This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Ronald Morris, et al.,





Dan Smith, et al.,



Filed November 26, 2002

Reversed and remanded

Willis, Judge


Becker County District Court

File No. C4-99-696


James D. Sinclair, Hunt & Sinclair Law Firm, 910 Lincoln Avenue, P.O. Box 743, Detroit Lakes, MN 56502 (for respondents)


Zenas Baer, Zenas Baer and Associates, 331 Sixth Street, P.O. Box 249, Hawley, MN 56549 (for appellants)


            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N




In this boundary dispute, appellants challenge the district court’s finding that respondents acquired 2.25 acres of appellants’ land by adverse possession and by practical location of a boundary line.  Because clear and convincing evidence does not support that finding, we reverse and remand.



Appellants Danny and Vicki Smith (Smith) and  respondents Ronald and Carole Morris (Morris) are neighbors:  the Smith property lies north of the Morris property.  The boundary between the properties is approximately 2,666 feet long. The parties agree that a township road marks the west 1,347 feet of their boundary and that the driveway to the Smith property runs to the north at that point; they refer to this junction as the Y.   The road continues east of the Y for approximately 250 feet and then turns south, becoming the driveway to the Morris property. 

For at least 15 years, from before 1965 until after 1980, the parties’ boundary line east of the Y was marked by a fence.  The easternmost 570 feet of this fence is intact and is the undisputed boundary; the rest of the fence was removed in the early 1980s.  The fence ran parallel to the road for about 250 feet until the road turns south to the Morris property; the fence then jogged south for a short distance and then continued east for about 500 feet, where it joined the still-intact portion.  

              Smith used and maintained the land north of the fence; Morris used and maintained the land south of it.  Since at least 1965, the road east of the Y has been used only for access to the Morris property, and Morris has maintained it.  During the 1980s, Smith, with Morris’s permission, pastured cattle on land both parties thought belonged to Morris.  In 1991, Morris had a survey done for mortgage purposes and discovered that his driveway was on Smith’s land.  Morris did not notify Smith of this fact and continued using the driveway.

In 1997, Smith had a survey done and discovered that Morris’s driveway was on 1.88 acres of Smith’s land.  The parties’ first efforts to resolve their boundary dispute were amicable.  Morris offered to buy the 1.88 acres; Smith offered to transfer the land to Morris at no cost if Morris would pay the legal expenses.  Morris hired a surveyor to provide a description of the land to be transferred, and the surveyor prepared a description of the 1.88 acres.

Later, Morris told the surveyor that the driveway might be expanded at some time and asked what the normal right-of-way for a driveway would be.  The surveyor said it would be 33 feet in both directions from the center line of the roadway.   Without consulting Smith, Morris instructed the surveyor to expand the description of the land to be transferred to accommodate such a right-of-way. The surveyor complied and submitted a revised description of a 2.25-acre parcel.

At this point, the parties’ relationship deteriorated.  Morris brought a quiet-title action, alleging a right to 2.25 acres of the Smith property.  After a four-day trial, the district court adopted verbatim Morris’s proposed findings, including the surveyor’s revised description, and concluded that Morris had established a right to 2.25 acres of Smith’s property by adverse possession and the practical location of a boundary line. 

 D E C I S I O N


 [W]hen we review a court’s verbatim adoption of one party’s proposed findings, we will heed how the findings were prepared when we conduct a careful and searching review of the record.  We will devote special care not in the test that we apply to a particular finding of fact--individual findings will only be reversed if clearly erroneous--but in the volume of evidence we sift in judging the correctness of such findings. 


Dukes v. State, 621 N.W.2d 246, 258-59 (Minn. 2001) (quotation omitted).  After reviewing the record and sifting the evidence, we conclude that the district court’s finding that Morris had acquired 2.25 acres of Smith property is clearly erroneous. 

            Evidence supports the district court’s finding that Morris had established a right to some of Smith’s land through adverse possession and practical location of a boundary line.  To establish title by adverse possession, a disseisor must show an actual, open, hostile, continuous, and exclusive possession for 15 years. Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980).  Smith concedes that Morris was in actual and open possession of some of Smith’s land from at least 1965 until 1980.  Since neither Smith nor Morris knew that the land belonged to Smith, the possession was necessarily hostile rather than permissive.[1]  The possession was exclusive; no one except Morris used or cared for the Morris driveway and the rest of the land on the south side of the historic fence.  The possession was also continuous:  the fence was in place from at least 1965 until the early 1980s, and testimony from both parties and their neighbors showed that everyone considered the fence to be the property boundary.[2]  Therefore, Morris acquired some of Smith’s property by adverse possession.

Practical location of a boundary line may be established by acquiescence. Wojahn, 297 N.W.2dat 304.  “[T]he acquiescence required * * * is conduct or lack thereof from which assent to [a] fence as a boundary line may be reasonably inferred.” Id. at 305 (quotation omitted).  Here, the district court found that the parties themselves had treated the fence as the boundary from at least 1965 until 1980.  Testimony showed that, between 1965 and 1980, Morris or someone he employed had planted crops, grazed cattle, and planted trees south of the fence and that Smith never objected to Morris’s use or improvement of the land south of the fence. Thus, evidence supports the district court’s determination that Morris had acquired some of Smith’s land by practical location of a boundary as well as by adverse possession.

But the evidence does not support the district court’s finding regarding the specific land that Morris acquired. The district court did not establish the accurate boundaries of that property; instead, the court simply adopted the surveyor’s description of the property Morris wanted.  The surveyor testified that he made no attempt to establish or conform to the historical boundary when he described the property and that his description was the result of Morris’s “moving the boundary in the vicinity of their driveway farther to the north.”

 Moreover, both parties and all the witnesses agreed that the fence jogged south.[3]  The district court found that the property line from the curve in Morris’s driveway to the existing fence was a straight line.  Morris concedes that this finding contradicts unrefuted testimony that the fence jogged.  He argues, however, that “[m]aking the line a straight line rather than putting in a meaningless jog makes sense.”  But claims of adverse possession and boundary line by practical location must be based on evidence of past use of the land, not on what “makes sense.”  There was no clear and convincing evidence that the 2.25 acres described by the surveyor was the land Morris acquired.

            Because the evidence does not support the district court’s finding that Morris acquired by adverse possession or practical location of a boundary line the 2.25-acre parcel of Smith’s land shown on the surveyor’s revised description, we reverse the judgment based on that finding and remand for the district court to amend the finding and issue a judgment based on the amended finding. The district court may, in its discretion, re-open the record and take further evidence.

Reversed and remanded.


[1]Smith claims that Morris did not intend to take Smith’s land adversely, but that claim, even if true, is irrelevant.  Subjective intent to take land adversely is not essential; a disseisor need intend only to exclude all others.  Engquist v. Wirtjes, 243 Minn. 502, 504, 68 N.W.2d 412, 415 (1955).


[2] Smith also argues that the district court erred in finding that Morris acquired by adverse possession a public roadway. This argument implies that the township road continues east beyond the Y where the Smith driveway intersects it. But the district court specifically found that township supervisors testified that the township did not collect tax relief beyond that point, that “there [is] no evidence the general public uses the driveway,” that “the evidence is insufficient to show that a governmental agency continuously maintained the driveway,” and that “[t]he evidence is insufficient that the driveway in dispute is considered a township road.”


[3] Although estimates of the length of the jog varied from four to 15 feet, all witnesses agreed that the fence had a jog.