In this boundary dispute over an accreted parcel, appellant alleges the district court erred by granting respondent summary judgment and awarding the accreted parcel to respondent because (1) either appellant owns the land under the doctrine of accretion or the rights to that land were retained by appellant’s predecessor in interest; or (2) he owns the accreted parcel under the doctrine of adverse possession.  Appellant also claims the district court abused discretion by overstating respondent’s trespass damages because, if there were any damages, they were not general damages but should have been calculated based on the accreted land’s rental value and because respondent failed to mitigate his damages.  We affirm in part, reverse in part, and remand to the district court to redetermine damages.

D E C I S I O N

 

On an appeal from summary judgment, we ask two questions:  (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law. 

 

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).

I.

            Appellant contends that the doctrine of accretion dictates that he owns the accreted parcel.  The Minnesota Supreme Court, in Sherwin v. Bitzer, 97 Minn. 252, 257, 106 N.W. 1046, 1048 (1906), stated that when a water line is a boundary line that water line, regardless of how it shifts, remains a boundary line.  Respondent’s legal description states respondent’s west property line (line A) terminates at the lake (see illustrative surveyed plats attached).  Thus under Sherwin, respondent’s property line still terminates at the lake, or at the point respondent’s property line intersects the northern boundary line of appellant’s grantor’s plat.  Moreover, we hold that, since the lake changed position so that appellant’s lot (Lot 4) as platted in 1983 no longer abutted the lake, Lot 4 included no appurtenant riparian rights when conveyed to appellant.

            Additionally, we note that even if Ray Kroiss Homes, Inc. (Kroiss) ever owned riparian rights, those rights do not accord Kroiss title to the accretions.  If Kroiss ever had a right to the accretions, that right disappeared when line A crossed the northern boundary line of the prior plat (line B) and separated Kroiss’s parcel from Gervais Lake.  Any existing riparian rights were extinguished at that time since the Kroiss parcel no longer abutted the lake.  Thus, we must give effect to line A, and find the district court made no error in determining that respondent owns the accreted parcel as he owns all of Lot 2, Block 1, in the prior plat east of line A.

II.

            Appellant contends he owns the accreted parcel under the doctrine of adverse possession.  To establish title by adverse possession, the disseizor (appellant) must show by clear and convincing evidence “an actual, open, hostile, continuous, and exclusive possession of the property for 15 years.”  Standard v. Urban, 453 N.W.2d 733, 735 (Minn. App. 1990).  Appellant first occupied the accreted parcel in 1988, and the hostility of his ownership ended when he offered to purchase the accreted parcel from respondent in 1999.  Thus, appellant’s possession does not satisfy the 15-year requirement for adverse possession.

            Appellant contends that his interest and that of his predecessor (Kroiss) can be tacked to satisfy the 15-year requirement.  “The possession of successive occupants, if there is privity between them, may be tacked to make adverse possession for the requisite period.”  Fredericksen v. Henke, 167 Minn. 356, 360, 209 N.W. 257, 259 (1926).  But since appellant’s predecessor in title was a corporation, and there was no showing that corporate officers or agents used the land, Kroiss and appellant are not in privity.  Thus, Kroiss’s ownership cannot be tacked to appellant’s to satisfy the requirements for adverse possession. 

III.

            A reviewing court will not disturb a damage award “unless its failure to do so would be shocking or would result in plain injustice.”  Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn. 1986) (citations omitted).  In reviewing a damage award, this court must consider the evidence in the light most favorable to the verdict.  Rayford v. Metro. Transit Comm’n, 379 N.W.2d 161, 165 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986).

            Appellant contends the district court erred in its calculation of damages when it charged appellant eight percent of the year 2000 fair-market value, and multiplied that number by the number of years appellant has owned his property (supposedly the beginning of the alleged trespass).  We agree.

Trespass encompasses any unlawful interference with one’s person, property, or rights, and requires only two essential elements:  a rightful possession in the plaintiff and unlawful entry upon such possession by the defendant.

 

Special Force Ministries v. WCCO Television, 584 N.W.2d 789, 793 (Minn. App. 1998).  The record indicates that neither party realized the accreted parcel belonged to respondent prior to 1999.  Prior to that time, respondent failed to exert control or possession over the accreted parcel.  Since respondent exerted no possession, and was not even aware of a right to possess, appellant did not interfere with respondent’s property or rights or possession.  Thus, on these facts, the state of knowledge of the parties indicates that a trespass could not knowingly be committed prior to respondent’s 1999 realization that he owned the accreted parcel.   We, therefore, reverse the damage award and remand for reconsideration on the issue of damages as of 1999.   

            Affirmed in part, reversed in part, and remanded.




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