This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-79

 

Terry Peterson,
Appellant,

vs.

City of Warba,
Respondent.

 

Filed December 2, 2003

Affirmed

Peterson, Judge

 

Itasca County District Court

File No. C802694

 

John P. Dimich, 16 Northeast Third Street, Grand Rapids, MN  55744 (for appellant)

 

Paul D. Reuvers, Jason M. Hiveley, Iverson Reuvers, LLC, 230 Townline Plaza, 8585 West 78th Street, Bloomington, MN  55438 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a declaratory judgment that a road located on appellant Terry Peterson’s property became a public road by both common-law and statutory dedication, appellant argues that (a) the record lacks sufficient evidence to support a determination that common-law or statutory dedication occurred; and (b) respondent City of Warba’s claim is barred by the Marketable Title Act.  We affirm.

FACTS

            In 2001, appellant purchased property in Warba.  Beck Road runs through the property.  Appellant learned that the city had never filed a road order establishing Beck Road as a public road.  Appellant upgraded the road at his own expense and erected a gate blocking off the entrance to the road.

The city demanded that appellant remove the gate and asserted that the city had maintained the road as a minimum-maintenance road[1] for more than six years and had posted a “minimum maintenance” road sign that appellant removed without the city’s permission.  Appellant admitted removing the sign but asserted that there was no minimum-maintenance sign posted when he purchased his property.

To establish his ownership of the road, appellant brought a declaratory-judgment action.  Appellant sought a declaration that the city’s actions to remove the gate were a trespass and that its acts were a condemnation without authority.  In its answer, the city admitted that it had not recorded a legal description for the road nor filed a road order.  Instead, the city asserted that the road had become a public road by both common-law and statutory dedication. 

            At trial, the jury heard testimony from several long-term Warba residents, including Kelly McCauley, who was the mayor of Warba for 18 years.  McCauley testified that the city regularly used the road to reach ponds that were part of the city’s sewer system.  McCauley also testified that the city minimally maintained the road by graveling and brushing the road as well as replacing culverts when necessary.  McCauley testified that the city first posted a minimum-maintenance sign on Beck Road approximately 12-15 years ago and that the sign occasionally had to be replaced due to vandalism.

            Archie Hall, a resident of Warba for 83 years who lives one mile from Beck Road, testified that he once farmed in the area where the road is located.  He testified that he drove farm machinery down the road in the 1940s and 1950s and that the road was considered a public road at that time.  Hall testified that the baler he drove down the road was 12 feet wide.  He also testified that before the 1940s, the road was maintained better and had ditches.

Lonnie Riendeau, a former Warba resident, testified that Beck Road was commonly used by the public and that “everybody and their brother around Warba . . . used it [to hunt or fish] . . . . We still do.”  He also testified that a minimum-maintenance sign was posted on Beck Road before he moved from Warba 12 years earlier.

            Jerome Carey, a part-time maintenance worker for Warba for more than 20 years, testified that he regularly maintained the road by clearing brush and hauling gravel to fill any large holes in the road.  Carey testified that “a lot of people” used the road for hunting, fishing, and trapping minnows.  He also testified that “every year I’d go in there in the spring, check out the road, and do what brushing had to be done, and after it got dried up enough I’d haul gravel in . . . . We done that every year for 20 some years . . . .  I maintained the road enough where it was passable for a four-wheel pickup easy.”

            Eugene Schultz, the retired owner of the construction company that upgraded Beck Road at appellant’s request, testified for appellant.  Schultz described the road as impassable when he examined it in the spring of the year but opined that the road could be navigated in a drought year or if the ground were frozen.  He testified that there was no gravel base on the road when he began construction and that he put in a culvert and raised the road approximately one to two feet so that it was above the water table.  He admitted that his knowledge of the road was limited to what he observed in 2001.

            Robert Henry, who was hired by appellant to clear the brush on the edges of the road before the upgrade began, testified that although he did not recall seeing any culvert as he cleared the road with his bulldozer, there was evidence of original construction of the road.  Specifically, Henry testified that there was evidence of ditches originating from the early part of the 1900s and estimated the width of the road to be 12 to 14 feet.

            By special verdict, the jury determined that Beck Road was a public road by both common-law and statutory dedication and that it was 1320 feet long and 14 feet wide. Appellant moved for a new trial and judgment notwithstanding the verdict (JNOV). Appellant invoked the protection of the Marketable Title Act (MTA) in his memorandum in support of his motions.[2]   

D E C I S I O N

We review the denial of a motion for JNOV de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  Where JNOV has been denied by the district court, the denial “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Id. (quotation omitted).  “Unless the evidence is practically conclusive against the verdict, this court will not set the verdict aside.”  Id. (quotations omitted).  “The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.”  Id.  Similarly, “[o]n appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.”  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

            Appellant argues that the evidence was insufficient to establish a common-law or statutory dedication of Beck Road.  Under common-law dedication, “a public road (and its width) is established from (1) a landowner’s intent, [either] express or implied[,] to have his land appropriated and devoted to a public use; and (2) the public’s acceptance of that use.”  Township of Villard v. Hoting, 442 N.W.2d 826, 828 (Minn. App. 1989).  The landowner’s intent may be implied from unequivocal acts; it need not be a conscious intent.  Sackett v. Storm, 480 N.W.2d 377, 380 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992).  Public acceptance may be shown by public use of the dedicated property “by a relatively small number of people.”  Id.  Even occasional use by members of the public, such as visitors, is a sufficient public use.  See Daugherty v. Sowers, 243 Minn. 572, 574-76, 68 N.W.2d 866, 868-69 (1955) (affirming district court’s finding that common-law dedication occurred).  Upon manifestation of intent to dedicate and upon the public’s acceptance, common-law dedication is irrevocable and immediately effective.  Hoting, 442 N.W.2d at 828.  Common-law dedication binds successors in interest.  Sackett, 480 N.W.2d at 380 (citing Daugherty, 243 Minn. at 575, 68 N.W.2d at 868-69). No public expenditure for improving or maintaining the roadway need be made for common-law dedication to be found.  Keiter v. Berge, 219 Minn. 374, 379, 18 N.W.2d 35, 38 (1945).  But, public acceptance may be inferred from public officers improving and maintaining the dedicated property.  Sackett, 480 N.W.2d at 381.

            The district court found that Archie Hall’s testimony “that Beck Road was a public road when he owned the property and that he used the road” was sufficient to allow the jury to conclude that Hall intended to have Beck Road appropriated and developed to a public use given that Hall acquiesced in the public use of the road when he owned the property.  Hall did not explicitly testify that he owned the land; he testified that he baled hay for the owners, “[a]nd then when they quit I took over the land and farmed it.”  It appears that the district court understood Hall’s reference to taking over the land to mean purchasing the property; but the phrase could also mean taking over use of the property without owning it.  Nonetheless, intent to dedicate may be inferred from an owner’s inaction in relation to the public use of the land.  See Flynn v. Beisel, 257 Minn. 531, 540-42, 68 N.W.2d 284, 291-92 (1960) (inferring intent to dedicate as a matter of law).

Long acquiescence in the use of property by the public may establish an intent to dedicate and an acceptance by the public . . . .  In Dickinson v. Ruble, 211 Minn. 373, 375, 1 N.W.2d 373, 374 [1941] we said:  “. . . From the fact that for more than 15 years prior to the time of plaintiff’s ownership the use had been ‘open,’ it may be inferred that the public had used the [road] in a manner that was manifest, obvious, observable, and unmistakable.  If the use was of this character for that length of time, it is reasonable to conclude either that it was known to the prior owner, . . . or if not, the owner was negligent in not knowing and cannot be relieved from its ignorance. . . . Under our decisions, only ‘long-continued, uninterrupted use by the public’ need be proved to establish the owner’s acquiescence from which the intention to dedicate is inferred.”

 

Allen v. Village of Savage, 261 Minn. 334, 340, 112 N.W.2d 807, 812 (Minn. 1961) (quotation omitted).  Testimony established that public use of Beck Road was obvious, observable, and unmistakable for decades before appellant purchased the property.  McCauley testified that on that property . . . “there [were] never [any] no trespassing signs,” and Carey testified “a lot of people used [the road], hunting and fishing, trapping minnows.”  Even if Hall did not own the land, this evidence demonstrates that prior owners either intended to dedicate the road or were negligent in not taking action to protect their property.  Allen, 261 Minn. at 340, 112 N.W.2d at 812.  In either event, intent may be inferred.  Id.

When the evidence is viewed in the light most favorable to the verdict, both intent to dedicate Beck Road to the public and public acceptance of that use were established, and the evidence reasonably supports the jury’s verdict that Beck Road is a public road by way of common-law dedication.  In light of this conclusion, we need not address appellant’s argument that the evidence was insufficient to support a verdict that Beck Road became a public road by statutory dedication.

            Appellant also argues that the MTA bars the city’s claim.  The district court concluded that because appellant asserted this defense for the first time in his posttrial motions, he waived the protections of the act.  We agree.

“The MTA is essentially a statute of limitations which restricts a party from asserting an unregistered interest in another person’s title to property.” Northfork Township v. Joffer, 353 N.W.2d 216, 218 (Minn. App. 1984); see Foster v. Bergstrom, 515 N.W.2d 581, 586 (Minn. App. 1994) (stating “Act may be invoked as a defense when a party claims title to property and another party asserts a hostile claim to the same property”).  A statute of limitations must be affirmatively pleaded as a defense.  Minn. R. Civ. P. 8.03 (requiring party to affirmatively plead statute of limitations).  “If a defendant fails to plead the statute of limitations as an affirmative defense, the defense is considered waived.”  Christenson v. Argonaut Ins. Cos., 380 N.W.2d 515, 519 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986).  “A reviewing court will generally not consider affirmative defenses not raised in [district] court pleadings and not considered by the [district] court.”  Septran, Inc. v. Indep. Sch. Dist. No. 271, 555 N.W.2d 915, 919 (Minn. App. 1996) (citing Minnesota-Iowa Television Co. v. Watonwan T.V. Improvement Ass’n, 294 N.W.2d 297, 305 (Minn. 1980), review denied (Minn. Feb. 27, 1997).

The record supports the district court’s finding that appellant did not raise the MTA as an affirmative defense in his pleadings or in any pretrial motions, and the issue was not litigated in the trial court. 

Affirmed.



[1] At trial, the city stipulated that it had not officially designated Beck Road a minimum-maintenance road pursuant to Minn. Stat. § 160.095, subd. 1 (2002).  A minimum-maintenance road is one that is used “occasionally or intermittently” for public travel.  Id.  After designating a road a minimum-maintenance road, road authorities are required to place minimum-maintenance signs to warn the public that travel on the road is at the public’s own risk.  Id.

[2] Appellant also raised the issue of unjust enrichment. However, because appellant failed to plead unjust enrichment, the district court concluded that he was not entitled to the improvement costs of the road.  Appellant does not challenge this part of the court’s order on appeal.