This opinion will be unpublished and

may not be cited except as provided by

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






Fredrick R. Schilling, et al.,





Zev Oman, et al.,



Reliant Energy Minnegasco,

a division of Reliant Energy Resources Corp.,

a Delaware corporation, et al.,



Filed June 4, 2002

Affirmed in part, reversed in part, and remanded
Klaphake, Judge


Hennepin County District Court

File No. 0015990


Jonathan M. Bye, Lindquist & Vennum, 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondents)


Daniel W. Stauner, P.O. Box 28247, Crystal, MN  55428-0247 (for appellants)


            Considered and decided by Klaphake, Presiding Judge, Hanson, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


            This quiet title action raises the issue of whether adverse possession bars appellants Zev Oman and Kristi Oman’s claim of title to a small strip of their residential property at 2400 Stevens Avenue South in Brooklyn Park.  Respondents Fredrick R. Schilling and Debra Schilling own the adjoining property to the north of appellants’ property.  The district court granted summary judgment to respondents, concluding that the irregular area of property subject to the adverse possession claim begins about 10.5 feet to the south of the true boundary line between the properties, at the east end of respondents’ lot, and runs in a 158.3-foot line along a wooden fence to about 5.2 feet from the true boundary line at its west end, where the wooden fence ends.  Respondents erected the wooden fence in 1988 to replace a chain-link fence erected by previous owners in 1973.

            Appellants claim that a photograph included in the record calls into question the length of the chain-link fence that was used, in part, to establish the 15-year period of possession necessary for a valid adverse possession claim.  Because we conclude that there are no issues of disputed fact regarding the area covered by both the chain-link and wooden fences, we affirm the grant of summary judgment as to that portion of the subject property.  Because we conclude that the photograph raises a material fact issue as to whether the chain-link fence extended as far to the west as the wooden fence now does, we reverse and remand as to the remaining portion of the subject property.


            A district court may grant summary judgment on a claim only where no genuine issue of material fact is in dispute and one party is entitled to judgment on a matter of law.  Minn. R. Civ. P. 56.03.  “[S]ummary judgment is inappropriate when reasonable persons might draw different conclusions from the evidence presented.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (citation omitted).  “The elements necessary to prove adverse possession * * * require a showing that the property has been used in an actual, open, continuous, exclusive and hostile manner for 15 years.”  Rogers v. Moore, 603 N.W.2d 650, 657 (Minn. 1999) (citation omitted); see Minn. Stat. § 541.02 (2000) (setting forth 15-year possession requirement).  “The party seeking to establish adverse possession must do so by clear and convincing evidence.”  Denman v. Gans, 607 N.W.2d 788, 794 (Minn. App. 2000) (citation omitted).

            Appellants argue that respondents have not shown by clear and convincing evidence that the chain-link fence extended as far to the west as the wooden fence does for purposes of establishing continuity of possession.  See Ford Consumer Fin. Co. v. Carlson & Breese, Inc., 611 N.W.2d 75, 77 (Minn. App. 2000) (“The possession of successive occupants, if there is privity between them, may be tacked” to establish adverse possession), review denied (Minn. Aug. 15, 2000).  Appellants contend that photograph 2C attached to Fredrick Schilling’s affidavit establishes that the chain-link fence ended at the back of respondents’ home, while the wooden fence that replaced it, as indicated in a current survey, extends some distance further to the west towards the front of the home.  Viewing this evidence in the light most favorable to appellants, the photograph does suggest that there is a difference in the lengths of the fences.  See Vetter v. Sec. Counsel Ins. Co., 567 N.W.2d 516, 520 (Minn. 1997) (on motion for summary judgment, “reviewing court must view evidence in the light most favorable to the party against whom summary judgment was granted”).

            The district court, despite examining a record that included this photographic evidence, concluded that respondents had provided “clear evidence that the fence has been on the site, in either chain link or wooden incarnations, since 1973,” and it granted summary judgment on respondents’ claim to the whole subject property.  While other record evidence, including the statements of prior owners of the properties and statements of neighbors who have lived in the area, tends to establish the continuity of possession of the whole subject property,the district court’s role on summary judgment is to determine only whether there is sufficient evidence to create a genuine fact issue and not to make factual findings that require it to weigh the evidence.  DLH, 566 N.W.2d at 70.  Because appellants have identified a genuine issue of material fact regarding the precise area of property subject to the adverse possession claim, we reverse the district court’s grant of summary judgment on the portion of the subject property that represents the difference between the claimed lengths of the two fences.  Because appellants have failed to raise a genuine issue of material fact on the portion of the subject property that runs along the length of the chain-link fence, we affirm as to that portion of the subject property.[1]

            Finally, we reject respondents’ claim that appellants waived the issue of the difference in the fence lengths in their memorandum opposing summary judgment.  Appellants generally conceded the accuracy of respondents’ rendition of the facts, stating, in part, that the chain-link fence and wooden fence were in the same location.  Appellants claim that this issue arose only after they had completed their memorandum in opposition to respondents’ motion for summary judgment, because respondents had been slow to respond to discovery and because they received Fredrick Schilling’s affidavit including the attached photograph after they had filed the memorandum.  In light of this chronology of events and because rules pertaining to the filing of court memoranda on summary judgment motions are designed to streamline the process related to summary judgments rather than to serve as a means for curtailing legitimate claims, we conclude that the issue was not waived.  See Minn. R. Gen. Pract. 115.03(d)(3) (requiring party opposing summary judgment motion to recite material facts in dispute, but not requiring response to moving party’s recital).                

            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.

[1] We reject respondents’ claim that the issue of the length of the chain-link fence was not raised before or ruled on by the district court and therefore this court should not consider it on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (issues not raised to or ruled on by district court may not be raised for the first time on appeal).  It is undisputed that the photographic evidence challenging respondents’ claim on the length of the chain-link fence was included in the district court record; appellant’s claim is that the district court did not appreciate the significance of this evidence.  Thus, because the record demonstrates that this evidence was presented to the district court and was “litigated below,” the reviewability limitations of Thiele do not apply.  Id.