This opinion will be unpublished and

may not be cited except as provided by

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








Robert W. Owens, et al.,





Lynn J. Kelly, et al.,



Vernis Randall, et al.,

Third-Party Defendants.



Filed October 8, 2002


Robert H. Schumacher, Judge


Olmsted County District Court

File No. C9992252



Roger Matthew Stahl, Wendland & Utz, Ltd., 300 Wells Fargo, Post Office Box 939, Rochester, MN 55903 (for appellants)


Matthew Charles Rockne, 385 Main Street, Post Office Box 7, Zumbrota, MN 55992 (for respondents)



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

U N P U B L I S H E D   O P I N I O N


            Robert W. and Nancy Owens appeal the district court's judgment granting respondents Lynn J. and Sandra Kelly title to a disputed tract of land through adverse possession.  The Owenses claim that the district court improperly found that the Kellys' predecessors in interest, Vernis and Jancie Randall, held hostile, continuous, and exclusive use of the land.  We affirm.


The Owenses became equitable owners of a farm, including the disputed parcel (Tract C), by a contract for deed dated May 9, 1997.  The Owenses were conveyed title to Tract C by way of a quit-claim deed dated March 17, 1999, from Jean Wellner. 

The Randalls purchased a farm to the West of the Wellners (Tract D) on March 20, 1972.  During the preceding three years, the Randalls had rented Tract D as farmland from the previous owners.  The Randalls remained in possession of the property until they sold it to the Kellys on March 26, 1996, at about which time the Kellys took physical possession. 

An ancient fence line runs along the entire easterly and northerly boundaries of Tract C.  Both Tracts C and D have been entirely enclosed by fences except for the public driveway at the south end of Tract C, which runs between the two tracts.  The driveway proceeds north from the public access road and continues approximately half-way through Tract C and then veers west into Tract D.  The Randalls cut the grass on both sides of the driveway once a year, dragged the driveway once a year, and plowed snow off the driveway on one occasion.  The Randalls did not ask anyone's permission to use Tract C.     

The Randalls used the northern half of Tract C as cropland.  Between 1968 to 1996, the Randalls regularly cultivated and harvested crops on Tract D, and in the southerly half of Tract C up to the west side of the driveway, and in the northerly half of Tract C up to the north and east fence lines, leaving only enough room to turn farm machinery around.  The Randalls entered Tract C approximately 12 to 15 times a year to perform spring field preparation, fertilizing, summer spraying, cutting and baling hay, harvesting crops, and fall plowing.  The Randalls used Tract C in the same manner as they used their other agricultural property.

In the early 1980's, Fred Wellner asked the Randalls for permission to move a portion of an ancient fence line in the northerly half of Tract C, lessening the area of Tract C.  The Randalls gave him permission to move the portion of the fence line and Wellner erected a new fence approximately 6 to 8 feet to the west of the ancient fence.  The new fence is located in the north half of Tract C and runs along the edge of a tree line on the east side of Tract C.  The new fence line did not encroach on the open ground in Tract C, nor did it interfere with the Randalls' farming of Tract C or D.

The Randalls' neighbors, Walter Boyum, David Andrist, and Theron Kosmicki, all believed that the Randalls owned Tract C based upon the Randalls' use of the property. 

In the fall of 1989, Robert Owens began operating a licensed shooting preserve on the Wellner farm.  The shooting preserve operated from September until April of each year.  Robert Owens testified that he sent hunters to the tree line along the east side of Tract C.

            The Owenses brought an action to obtain a judicial determination of their rights to Tract C.  The Kellys counterclaimed, claiming title to Tract C by adverse possession.  The district court ruled that the Randalls' use of the property entitled the Kellys to simple title to Tract C by adverse possession. 


It is not the province of the appellate courts to reconcile conflicting evidence.  "On appeal, a district court’s findings of fact are given great deference, and shall not be set aside unless clearly erroneous.  * * *  If there is reasonable evidence to support the trial court’s findings of fact, a reviewing court will not disturb those findings."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (citations omitted).

            To establish title by adverse possession, the Kellys need to “show, by clear and convincing evidence, an actual open, hostile, continuous, and exclusive possession for * * * 15 years.”  Ehle v. Prosser, 293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972); see also Minn. Stat. § 541.02 (2000).  The Owenses challenge the district court's ruling regarding the hostile, continuous, and exclusivity of the Randalls' use of the land.  A 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). 

Hostility does not mean personal animosity but rather a manifestation of the intent

to claim exclusive ownership as against the world and to treat the property in dispute in a manner generally associated with the ownership of similar type property in the particular area involved.


Ehle, 293 Minn. at 190, 197 N.W.2d at 462 (citations omitted).  Possession is hostile where the intent to claim ownership is manifested by occupying the property.  Thomas v. Mrkonich, 247 Minn. 481, 484, 78 N.W.2d 386, 389 (1956)(citations omitted).  Title by adverse possession may be obtained even if the land is occupied by mistake and the disseizor does not intend to take land not belonging to him.   Ehle 293 Minn. 189, 197 N.W.2d at 462 (citation omitted).  It is sufficient that the land is occupied by mistake.  Id.

The district court found that the Randalls used Tract C as if it were their own property.  Although they did not intend to take property that did not belong to them, there is evidence that the Randalls believed Tract C was part of their property.  The Randalls' use of Tract C also led to their neighbors' belief that it belonged to the Randalls.

The Owenses argue that the Randalls' and the Kellys' use of the property was a neighborly forbearance on the part of the Owenses.  The Owenses rely on Romans v. Nadler, 217 Minn. 174, 180-81, 14 N.W.2d 482, 486 (1944), which holds that the reviewing court should use common sense in determining whether a specific use is hostile.  In Romans, the court noted that simple neighborly forbearances of the use of property would not make such a use hostile because then every adjoining landowner would gain adverse rights.  Id. at 181, 14 N.W.2d at 486.  In Romans, however, the forbearance came because there was no defined line between the disputing parties.  Id. at 181-82, 14 N.W.2d at 486.

In this case, the district court's finding that there was no agreement between the parties to suggest that the Randalls' use of the disputed property was part of an agreement between the Randalls and their neighbors is supported by the record.  The ancient fence line dividing the two parcels supports the finding that the Randalls' use was more than the subject of a neighborly forbearance.

            Adverse possession for any consecutive 15-year period is sufficient to establish continuity of use, Kelley v. Green, 142 Minn. 82, 84, 170 N.W. 922, 923 (1919), and the statutory period must only be completed before bringing an adverse-possession action.  Dean v. Goddard, 55 Minn. 290, 293-94, 56 N.W. 1060, 1061 (1893).  Continuous possession generally requires ongoing occupation of the land without cessation.  Rice v. Miller, 306 Minn. 523, 525, 238 N.W.2d 609, 611 (1976).  When examining a claim that the use of a parcel of property was sporadic or temporary, it is important to note that the use required to show continuous possession depends much on the nature and situation of the property and the uses to which it is adapted.  Murphy v. Doyle, 37 Minn. 113, 115, 33 N.W.220, 221 (1887). 

            The district court ruled that the Randalls' use of the property was continuous, based on the nature of the Randalls' activity.  The evidence showed that the Randalls cultivated crops on Tract C from 1968 to 1996.  It also showed that the Randalls mowed both sides of the driveway, and graded and plowed the driveway on occasion.  It was not necessary for the Randalls to be on Tract C every day.  The Randalls made their presence known through the planting and harvesting of crops.  In Ebenhoh v. Hodgman, 642 N.W.2d 104, 109-10 (Minn. App. 2002), this court held that cultivating crops on disputed land was a continuous use for adverse possession.  Although the Randalls were only physically present on the property approximately 15 times a year, their farming activities support the district court's determination of a continuous use for the statutory period.

            The exclusivity requirement is met if the disseizor takes “possession of the land as if it were his own with the intention of using it to the exclusion of others.”  Wheeler v. Newman, 394 N.W.2d 620, 623 (Minn. App. 1986) (citing Thomas v. Mrkonich, 247  Minn. 481, 484, 78 N.W.2d 386, 388 (1956)).  Use of a disputed parcel that is not under a claim of title does not defeat a claim of exclusive use.  Ehle, 293 Minn. at 191, 197 N.W.2d at 462. 

There was testimony by Jean Wellner that she thought Tract C was someone else's land.  Further, there was testimony that Fred Wellner believed that Tract C belonged to the Randalls.  There was also testimony that Fred Wellner asked the Randalls if he could move the fence between their properties. This testimony supports Fred Wellner's belief that Tract C was not part of his property.  The district court's finding that the Randalls' use was exclusive was supported by the evidence.