This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (2002).







Thomas C. Fogarty, et al.,


James Kuhl, et al.,

Earl Schmidt, et al.,



Filed December 3, 2002


Peterson, Judge



Carver County District Court

File No. C501486



Dennis Patrick Moriarty, Jaspers, Moriarty & Walburg, P.A., 206 Scott Street, Shakopee, MN  55379 (for respondents)



Andrew M. Morris, O’Neill, Traxler, Zard, Neisen & Morris, Ltd., Law Building, 222 East Main Street, PO Box 105, New Prague, MN  56071 (for appellants)



            Considered and decided by Toussaint, Presiding Judge, Peterson, 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 argue that the record lacks clear and convincing evidence supporting the district court’s findings on (1) the elements of adverse possession; and (2) the location of the disputed boundary.  We affirm.


            Respondents Thomas C. and Carol J. Fogarty are the fee owners of a parcel of property in Carver County consisting of about 180 acres.  In 1997, the Fogartys conveyed their property by a contract for deed to H and M Farms.  Appellants James and Marilynn Kuhl own property that is adjacent to the eastern boundary of the Fogarty property.  Earl and Eldora Schmidt also own property that is adjacent to the eastern boundary of the Fogarty property, but they are not parties to this appeal.  Appellants’ parcel is north of the Schmidts’ parcel.  The disputed property runs along the eastern edge of the Fogarty property; it is 57.83 feet wide at the northern end and 27.52 feet wide at the southern edge, with a total area of 2.77 acres.  Until 1997, a tree line and a line fence ran along the eastern edge of the disputed property.

            Thomas C. Fogarty purchased the Fogarty property from his parents, Thomas J. and Margaret Fogarty, who owned and farmed the property since at least the 1950’s.  Thomas C. Fogarty testified that his father established the tree line in 1956.  Thomas C. Fogarty, who worked on the farm from 1957 until he sold it in 1997, testified that the Fogartys always farmed the property up to the tree line.  When Thomas C. Fogarty sold the property to H and M Farms, he represented to its partnership members that the tree line marked the property’s eastern boundary.

            In 1987, Thomas C. Fogarty requested a reassessment of property taxes.  The county surveyed his property and determined that he owned 179.7 acres, instead of more than 190 acres, and reduced his property tax assessment accordingly.  It is undisputed that since 1987, respondents have not paid taxes on the disputed property.  But Thomas C. Fogarty testified that he understood that the county surveyor had measured his property up to the tree/fence line.

            Nathan Gerdes was employed by Thomas C. Fogarty and then by H and M Farms after it purchased the Fogarty property.  Gerdes testified that until this dispute began in 2000, he always plowed up to the tree line.  Although the tree line was removed in 1997, Gerdes’s testimony indicates that he was still able to identify its location.

            James Kuhl purchased his property in 1964.  He testified that a line fence marked the boundary between his property and the Fogarty property.  Kuhl testified that there were some trees along part of the line fence but that the main dividing line was the line fence.  Kuhl never farmed any property west of the tree/fence line because he did not think he owned it.

            In 1997, Kuhl spoke to William Halquist of H and M Farms about H and M Farms’s plans to remove the trees along the fence line.  Kuhl assumed that H and M Farms would remove the trees on the west side of the fence line, and he agreed to pay half the cost of removal if H and M Farms would remove all of the trees along the fence line.  H and M Farms hired a company to remove all of the trees and the line fence.  When the fence was removed, line posts were left in place marking the location of the fence line.  H and M Farms replaced the line posts with steel stakes.  Halquist testified that stakes were placed at the north and south ends of the Kuhl property.  Halquist also testified that until 2000, H and M Farms continued to farm up to the location of the former tree/fence line.

            In 2000, appellants had their property surveyed.  The survey showed that the actual boundary line between the Fogarty property and the Kuhl and Schmidt properties was west of the tree/fence line.

            Respondents Thomas C. and Carol J. Fogarty and H and M Farms brought this action to determine title to real estate against the Kuhls and the Schmidts.  Respondents alleged that the eastern boundary of their property had been determined by adverse possession and practical location.  Following a court trial, the district court determined that the boundary had been determined by adverse possession and practical location and entered judgment in favor of respondents.


On appeal from a judgment when there has been no motion for a new trial, this court’s review is limited to whether the evidence sustains the findings of fact and whether the findings sustain the conclusions of law and the judgment.  Hickerson v. Bender, 500 N.W.2d 169, 170 (Minn. App. 1993).


            Before title by adverse possession can be obtained, the disseizor must show, by clear and convincing evidence, an actual, open, hostile, continuous, and exclusive possession for the statutory 15-year period. The evidence must be strictly construed, without resort to any inference or presumption in favor of the disseizor, but with the indulgence of every presumption against him.


Lechner v. Adelman, 369 N.W.2d 331, 334 (Minn. App. 1985), review denied, (Minn. Aug. 29, 1985).  “One who leaves land in a wild and natural state cannot acquire title by adverse possession.”  Nash v. Mahan, 377 N.W.2d 56, 58 (Minn. App. 1985).

            Appellants argue that respondents did not satisfy the 15-year limitations period because their possession did not become adverse until 1987, when respondents became aware that they were encroaching on appellants’ property.  At that time, the county surveyed respondents’ property and determined that respondents owned 179.7 acres, instead of more than 190 acres.  Appellants contend that respondents’ possession did not become hostile until respondents became aware of the encroachment and failed to disclose it.  Case law does not support appellants’ argument that a party must have notice of the actual property line to acquire title to property by adverse possession.

“Where one of two adjoining owners takes and holds actual possession of land beyond the boundary of his own * * * tract, under a claim of title thereto as being a part of his own land, though under a mistake as to the location of the boundary line, such possession, for the purposes of the statute, is to be deemed adverse to the true owner and a disseizin.”


Kelley v. Green, 142 Minn. 82, 86, 170 N.W. 922, 923-24 (1919) (alteration in original) (quoting Seymour v. Carli, 31 Minn. 81, 81, 16 N. W. 495, 495 (1883)).

Subjective intent to take land adversely is not essential in this state and title by adverse possession may be obtained even though the disseizor does not intend to take land not belonging to him so long as he does intend to exclude all others.  It is sufficient that the land is occupied by mistake.


Ehle v. Prosser, 293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972) (citations omitted).

            The authorities relied on by appellants do not address the issue of notice or knowledge of the actual boundary line.  See Romans v. Nadler, 217 Minn. 174, 178, 14 N.W.2d 482, 485 (1944) (distinguishing between adverse possession and occasional and sporadic trespasses for temporary purposes); Lustmann v. Lustmann, 204 Minn. 228, 231, 283 N.W. 387, 388-89 (1939) (when use initially is permissive and acknowledges legal owner’s ownership, it becomes adverse only upon notice or an assertion of an adverse claim); see also Meyers v. Meyers, 368 N.W.2d 391, 394 (Minn. App. 1985) (when use is initially permissive, limitations period does not begin to run against the legal owner until an adverse holding is declared and notice of such change is brought to the knowledge of the owner).

            Appellants next argue that even if respondents’ possession was open and hostile before 1987, the limitations period began running anew in 1987 because respondents acknowledged appellants’ ownership of the disputed property when they asked to have the property-tax records corrected because they thought that they were paying taxes for property that they did not own.  But the testimony that appellants cite to support their claim that in 1987, respondents acknowledged appellants’ ownership of the disputed property does not support their claim.  Thomas C. Fogarty testified that when the tax records were changed, he understood that his property had been measured to the fence line, not to the legal boundary.  Fogarty’s testimony does not indicate that respondents learned in 1987 that they did not own the disputed property or that they acknowledged that appellants owned the disputed property.

Appellants contend that respondents failed to prove actual and exclusive possession of the disputed property because H and M Farms removed the tree line, the line fence, and all evidence showing what land respondents had possessed.  But the testimony of people involved with removing the trees and fence supports the district court’s finding that stakes or posts were left in the ground to mark where the fence had been.


            The district court has the authority to determine a disputed boundary by practical location.  Halverson v. Village of Deerwood, 322 N.W.2d 761, 768 (Minn. 1982).  The district court’s determination of a disputed boundary is a factual determination, which is accorded the same deference on appeal as any other factual determination.  Allred v. Reed, 362 N.W.2d 374, 376 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985).  But

[s]ince the effect of a practical location of a boundary is to divest one of property to which he has a conceded title * * *, the evidence establishing such a location must be clear, positive, and unequivocal.


In re Zahradka, 472 N.W.2d 153, 156 (Minn. App. 1991) (omission in original) (quoting Moore v. Henricksen, 282 Minn. 509, 516, 165 N.W.2d 209, 216 (1968)) , review denied (Minn. Aug. 29, 1991).

            The practical location of a boundary line can be established in one of three ways:

(1) The location relied upon must have been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations; (2) the line must have been expressly agreed upon between the parties claiming the land on both sides thereof and afterward acquiesced in; or (3) the parties whose rights are to be barred must have silently looked on, with knowledge of the true line, while the other party encroached upon it or subjected himself to expense in regard to the land which he would not have done had the line been in dispute.


Fishman v. Nielsen, 237 Minn. 1, 6, 53 N.W.2d 553, 556 (1952).

            The district court did not state what theory it relied on to support its finding of boundary by practical location, but the evidence in the record supports a finding of acquiescence.  Under the statute of limitations, the boundary location must be acquiesced in for 15 years.  Minn. Stat. § 541.02 (2000); see Allred, 362 N.W.2d at 376 (citing Minn. Stat. § 541.02 (1988)). When the practical location of a boundary is established by acquiescence in a fence line,

[t]he acquiescence required is not merely passive consent to the existence of a fence * * *, but rather is conduct or lack thereof from which assent to the fence * * * as a boundary line may be reasonably inferred.


Id. (quoting Engquist v. Wirtjes, 243 Minn. 502, 507-08, 68 N.W.2d 412, 417 (1955)).

            The evidence supports the district court’s finding that the parties and their predecessors in interest recognized the tree/fence line as the boundary line for 44 years, from 1956 until 2000.  Appellants argue that the evidence on that issue does not satisfy the clear and convincing standard of proof because the record also contains evidence that the location of the tree/fence line was not clearly marked following the removal of the trees and fence in 1997.  But, as we have already stated, people involved with removing the trees and fence testified that stakes or posts were left in the ground to mark where the fence had been.  If this testimony was credible, it was clear and convincing evidence of the practical location of the property boundary.  It is apparent that the district court found the testimony credible, and we defer to the district court’s credibility determination.  See Minn. R. Civ. P. 52.01 (“Findings of fact * * * shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”)