This opinion will be unpublished and

may not be cited except as provided by

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






Thomas F. O'Brien,


Larry J. Card, et al.,


Filed March 11, 2003

Affirmed; motion granted

Minge, Judge


Le Sueur County District Court

File No. C300704



David E. Essling, Essling, Ltd., 1217 West Seventh Street, St. Paul, MN 55102 (for appellant)


William G. Peterson, Peterson Law Office, P.A., 3601 Minnesota Drive, Suite 800, Bloomington, MN 55435 (for respondent)


            Considered and decided by Minge, Presiding Judge, Lansing, Judge, and Shumaker, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge

This is an appeal from a district court judgment that respondents did not trespass on appellant’s land.  Appellant argues that the evidence does not support the judgment.  We affirm. 


Appellant Thomas O’Brien owns a 132-acre tract of land, which he claims contains three basins of water that comprise Mud Lake.  William Stangler and respondent Mark Pettis own separate tracts of land, which adjoin O’Brien’s land and Mud Lake.  Larry Card, Thomas Card, and James Card are the respondents accused of trespassing on O’Brien’s property.  Although the Cards do not own any land adjoining Mud Lake, they have permission from Stangler and Pettis to enter their respective properties to hunt.  Pettis and the Cards claim that Mud Lake is one basin of water, and that as a riparian owner and invitees they are entitled to access the entire basin.  O’Brien claims he acquired any riparian access rights that Stangler had to Mud Lake in an exchange of quitclaim deeds with Stangler. 

The Cards concede that they hunted on portions of Mud Lake that are within the boundaries of O’Brien’s property.   They assert, however, that Mud Lake is public water and that they traveled on the Stangler and Pettis properties to the shore of the lake and used a boat to hunt.  O’Brien and his witnesses claimed that during all relevant times the water level of Mud Lake has been so low that there is no access to the water from either the Stangler or Pettis property without trespassing on the O’Brien land, and that the route the Cards apparently took necessitated digging a channel and using a county ditch that traversed the O’Brien land.

Although numerous witnesses supported O’Brien’s position, including several experts, there was conflicting testimony regarding the level of and access to the waters of Mud Lake.  The sheriff’s staff described a man-made channel leading from Pettis’ property to O’Brien’s property, though no one knew who dug the channel. 

Since 1997, O’Brien has complained to the Le Sueur County Sheriff’s Department several times that the Cards were entering his property to hunt on the waters of Mud Lake.  Although one civil trespass citation was issued, none of the Cards was ever convicted of trespass.  In November 2000, O’Brien sued the Cards, alleging common law and statutory trespass. 

The district court concluded that O’Brien did not prove that the Cards trespassed and ordered entry of judgment in favor of the Cards.  The court found that (1) Mud Lake is one water basin; (2) that Pettis’ and Stangler’s properties border Mud Lake; (3) that there is riparian access from these properties to the lake; (4) that Stangler did not lose his riparian rights to Mud Lake by the exchange of deeds; and (5) that as the holders of riparian rights Pettis, Stangler, and the Cards, as their invitees, have the right to use the surface waters of Mud Lake, even those parts within the boundaries of O’Brien’s land. 

O’Brien claims that as a result of the quitclaim deeds Stangler had no riparian rights, that the Cards used a county ditch to gain access to Mud Lake, and that the district court’s determination that the Cards did not trespass was clearly erroneous.  We affirm.




The first issue we address is whether the district court clearly erred by finding that O’Brien failed to prove trespass by a preponderance of the evidence. 

Common law trespass requires proof of the two essential elements: “a rightful possession in plaintiff and unlawful entry upon such possession by the defendant.”  Citizens for a Safe Grant v. Lone Oak Sportsmen’s Club, Inc., 624 N.W.2d 796, 805 (Minn. App. 2001) (quoting Special Force Ministries v. WCCO Television, 584 N.W.2d 789, 792-93 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998)). 

In response to the trespass claim, the Cards alleged the existence of riparian rights and claimed that these rights constitute an affirmative defense in this case.  They asserted that they were invitees of Pettis and Stangler, who, they claim, hold riparian rights to Mud Lake.  Riparian rights include the right of a person who owns property abutting public waters and that owner’s invitees right to go upon and use the entire surface of the lake, regardless of whether the entire lake is on that person’s property.  See Johnson v. Seifert, 257 Minn. 159, 169, 100 N.W.2d 689, 697 (1960).  The Cards prevailed on the affirmative defense.  The district court found that Mud Lake was accessible from the Pettis and Stangler properties and that the Cards, as invitees of Pettis and Stangler, did not trespass.

To prevail on appeal, O’Brien must show two things: (1) the district court clearly erred in finding that the Cards have riparian access; and (2) the district court clearly erred in finding that O’Brien did not meet his burden of proof.   

This court does not set aside findings of fact unless those findings are clearly erroneous, and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  In applying Minn. R. Civ. P. 52.01, “we view the record in the light most favorable to the judgment of the district court.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (citation omitted).  This court does not reconcile conflicting evidence.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  Rather, “[i]f there is reasonable evidence to support the trial court’s findings of fact, a reviewing court” will not disturb those findings.  Id.  (citation omitted). 

The evidence conflicted on the water levels of Mud Lake at the time the Cards hunted on the lake.  The Cards testified and presented testimony of others that there is water access to Mud Lake from the Stangler and Pettis properties.  They presented testimony that the surface of Mud Lake was open water and that they were able to travel from one end of Mud Lake to the other by boat.  O’Brien presented exhibits and witnesses who testified that this was not possible. 

As we noted above, this court does not reconcile conflicting evidence.  Id.  The district court’s finding that the Cards have riparian access is supported by reasonable evidence and is not clearly erroneous.      

O’Brien claims separately that the Cards only had riparian access via a county ditch, which O’Brien argues cannot provide legal access.  Whether the Cards accessed the property via the county ditch is a factual determination.  The district court did not address this issue.  O’Brien does not establish that this issue is pivotal to the case.  In addition, the record indicates there were other ways to reach the water on O’Brien’s property.  As an error correcting court, we do not review the record to make findings.  See Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) (finding that it is not within the province of appellate courts to determine fact issues on appeal).  We therefore decline to address O’Brien’s legal argument regarding whether a ditch provides legal access.   

Because we conclude the district court did not clearly err by finding that the Cards had riparian access, we affirm the district court’s finding that O’Brien did not meet his burden of showing trespass.

We note that statutory trespass under Minn. Stat. § 97B.001 (2002) was raised in this proceeding.  That statute allows a claim of an owner of qualified agricultural land to post the land with signs prohibiting trespassing.  Minn. Stat. § 97B.001.  But the issue of statutory trespass and its elements, particularly the element requiring trespass on qualified agricultural land, were not fully discussed at trial.  Because the record does not adequately demonstrate that the statute applies to the land in this case, and because the issues surrounding interpretation of the statute were not raised in the district court, we decline to address them.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting that this court generally does not consider matters not argued and considered in the district court). 


The second issue we address is whether the district court erred by determining that Stangler did not give up his riparian rights to Mud Lake in the exchange of quitclaim deeds.  Generally, a court ascertains the meaning of a writing, such as a deed, by looking at the language of the deed.  Mareck v. Hoffman, 257 Minn. 222, 226-27, 100 N.W.2d 758, 761-62 (Minn. 1960).  But where the language of the deed is ambiguous, the court looks to the surrounding circumstances and the intent of the parties.  Id.  If the language is not ambiguous, the court does not examine extrinsic evidence to ascertain the intentions of the parties.  Id. at 227, 100 N.W.2d at 762.  The determination as to whether the language is ambiguous is a legal determination, the standard of review is de novo.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984). 

O’Brien argues that the language in the deeds is ambiguous.  Language is ambiguous if it is reasonably susceptible to more than one meaning.  Mollico v. Mollico, 628 N.W.2d 637, 641 (Minn. App. 2001).  In this case, the language in the deeds is not reasonably susceptible to more than one meaning.  The Stanglers conveyed everything west of the boundary line, including the riparian rights, to O’Brien and his wife.  O’Brien and his wife conveyed everything east of the same boundary line to the Stanglers.  In the deed from the O’Briens to the Stanglers, the language following the description of the boundary line reserves riparian rights that are west of the boundary line.  Because we conclude that the deeds are not ambiguous, we affirm the district court’s determination. 


Finally, we address O’Brien’s motion to strike part of the Cards’ appendix.  The Cards have included a color-coded map in their appendix.  O’Brien argues that the color-coding and labeling of access points are improper alterations of a trial exhibit.  O’Brien is essentially arguing that page A-1 is not part of the record on appeal and should accordingly be stricken.

The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01.  “The court will strike documents included in a party’s brief that are not part of the appellate record.”  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).

O’Brien is correct that the color-coded map was never filed with the district court and was never introduced as an exhibit.  As such, it is stricken from the Cards’ brief. 

            Affirmed; motion granted.