This opinion will be unpublished and

may not be cited except as provided by

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







Phil Anderson, et al.,





James A. Olson, et al.,




Filed July 16, 2002


Anderson, Judge


Chisago County District Court

File No. C4991444


Kevin A. Hofstad, Ledin & Hofstad, Ltd., 539 Sixth Street, Pine City, MN  55063 (for appellants)


Barry L. Blomquist, Esq., P.O. Box 578, 6356 Elm Street, North Branch, MN  55056 (for respondents)


            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant Phil Anderson challenges the district court order (1) granting respondent James Olson, Anderson’s neighbor, a prescriptive easement over Anderson’s property; (2) dismissing Anderson’s trespass and slander-of-title claims against Olson; and (3) concluding that a cartway established on Olson’s property in 1898 no longer exists.  Anderson argues that the district court’s findings of fact and conclusions of law were not supported by the record.  We affirm.



The following map contains a schematic representation of the properties involved in this dispute:




Belonged to

Phil Anderson

from 1948

to 1979.




Belonged to Phil Anderson from 1948 to 1989.  Sold to Don Larson in 1989.






Purchased by Everett Olson in 1962.

Purchased by James Olson in 1997.




Purchased in 1948.




COUNTY ROAD 14                       








- - - - - - - - - - - - - - - 1898 LENT TP. CARTWAY



- - - - - - - - - - - - - - - - -

This property dispute involves competing prescriptive-easement claims.  Appellant Phil Anderson owns properties directly to the east and west of property owned by respondent James Olson.  The eastern Anderson property abuts a county road, while the Olson land and the western Anderson property are not accessible by public roads.  Olson must cross the eastern Anderson property to access his property from the county road, and Anderson must cross Olson’s property to access his western property from his eastern property.  This case arose when Anderson and Olson each sought to prevent the other from crossing his property.

In 1898, the town of Lent established a cartway running east-west along the southern edge of the present Olson property and the northern edge of the adjacent property to the south.  The cartway extended one rod (16.5 feet) on either side of the property line, and was not accessible from any public road; its sole function was to provide a passage between properties located on either side of the Olson property.  Lent never recorded the cartway dedication with the county recorder. 

            Phil Anderson purchased property on either side of the Olson property in 1948.  Between 1948 and 1978, Anderson continuously used the cartway across the Olson property to travel between the eastern Anderson property and the western Anderson property.  Anderson testified at trial that the farmer who owned the Olson property between 1948 and 1962 never gave him permission to use the cartway.  James Olson testified that his family purchased the Olson property in 1962, and that beginning in the late 1960s on he was aware that Anderson used the cartway.

In 1977, Northern States Power Company (NSP) purchased part of the western Anderson property intending to construct an electrical tower.  Olson and Anderson granted NSP a 30-foot easement along the southern edge of their properties to allow NSP access to the tower from the county road.  On Olson’s property, the NSP easement overlapped the cartway such that Olson’s easement grant included the 16.5-foot cartway plus 13.5 more feet. 

NSP built a road on the easement in the spring of 1978 and installed a gate where the cartway meets the county road, at the eastern edge of the eastern Anderson property.  Anderson testified that he gave Everett Olson, James Olson’s father, permission to put his own lock on the NSP gate in 1979, and gave Everett Olson permission to use the gate until Olson moved away in 1989.[1]  James Olson and Everett Olson testified that Everett never asked Anderson’s permission to use the gate.  Both Olsons testified that Everett cut the chain himself in 1978 and installed his own lock, and that when that lock was removed by an unknown person in the late 1970s or early 1980s, Everett replaced it with another lock.  The replacement lock remained on the chain until May 1997.  James Olson testified that from the time his father cut the chain and installed his own lock in 1978 to 1996, when James Olson took possession of the property, neither he nor any member of his family had permission from Phil Anderson to use the gate or the NSP road.

Everett Olson vacated the Olson property in 1989, but owned the property until July 1996, when he sold it to James Olson.  Phil Anderson stated that between 1989 and 1996, he never saw any Olsons on the NSP road or on the Olson property.  James Olson testified that after his father moved off the property in 1989, James visited the property an average of two or three times a month until 1996, at which tine he purchased the property.  James Olson testified that he always accessed the property via the NSP gate and the NSP easement across Anderson’s eastern property.  Everett Olson testified that he regularly visited the Olson property between 1989 and 1996 for recreational purposes. 

Don Larson purchased the western Anderson property from Phil Anderson in 1989.  At the time of purchase, Anderson granted Larson a written easement across the NSP road on the eastern Anderson property to allow Larson access to the cartway on the Olson property.  In April 1997, James Olson told Phil Anderson that neither Anderson nor Larson had a right to use the cartway to access the western Anderson property.  In May 1997, Phil Anderson informed James Olson that Olson no longer had permission to use the NSP road crossing the eastern Anderson property. 

In September 1997, James Olson threatened a trespass suit against Larson.  Olson argued that because the cartway no longer existed, Larson and Anderson had no right to cross Olson’s property.  Anderson believed that the cartway still existed and was a public road.  At Larson’s request, Anderson then purchased back from Larson the southeast 1/4 of the western Anderson property and granted Larson an easement over the cartway, in which Anderson believed he had a prescriptive interest, so that Larson could access the western Anderson property.

Phil Anderson brought a quiet title action against James Olson to establish that Olson did not have a prescriptive easement over the NSP road on the eastern Anderson property or the right to use the gate to access the NSP road from the county road.  Anderson also alleged trespass and slander of title against Olson and requested general and special damages.  Olson counterclaimed, requesting a prescriptive easement over the eastern Anderson property over the NSP road and seeking a declaration that the cartway no longer existed under the Marketable Title Act.  Anderson claimed the cartway still existed as a public road or, in the alternative, that he had a prescriptive easement over Olson’s property by way of the cartway. 

The district court concluded that (1) Anderson had a 16.5-foot prescriptive easement over Olson’s property by way of the cartway; (2) Olson had a prescriptive easement over the NSP road on Anderson’s eastern property; (3) Anderson was not entitled to damages; and (4) the cartway no longer existed.  This appeal followed.



Because Anderson did not move for a new trial or for amended findings or conclusions of law,

the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment. 


Novack v. N.W. Airlines, Inc.,  525 N.W.2d 592, 596 (Minn. App. 1995) (quoting Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976)).  When an action is tried without a jury, we

give due deference to the trial court’s opportunity to judge the credibility of the witnesses and will not set aside such a finding of fact made by the trial court without a jury unless clearly erroneous.


Estate of Serbus v. Serbus, 324 N.W.2d 381, 385 (Minn. 1982) (citations omitted); see also Minn. R. Civ. P. 52.01.  Findings of fact are clearly erroneous only if they are not reasonably supported by the evidence and we are “left with the definite and firm conviction that a mistake has been made.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (quotations omitted).  The district court will be upheld if there is sufficient evidence in the record which, if believed, would reasonably support its decision.  See Peterson v. Johnston, 254 N.W.2d 360, 362 (Minn. 1977).  We do not reweigh the evidence; rather, we determine whether the evidence as a whole sustains the district court’s findings.  In re Salkin, 430 N.W.2d 13, 16 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988).

I.          Olson’s Prescriptive Easement Over the Eastern Anderson Property Via the NSP Road


Anderson argues that the district court erred by granting Olson a prescriptive easement over Anderson’s property by way of the NSP road.  We disagree.

“A prescriptive easement is based on prior continuous use and grants a right to use the property of another.”  Rogers, 603 N.W.2d at 656 (citations omitted).  To establish an easement by prescription, a claimant must prove that he or she used the easement for a period of 15 years and that the use was “hostile, actual, open, continuous and exclusive.”  Nordin v. Kuno, 287 N.W.2d 923, 926 (Minn. 1980) (citation omitted).  These elements must be proved by “clear and convincing evidence.”  Rogers, 603 N.W.2d at 657 (citation omitted).

The district court found that Everett Olson’s use of the NSP road on the eastern Anderson property was initially permissive, but became hostile when Olson’s lock was removed from the gate, in about 1980, and replaced by Olson without Anderson’s permission.  The court also found that Olson’s use of the road and the gate continued until 1996, when he sold the property to his son James.  Anderson argues that Olson’s replacement of the lock was not sufficiently hostile to constitute notice of an assertion of an adverse claim.  Anderson cites to Lustmann v. Lustmann, 204 Minn. 228, 231, 283 N.W. 387, 389 (1939) for the proposition that “‘the strictest proof’ of hostility of the use is required” to transform permissive use into adverse use, and contends that Olson did not make a sufficient showing of hostility.

To be “hostile,” a claimant’s use must not be based on the permission of the true owner.  See Hartman v. Blanding’s Inc., 288 Minn. 415, 421, 181 N.W.2d 466, 469-70 (1970).  Hostility is presumed where the claimant shows

open, visible, continuous, and unmolested use for the statutory period that is inconsistent with the owner’s rights, under circumstances from which the owner’s acquiescence may be inferred.


Block v. Sexton, 577 N.W.2d 521, 524 (Minn. App. 1998) (citations omitted).  Acquiescence means

passive conduct on the part of the owner of the servient estate consisting of failure on his part to assert his paramount rights against the invasion thereof by the adverse user.


Ehle v. Prosser, 293 Minn. 183, 191, 197 N.W.2d 458, 463 (1972) (quotation omitted).  Hostility in the context of prescriptive easements does not refer to personal animosity or physical overt acts against the property owner.  Grubb v. State, 433 N.W.2d 915, 918 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).   

The record supports the district court’s finding that Olson’s use of the NSP gate and the NSP road after placing his own lock on the chain triggered the presumption of hostility.  The burden of demonstrating that Olson’s use was permissive therefore shifted to Anderson.  See Larson v. Amundson, 414 N.W.2d 413, 418 (Minn. App. 1987) (stating that once the presumption of hostility is triggered, the property owner has burden of showing permissive use).  Permission means more than mere acquiescence; it requires the grant of permission in fact or by license.  Ehle, 293 Minn. at 191, 197 N.W.2d at 463.  Everett Olson testified that Anderson said nothing when Olson informed Anderson that Olson was placing his own lock on the gate.  There was no evidence presented that Anderson affirmatively granted Olson permission to use the gate and the road, and the district court concluded that Anderson failed to show that Olson’s use of the road was permissive.  This conclusion was sustained by the district court’s findings

Appellant also argues that Everett Olson did not use the road for the requisite 15 years, because Everett Olson replaced the lock in about 1980 and moved off his property in 1989.  But Everett Olson owned the property until 1996, and both he and James Olson testified that the Olson family continued to use the property and the road until 1996.  The district court credited the Olson testimony.  The district court’s findings sustained its conclusion that Olson acquired a prescriptive easement over the Anderson land by way of the NSP road.

Because we affirm the district court’s determination that Olson acquired a prescriptive easement over the eastern Anderson property, we do not address Anderson’s trespass and slander of title claims arising from Olson’s allegedly unlawful use of Anderson’s property, which depend for their viability on a prior conclusion that Olson had no right to use the NSP road. 

II.  Anderson’s Prescriptive Easement Over the Olson Property Via the Cartway

            Anderson argues that the 1898 cartway along the southern edge of the Olson property (and the northern edge of the property immediately to the south) still exists as a public road that Anderson is entitled to use to access his western property.  Olson argues that pursuant to the Marketable Title Act (MTA), Minn. Stat. § 541.023 (2000), the cartway no longer exists because it was not recorded by the Lent township within forty years of its creation and had been abandoned.  The district court concluded that Lent’s property interest in the cartway was extinguished under the MTA, and determined that it no longer exists.  The district court also concluded that Anderson acquired a prescriptive easement over the Olson property via what had been the cartway through his hostile, actual, open, continuous, and exclusive use of the cartway between 1948 and 1978.  We hold that both conclusions were sufficiently supported by the evidence.

            The MTA may be invoked as a defense when a party claims title to property and another party asserts a claim to the same property.  See Padrnos v. City of Nisswa, 409 N.W.2d 36, 38 (Minn. App. 1987), review denied (Minn. Sept. 23, 1987).  The MTA applies to public roads.  Township of Sterling v. Griffin, 309 Minn. 230, 235, 244 N.W.2d 129, 133 (1976).

Lent established the cartway in 1898, and recorded it with the county auditor, but not with the county recorder.  “[C]ounty auditor’s records do not constitute notice of an interest in land.”  Township of Sterling, 309 Minn. at 234, 244 N.W.2d at 132 (citations omitted).  The cartway was therefore not properly recorded.  

The MTA applies when (1) the party invoking the Act has a “claim of title based upon a source of title, which source has then been of record at least 40 years,” Town of Belle Prairie v. Kliber, 448 N.W.2d 375, 378 (Minn. App. 1989) (quotation omitted); and  (2) the party against whom the Act is invoked can be conclusively presumed to have abandoned all interest in the property.  Id.  There was no claim here against Olson’s source of title.  A presumption of abandonment arises if the party against whom the MTA is invoked has failed to record its interest in the property within 40 years from the date that interest is established.  Minn. Stat. § 541.023; Township of Villard v. Hoting, 442 N.W.2d 826, 829 (Minn. App. 1989). 

            Because Lent did not record the cartway, the presumption of abandonment was triggered here.  “The presumption of abandonment could be overcome by a showing of possession by the city.”  Foster v. Bergstrom, 515 N.W.2d 581, 587 (Minn. App. 1994).  “Possession must be present, actual, open, and exclusive” and “must place a prudent person on inquiry that the road is a public road.”  Id. (citations omitted).  There is no evidence in the record that Lent ever maintained or otherwise indicated possession of the cartway.  We hold that the evidence here was sufficient to support the district court’s conclusion that Lent abandoned the cartway, which no longer exists, and that Anderson had a 16.5-foot prescriptive easement over Olson’s property by way of the former cartway.



[1] The NSP gate was secured by a chain containing several locks linked together.  The owner of any individual lock was therefore able to open the gate.