This opinion will be unpublished and

may not be cited except as provided by

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






Helen B. Jennen,





The County of Aitkin,



Filed May 20, 2003

Klaphake, Judge


Aitkin County District Court

File No. C602189


Gregory P. Grajczyk, Boos, Grajczyk & Larson, LLP, 301 South Main Street, P.O. Box 68, Milbank, SD  57252 (for appellant)


Thomas P. Carlson, 420 Summit Avenue, Suite 300, St. Paul, MN  55102 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Helen B. Jennen challenges the district court’s dismissal of her complaint against respondent County of Aitkin.  See Minn. R. Civ. P. 12.02(a) (dismissal for lack of subject matter jurisdiction), (e) (dismissal for failure to state a claim upon which relief can be granted).  After the county ordered Jennen to remove her dock from certain shoreline property, she brought this action for declaratory and injunctive relief, claiming that she either acquired title to the property by adverse possession or had the right to use and maintain the property because it abutted three lots owned by her.  The shoreline property was located within an unopened road and common that was dedicated to public use under a 1917 plat.  Because public property cannot be taken by adverse possession and because the county’s action in restricting Jennen’s use of the property was otherwise authorized by an ordinance and underlying statute, which she did not challenge, we affirm the district court’s dismissal of Jennen’s complaint.


            On appeal from the grant of a motion to dismiss under rule 12.02, this court accepts the factual allegations in the complaint as true, views them in the light most favorable to the plaintiff, and reviews the district court’s legal conclusions de novo.  See Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980). 

            The district court dismissed Jennen’s complaint for lack of subject matter jurisdiction due to her failure to appeal the violation notice to the county board of adjustment under Minn. Stat. § 394.27 (2002).  See Carlson v. Chermak, 639 N.W.2d 886, 889-90 (Minn. App. 2002) (holding that district court lacked subject matter jurisdiction over declaratory judgment action brought by landowner who had unsuccessfully sought variance but who failed to timely appeal board of adjustment’s denial of variance to district court).  Because Jennen was not seeking a variance and because the violation notice did not advise her of any appeal rights, we are reluctant to conclude that she should have first brought her complaint to the board of adjustment.  Because we agree that, ultimately, her complaint was properly dismissed for failure to state a claim, we will assume that subject matter jurisdiction existed.

            A court may dismiss a pleading for failure to state a claim “only if it appears to a certainty that no facts, which could be introduced consistent with the pleading, exist which would support granting the relief demanded.”  N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963) (footnote omitted).  Although a pleading need not allege every element of each cause of action, it must “give fair notice to the adverse party of the incident [or facts] giving rise to the suit with sufficient clarity to disclose the pleader’s theory [and] to permit the application of the doctrine of res judicata[.]”  Id. at 394, 122 N.W.2d at 29(citations omitted).

            Jennen brought this complaint after the county ordered her to remove her dock, which was located within shoreline dedicated to public use.  Count I alleges that the county has no plans to develop or construct a public road or street within the platted road, which remains unopened, and that her dock did not obstruct a public right-of-way.  Count II alleges that the county has no plans to develop or construct public improvements within the common, which also remains unopened, and that Jennen’s use of the common does not obstruct or interfere with public use of the common or any other public purpose.  Based on these counts, Jennen sought injunctive and declaratory relief to allow her to continue to use and maintain the road and common. 

            When the county ordered Jennen to remove her dock, it was acting pursuant to an ordinance that prohibits the placement of docks on or in the water adjacent to the platted road and the common.  See Public Lands Ordinance, Aitkin County, Minn. (adopted Apr. 4, 2000).  That ordinance was authorized by a special law passed by the Minnesota Legislature in 1988, which authorized the county to “regulate” by ordinance the use of lands adjacent to public waters and dedicated to the public, including the placement of docks.  1988 Minn. Laws ch. 658, § 1.  

            Jennen’s complaint does not challenge the validity or constitutionality of the ordinance or its underlying statutory authority; nor does her complaint suggest any basis for such a challenge.[1]  We therefore conclude that Counts I and II fail to state a claim upon which relief can be granted.  Cf. Elzie, 298 N.W.2d at 31-32 (reversing dismissal for failure to state a claim where complaint alleged that statutory procedures “did not provide for notice and an opportunity to be heard” and thus “raised serious due process questions”).

            Count III of Jennen’s complaint alleges that she is entitled to ownership through adverse possession by her use of the platted road and the common for over 15 years.  But a person cannot obtain title to public land by adverse possession, unless the municipality has abandoned the use of the land.  See Minn. Stat. §§ 541.01-02 (2002); Fischer v. City of Sauk Rapids, 325 N.W.2d 816, 819 (Minn. 1982); Village of Newport v. Taylor, 255 Minn. 299, 304, 30 N.W.2d 588, 592 (1948) (“when a street is dedicated by plat, the city may choose its own time to occupy, open and use the street, and until it does so, possession of the street by the abutting owner is not regarded as hostile” for purposes of adverse possession). 

            In limited circumstances, an estoppel may arise where a person has, in good faith and in the belief that the public’s use has been abandoned, made valuable and permanent improvements without objection.  City of Rochester v. N. Side Corp., 211 Minn. 276, 279, 1 N.W.2d 361, 363 (1941).  Here, Jennen alleges that since 1936, she or members of her family have used and possessed the platted road and common on a continuous basis by clearing brush, creating and maintaining a lawn, improving the shoreline, storing boats and docks, enjoying the land and shoreline for recreational purposes, and installing and maintaining multiple docks.  Because these are not the type of valuable and permanent improvements so as to support a finding of estoppel, we conclude that Jennen’s complaint fails to state a claim for adverse possession.

            The district court therefore did not err in dismissing Jennen’s complaint under Minn. R. Civ. P. 12.02.



[1]  Jennen’s complaint contains a lone allegation that states:  “At no time did defendant offer to plaintiff, nor plaintiff receive from defendant, compensation for defendant’s forced removal of plaintiff’s dock from within the Platted Road.”  We do not believe that this allegation is sufficient to construe Jennen’s complaint as raising a constitutional claim.