This opinion will be unpublished and

may not be cited except as provided by

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






Carolyn J. Abbott,


City of Prior Lake,


Filed August 20, 2002


Peterson, Judge


Scott County District Court

File No. 200100025


Mark J. Kallenbach, 2260 Ridge Drive, Suite 13, Minneapolis, MN  55416 (for appellant)


Pierre N. Regnier, Jessica E. Schwie, Jardine, Logan & O’Brien, P.L.L.P., 444 Cedar Street, Suite 2100, St. Paul, MN  55101-2160 (for respondent)


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

U N P U B L I S H E D   O P I N I O N


            Carolyn Abbot sought mandamus to compel condemnation of her land, alleging that the City of Prior Lake flooded it.  On appeal from summary judgment for the city, Abbott argues that (a) because the land at issue is Torrens property, the district court erred in ruling that the statute of limitations in Minn. Stat. § 541.02 (2000) precluded her from seeking condemnation based on the city’s 1981 construction of a dam; and (b) fact issues exist regarding whether part of the flooding occurred because of respondent’s 1999 and 2000 re-grading of nearby public property.  We affirm.


            Abbott petitioned for mandamus to compel inverse condemnation of her property by the city.  She alleged that the city’s 1999 and 2000 re-grading of a park near her property caused flooding of her property.  Later, Abbott moved to amend her petition to include a claim that the city’s 1981 construction of a dam caused flooding of her property.  The district court granted the city summary judgment, ruling that Abbott’s claim based on construction in 1981 was untimely under Minn. Stat. § 541.02 (2000) and that there was no admissible evidence supporting the remainder of Abbott’s allegations. 


            Mandamus is the proper vehicle for asserting a claim for inverse condemnation.  Stenger v. State, 449 N.W.2d 483, 484 (Minn. App. 1989), review denied (Minn. Feb. 28, 1990).  On appeal from summary judgment, we ask whether (1) there are any genuine issues of material fact and (2) the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  In addressing these questions, we view the record in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).[1] 

1.         Under Minn. Stat. § 541.02 (2000), a property owner has 15 years to seek inverse condemnation of property for a taking of property, and under Minn. Stat. § 541.05 (2000), a property owner has six years to seek inverse condemnation for a loss of access to property.  Beer v. Mn. Power & Light Co., 400 N.W.2d 732, 736 (Minn. 1987) (citing Forsythe v. City of South St. Paul, 177 Minn. 565, 570, 225 N.W. 816, 817 (1929)); see Reynolds Constr. Inc. v. City of Champlin, 539 N.W.2d 614, 618 n.2 (Minn. App. 1995) (noting that potential inverse-condemnation claim would be subject to 15-year limitation period of Minn. Stat. § 541.02), review denied (Minn. Dec. 20, 1995).  Here, the district court (a) noted that the parties “agree” that the dam caused at least some of the present flooding of Abbott’s land; (b) ruled that flooding caused by the dam was the equivalent of a physical taking; and (c) denied Abbott’s motion to amend her mandamus petition to allege a claim based on a taking caused by the dam because the claim was beyond the 15-year limitations period of Minn. Stat. § 541.02.  Abbott argues that because her property is Torrens property and because Forsythe, Beer, and Reynolds do not explicitly address Torrens property, they are not binding here.[2] 

            Beer, Forsythe, and Reynolds involve the current 15-year limitations statute or its predecessor.  Under the statute:

No action for the recovery of real estate or the possession thereof shall be maintained unless it appears that the plaintiff, the plaintiff’s ancestor, predecessor, or grantor, was seized or possessed of the premises in question within 15 years before the action.


Minn. Stat. § 541.02.  Abbott challenges the district court’s application of this statute here, essentially arguing that (a) the city’s conduct upon which she seeks to make a dam-based inverse-condemnation claim is the equivalent of the city adversely possessing her property; (b) under Minn. Stat. § 508.02 (2000), the city cannot adversely possess her property because it is Torrens property; and therefore (c) the adverse-possession statute of limitations cannot apply to her inverse-condemnation claim. 

            But Abbott admits that Forsythe and Beer did not specify whether they involved Torrens or abstract property.  Thus, the only case that definitely does not involve Torrens property is Reynolds, a case on which the district court did not rely.[3]  Also, because none of the cases states that it does not apply to Torrens property, Abbott is asking this court to draw a distinction that neither the supreme court nor this court has drawn, despite three previous opportunities to do so. 

            Additionally, even if Abbott correctly reads Forsythe and Beer to mean that the city’s conduct that could prompt an inverse-condemnation claim should be treated as an attempt by the city to adversely possess the property, Abbott’s argument assumes that the only basis for the rulings in Forsythe and Beer is the rationale that inverse condemnation is a species of adverse possession.  Beer, however, indicates otherwise.  In response to an argument that there was no limitation period for inverse-condemnation claims, Beer states

[i]t has long been established that a claim for compensation by the owner of property appropriated for public use may be barred by the lapse of time.


Beer, 400 N.W.2d at 736 (citing Stewart v. State, 105 N.Y. 254, 11 N.E. 652 (1887)).  Beer then explains that

[i]t is not uncommon for states to provide a special statute of limitations in eminent domain proceedings when the burden of taking the initiative in applying for compensation is thrust upon the [property] owner; and since public policy requires the speedy closing up of such proceedings, so that the expense may be definitely known before further improvements are undertaken, it is customary to provide a much shorter period of limitations than in ordinary civil actions.


Beer, 400 N.W.2d at 736 (citing 27 Am. Jur. 2d, Eminent Domain § 498).  While Minnesota has not enacted statutes of limitations specifically applicable to condemnation and inverse-condemnation claims, Beer explains that Forsythe “endorsed the application of general statutes of limitations in such circumstances” and distinguished cases in which property was damaged from those in which property was actually taken for public use without compensation.  Beer, 400 N.W.2d at 736.  Beer then concluded that

although the 15-year limitation period imposed by Minn. Stat. § 541.02 (1986) is applicable in cases in which there has been an actual taking of property, we hold that in actions for inverse condemnation or compensation for damages resulting from the limitation of access only, where the public authority is not in adverse possession of the land-owner’s property, the six-year statute of limitations is applicable.


Id. (emphasis added).[4]  Thus, Beer involved both the supreme court’s recognition that Minnesota lacks legislatively enacted statutes of limitations specific to condemnation and inverse-condemnation claims and its attempt to solve that problem by filling those gaps with generally applicable statutes of limitations.  For this reason, adopting Abbott’s argument that those statutes of limitations do not apply to cases involving Torrens property would be contrary to the supreme court’s attempt to solve the problem presented in Beer

2.         In an adverse-possession case, Minn. Stat. § 541.02 requires that the plaintiff (or her predecessor) be “seized or possessed of the premises in question within 15 years before the beginning of the action.”  Minn. Stat. § 541.02.  Also, registered land must be registered as a fee-simple interest.  Minn. Stat. § 508.04.  Citing these two statutes, Abbott argues that because her property is Torrens property, she has, and always has had, fee-simple title to it, and therefore has been “seized” of the property at all times.  Thus, she concludes, she meets the statute’s 15-year seizure limit and her inverse-condemnation action is timely under the statute.  This, however, is not an action for adverse possession; it is an action for inverse condemnation.  Additionally, adopting this argument would essentially mean that there is no statute of limitations for inverse-condemnation claims involving Torrens property.  And such a holding would be inconsistent with the portions of Beer indicating that policy favors resolution of inverse-condemnation claims so that the cost of government projects can be determined.  Beer, 400 N.W.2d at 736; cf. Minn. Stat. § 645.17(1) (2000) (stating, in determining intent of legislature, court must assume legislature does not intend an absurd result). 

3.         Citing Forsythe, 177 Minn. at 570, 225 N.W. at 818, Abbott argues that where an injury is continuing, she may recover for that portion of the damages incurred during the six years before the action was filed.  Abbott’s reliance on Forsythe to support this “continuing tort” argument is misplaced.  In Forsythe, the defendant “concede[d] that plaintiff is entitled to recover such damages as accrued within six years before the suit was commenced.”  Forsythe, 177 Minn. at 570, 225 N.W. at 818.  Moreover, under Beer, damages in an inverse-condemnation case are to be determined as of the date of the interference with the land and are to be set at the amount by which the market value of the property has decreased:

[I]t is the interference with a property right which gives rise to a right to commence inverse condemnation proceedings.  The actionable interference, however, is not–as the respondent contends–the limitation of access to his bait business with damages measured by the reduction in its profitability.  The compensable injury is the interference with the right of access to the highway from his real property measured by the diminution in the market value of the property. 


Beer, 400 N.W.2d at 735.  Because the diminution of the market value of the property occurred when the dam caused the property to be susceptible to flooding (or susceptible to more flooding than that associated with the wetlands originally on the property), it is not clear that any damages related to construction of the dam were suffered during the six years before this action was commenced. 

4.         In support of her allegations that re-grading the park caused additional flooding of her property, Abbott submitted a real-estate agent’s affidavit.  Based on this affidavit, Abbott argues that there is a fact question regarding whether the re-grading caused flooding on her land in addition to flooding caused by the dam.  The allegations in the affidavit that the re-grading of the park increased the amount of water on Abbott’s land are contrary to the allegations in the affidavits submitted by the city on those points. 

            For purposes of a summary judgment:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.


Minn. R. Civ. P. 56.05.  Here, while the district court ruled that the agent could testify regarding the water level on Abbott’s land, it ruled that the agent

lacks personal knowledge  * * *  at least based upon the information contained in his affidavit, to render an opinion on the causation of the flooding of [Abbott’s] property. 


The district court therefore refused to consider the affidavit and, consistent with Abbott’s deposition testimony that the dam rather than the re-grading caused the flooding, ruled that no fact question existed regarding whether re-grading the park caused additional flooding. 

            Generally, lay-witness testimony in the form of “opinion or inferences” is admissible if it is

limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact issue. 


Minn. R. Evid. 701.  The agent’s affidavit states that (a) he had “significant experience in real estate matters and real estate development;” (b) he first saw Abbott’s land six or seven years ago and is familiar with the water level on Abbott’s land; (c) the park “abuts” Abbott’s land; (d) after the re-grading of the park, the water level on Abbott’s land was higher; and (e) “given that the dam or dike constructed by [the city] in 1981 has not been changed, I have concluded that the only explanation for the additional flooding of Abbott’s [land] this spring, is due to [the city’s] change of grade of [the park].” 

This affidavit reflects personal knowledge that the water level on Abbott’s land was higher after the re-grading.  But the affidavit contains nothing more than a conclusory opinion that the re-grading caused the higher water level.  The affidavit does not even attempt to describe how the re-grading changed the contour of the land or the flow of water across the land.  It is undisputed that affidavits must be based on the affiant’s personal knowledge.  Without some explanation of how the effects of the re-grading observed by the agent increased the water level on Abbott’s property, there was no basis for the district court to conclude that the agent’s opinion is rationally based on his perceptions.  Cf. Urbaniak Implement Co. v. Monsrud, 336 N.W.2d 286, 287 (Minn. 1983) (noting that affidavits opposing summary judgment must be more than affidavits of unsupported conclusory facts).  Therefore, we must affirm the district court’s determination that the agent’s affidavit was insufficient to show that he had personal knowledge of the cause of the flooding.


[1] Abbott alleges that district court findings based on documentary evidence may be “disregard[ed]” on appeal, asserting that when findings are based on documentary evidence, an appellate court “is as able as the trial court to determine credibility[.]”  This is incorrect.  The rules were amended in 1985 to state that findings of fact “whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous[.]”  Minn. R. Civ. P. 52.01; see First Trust Co. Inc. v. Union Depot Place Ltd. P’ship, 476 N.W.2d 178, 181-82 (Minn. App. 1991) (explaining 1985 amendment of Minn. R. Civ. P. 52.01), review denied (Minn. Dec. 31, 1991).  We are not free to “disregard” a district court’s findings of fact that are based on documentary evidence. 

[2] Abbott alleges that the district court’s failure to explicitly address the Torrens nature of her property means that the district court “likely failed to consider the legal ramifications of Abbott’s lots being ‘Torrens property.’”  We cannot assume that the district court committed such an error.  Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949).  Therefore, we must assume that the district court implicitly rejected Abbott’s argument. 

[3] In arguing that the Torrens nature of her property should produce a result different from that suggested by Beer, Forsythe, and Reynolds, Abbott’s attorney included in the appendix to Abbott’s brief an affidavit dated after this appeal was taken, addressing the property at issue in Reynolds.  The city wants this court to strike the affidavit as not properly before this court but did not move this court to do so.  See Minn. R. Civ. App. P. 127 (stating, unless another form is prescribed by the rules, relief sought from appellate courts is to be sought by motion).  On this record, we will take judicial notice that the property in Reynolds was abstract property.  See Rogers v. Moore, 603 N.W.2d 650, 653 n.1 (Minn. 1999) (taking judicial notice that property at issue was abstract property). 

[4] Because Abbott’s property is Torrens property, it cannot be adversely possessed.  Minn. Stat. § 508.02 (2000).  Therefore, the city cannot be in “adverse possession” of Abbott’s land.  Thus, a literal reading of Beer could suggest that the six-year statute of limitations is applicable.  In that case, Abbott’s dam-based claim would be untimely.