This opinion will be unpublished and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

A03-651

 

 

Gerald Feldmann, et al.,

Respondents,

 

vs.

 

Gary Bailey, et al.,

Appellants,

 

Tony Beckel, et al.,

Defendants.

 

 

Filed April 13, 2004

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge

 

 

Lake of the Woods County District Court

File No. C1-01-158

 

 

Robert A. Woodke, Bruce L. Meyer, Brouse, Woodke & Meyer, PLLP, 312 American Avenue Northwest, P.O. Box 1273, Bemidji, MN 56601 (for respondents)

 

Alan B. Fish, Alan B. Fish, P.A., 109 Second Street Northeast, Roseau, MN 56751 (for appellants)

 

 

 

            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            In this fence dispute, appellant argues that (1) the district court miscalculated the fence-related costs to which he was entitled, (2) respondents’ trespass damages were inappropriate and based on improperly admitted evidence, (3) the district court erred in determining that respondents were the “prevailing party” under Minn. Stat. § 549.02 (2002), and (4) the district court erred in concluding that appellant failed to establish the exclusivity element of adverse possession.  Because we conclude that the district court’s trespass damages award is proper, we affirm on that issue.  But because we agree that the district court incorrectly calculated the fence-related costs to which appellant was entitled, we reverse and remand for recalculation of appellant’s award.  We also remand the issue of whether respondents are the prevailing party for the purpose of awarding costs, an issue to be redetermined by the district court based on the recalculated amount.  Appellant’s other arguments are deemed to be waived and are not addressed.

FACTS

Respondents Gerald and Barbara Feldmann own property located in Lake of the Woods County, Minnesota, described for the purposes of this litigation as Sections 19 and 20.  Appellant Gary Bailey[1] owns approximately 500 acres of land adjacent to respondents’ property, where he operates a farmed cervidae operation that requires him to keep numerous elk on his property. 

In May 2000, appellant petitioned the Lake of the Woods County Commission for a fence viewing, requesting cost sharing from respondents to construct a fence on Section 19 to contain his elk herd.  Although appellant planned to construct a 96-inch woven-wire fence pursuant to Minn. Stat. § 17.452, subd. 10(a)(3) (2002), at a cost of $4.50 per linear foot, he only sought contribution for the cost of a five-strand barbed-wire fence at $1.50 per linear foot.  One month later, while his first petition was still pending, appellant submitted a second petition for a fence viewing of Section 20.  This time, appellant requested contribution toward the cost of a 96-inch woven-wire fence and submitted an estimate of material and labor costs at $4.50 per linear foot.  Appellant proposed that he install the fence, and upon completion, submit a bill to respondents for one-half of the total cost.  Respondents objected, stating they would prefer to install their portion of the fence as opposed to reimbursing appellant. 

On August 4, 2000, the viewers granted appellant’s first petition and ordered respondents to contribute $2,970 toward the cost of a five-strand barbed-wire fence for Section 19.  Shortly after appellant began construction, respondents received a cease-and-desist order from the Minnesota Department of Natural Resources, requiring them to discontinue any draining or filling activities on the wetlands located on Section 19.  Respondents also received a similar order pertaining to Section 20.  Nonetheless, on September 6, 2000, the viewers granted appellant’s second petition, ordering construction of a 96-inch woven-wire fence for Section 20 that was compliant with Minn. Stat. § 17.452, subd. 10(a)(3), and of similar character and quality as the Section 19 fence.  Respondents were ordered to install the southern portion of the fence, while appellant was responsible for the northern portion.  The order further stated:

The viewers are aware that cease and desist orders have been issued by the Minnesota Department of Natural Resources.  The orders prohibit any activity draining or filling designated wetland in [Section] 20, as well as other sections, of Potamo Township.  The viewers are cognizant of the fact that they cannot direct people to violate a law.  It is not their intent that either party should act in contravention of the cease and desist orders, if they in fact apply to the installation of a fence.  Therefore, the parties are urged to consult with the Department of Natural Resources to determine if installation of a fence would be in contravention of the cease and desist orders.

 

Respondents appealed the viewers’ August 4 and September 6 orders to this court.  See In re Petition of Bailey, 626 N.W.2d 190 (Minn. App. 2001).  We affirmed concluding that (1) requiring contribution by respondents for construction of the fence was both constitutional and a valid exercise of the state’s police powers, (2) the commission’s order requiring contribution to the cost of building the fence was not improper, and (3) the commission did not improperly require respondents to build a 96-inch fence rather than a less expensive one.  Id. at 190. 

Respondents subsequently applied for a permit from Lake of the Woods Environmental Services to construct their portion of the Section 20 fence, but their application was denied due to the cease-and-desist orders.  Respondents then commenced installation of the fence in Section 20 in areas where doing so would not violate the orders.  But rather than using heavy treated wood beams like those used by appellant, respondents installed steel stakes that were inadequate for containing elk.  Because respondents failed to construct their portion of the fence on Section 20 in accordance with the viewers’ order, appellant completed the fence himself.  

In August 2001, respondents served appellant with a summons and complaint relating to appellant’s activities on their land.  Respondents sought (a) $1,145.77 for the loss of 1,020 newly-planted trees in July 2001, (b) $2,088 for deprivation of the use of the land, beginning in August 1999, (c) $4,742.85 for the unlawful cutting and carrying away of trees between February 1998 and July 5, 2001, and (d) “in excess of $50,000” to restore the wetlands that had been damaged.  Additionally, respondents requested treble damages pursuant to Minn. Stat. § 548.05 (2002) for all but the remediation damages. 

Appellant counterclaimed, asserting adverse possession, failure to erect a fence pursuant to Minn. Stat. § 344.07 (2002), failure to pay pursuant to Minn. Stat. § 344.13 (2002), and nuisance.  Appellant requested (a) a temporary order restraining all of respondents’ activities on the road located between the parties’ properties and a declaration that appellant was the owner of the road, (b) judgment against respondents in the amount of $2,970 as ordered by the fence viewers’ August 4 order, (c) money damages for failure to build the fence as ordered by the viewers’ September 6 order, as well as costs and attorney fees for bringing the action, and (d) an order requiring respondents to remove a beaver dam that obstructed the natural flow from appellant’s property, or in the alternative, an order allowing appellant onto respondents’ property to remove the dam. 

Following trial, the district court concluded that respondents were entitled to $22,755 in damages to restore their property, and $4,819.60 in damages for the jack pine stumpage removed by appellant from Section 20, for a total of $27,574.60, but were not entitled to treble damages.  The court found that appellant was entitled to $2,970 in damages for respondents’ share of the cost of constructing the Section 19 fence and $5,940 for constructing respondents’ portion of the Section 20 fence, for a total of $8,910.  The court then concluded that “[a]fter subtracting the amount for which [respondents] are liable to [appellant], [respondents] are entitled to a net money judgment . . . of $18,664.60.”  The court also ruled that appellant’s adverse-possession claim, based on the road he gated prior to respondents’ acquisition of the land in 1996, failed because respondents consistently used the road for hunting, walking and accessing their property and, therefore, appellant failed to meet the exclusivity requirement for adverse possession. 

Appellant moved for a new trial or, in the alternative, amended findings.  Appellant argued that (1) the court incorrectly calculated the damages he was entitled to for constructing respondents’ portion of the Section 20 fence, (2) the restoration estimate provided by respondents’ expert, Rex Block, was based on the entire property, not just respondents’ property, and therefore respondents’ restoration award was inequitable, and (3) because appellant had authorization to log jack pine on respondents’ property, the damage award was inappropriate.  Both parties moved for taxation of costs and disbursements, and respondents requested an order determining that they were the prevailing parties.  By order dated April 4, 2003, the court declared respondents the prevailing party and granted their motion for costs, with the exception of mediation fees and meals for two witnesses.  The court awarded a total of $22,023 to respondents and rejected appellant’s motion for amended findings.  This appeal follows.

D E C I S I O N

On appeal, we give great deference to the district court’s findings of fact and will not set them aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  If there is reasonable evidence to support the district court’s findings, this court will not disturb them.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  We review the district court’s determination of questions of law de novo.  Rice Lake Contracting Corp. v. Rust Env’t & Infrastructure, Inc., 549 N.W.2d 96, 98-99 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996).

I.

 

Appellant first argues that the district court erred in computing the amount he was entitled to from respondents for constructing their portion of the Section 20 fence.  The district court found that respondents’ cost-share contribution was $2,970 toward the fence in Section 19 and that the “reasonable value of the fence which was the responsibility of [respondents] in Section 20 but which was constructed by [appellant] is twice that sum or $5,940.”[2]  Appellant asserts that the court incorrectly calculated damages at $1.50 per linear foot, instead of $4.50 per linear foot, as determined by the viewers’ September 6 order.  Accordingly, appellant asserts that the district court should have granted his motion to amend this finding.

Respondents counter by arguing that (1) the viewers’ September 6 order required respondents to install a fence, not pay a cost-share contribution, and they did install portions of the fence in Section 20 where doing so would not violate the cease-and-desist orders, and (2) the district court could properly find the value of the fence to be $5,940 because appellant failed to comply with Minn. Stat. §§ 344.04 and .05 (2002). 

At the outset, we agree with appellant that the district court incorrectly used the viewers’ August 4 order as a basis for calculating the value of the Section 20 fence, rather than the September 6 order.  This was erroneous because the August 4 order related solely to appellant’s first petition, where he requested contribution toward the Section 19 fence at only $1.50 per linear foot, while in the September 6 order, the viewers specifically determined that the Section 20 fence would cost $4.50 per linear foot.  Nonetheless, when appellant pointed the district court to this error, the court justified the reduced award as follows:

[Appellant] alleges a mathematical error in [finding] number 16 . . . on the grounds that [his] award for constructing [respondents’] portion of the fence in Section 20 was not equivalent to twice the amount derived by multiplying the length of this fence in feet by $4.50.  However, given [1] the cease and desist order discouraging certain fence building activities over portions of Section 20, [2] the lack of conformity with Minnesota Statutes Sections 344.04 and 344.05 (1990) in that the fence viewers apparently were not notified and, ultimately, [respondents] were not provided sufficient notice prior to the rebuilding of the [respondents’] portion of the fence in Section 20, and [3] the Court’s discretion in this matter as a fact finder, the Court concludes that the award to [appellant] for constructing [respondents’] portion of the fence was fair and just.      

 

            We disagree.  First, we find no basis for the district court’s reliance on the cease-and-desist orders as justification for awarding appellant less than contemplated by the viewers’ September 6 order.  In its February 19 order, the district court never indicated that the cease-and-desist orders necessitated a reduced award or excused respondents from performance.  Instead, the court concluded that appellant was entitled to money damages for the “reasonable value of the fence which was the responsibility of [respondents] in Section 20 but which was constructed by [appellant].”  The district court even recognized that appellant was able to complete

the fencing which was the subject of both of the fence viewers orders without reimbursement from [respondents] . . . in the best practical location in the contemplation of the fence viewing orders to contain elk and achieve the purpose for which it is intended without violating further any State or Federal wetlands regulations or laws.

 

            As the district court recognized, the Section 20 fence could have been constructed in certain areas without violating the cease-and-desist orders.  But rather than constructing a fence that complied with Minn. Stat. § 344.02, subd. 1(e) (2002), as ordered by the viewers, respondents installed a fence that the court explicitly found was “inadequate for containing elk.”  Because respondents could have built the fence in portions of Section 20 without violating the cease-and-desist orders, but failed to do so, we conclude that it was improper for the district court to rely on the cease-and-desist orders as a basis for reducing appellant’s award. 

Second, we conclude that the district court’s reliance on Minn. Stat. §§ 344.04 and .05 is flawed.  The district court seems to state that appellant’s reduced award is justified because he failed to give notice to the viewers and to respondents prior to constructing the Section 20 fence himself.  Minn. Stat. § 344.03 (2002) provides, in part, that

[i]f all or a part of adjoining Minnesota land is improved and used, and one or both of the owners of the land desires the land to be partly or totally fenced, the land owners or occupants shall build and maintain a partition fence between their lands in equal shares.

 

Minn. Stat. § 344.04 then provides that

[i]f a person fails to build, repair, or rebuild a partition fence which the person is required to build or maintain, the affected party may complain to the fence viewers.  The fence viewers shall give notice to the parties and examine the fence or look into the need for a proposed fence.  If they determine that an existing fence is insufficient or a new fence is necessary, they shall notify the delinquent owner or occupant in writing to that effect and order the owner or occupant to build, repair, or rebuild the fence within a reasonable time.  If the delinquent fails to comply with the order, the complainant may build, repair, or rebuild the fence and obtain reimbursement pursuant to section 344.05.

 

Minn. Stat. § 344.05, which states that the repair costs are recoverable, applies only where a complainant builds a fence according to section 344.04. 

            But Minn. Stat. § 344.04 only requires that the parties receive sufficient notice of the fence viewing itself and of their obligation to construct a fence pursuant to the viewers’ order, not that the petitioner provide the viewers and the delinquent party with notice of a default prior to remedying the situation.  See Rice v. Kringler, 517 N.W.2d 606, 608 (Minn. App. 1994) (stating that section 344.04 requires “sufficient notice of the fence viewing”); Miles v. Althoff, 373 N.W.2d 655, 658-59 (Minn. App. 1985) (Nierengarten, J., concurring specially) (stating that the notice in section 344.04 “serves only the purpose of giving appellant a chance to view the fence with the fence viewers and the opportunity to persuade them that the fence is not in need of repair.  The more important notice is the second notice required under 344.04 requiring the viewers to notify a delinquent owner in writing that a fence is insufficient and directing him to build or repair the fence within a reasonable time”), review denied (Minn. Nov. 1, 1985).  Here, respondents received proper notice of both the fence viewing and their obligation to construct a fence, and thus the requirements in Minn. Stat. §§ 344.04-.05 have been met.

            Instead, the district court should have applied Minn. Stat. §§ 344.06 and .07 (2002).  Section 344.06 provides that

            [i]f a controversy arises concerning the rights in partition fences of the respective occupants or their obligation to maintain the fences, either party may apply to the fence viewers, who, after due notice to the parties, may assign to each a share in the fence and direct the time within which the fence must be erected or repaired.  The assignment may be filed for record with the county recorder after which it is binding upon the parties and upon all succeeding occupants of the lands. 

 

Because respondents received notice of the fence viewing and the viewers’ decision that they construct a fence on portions of Section 20, appellant complied with section 344.06.  Section 344.07 then provides that

            [i]f a party fails to erect or maintain the part of a fence assigned under section 344.06, the aggrieved party may erect and maintain the fence, and be entitled to double the cost of the construction and maintenance as ascertained and recovered in section 344.05 in the case of repairs.

 

As this language makes clear, there is no requirement in section 344.07 that notice be given to the defaulting party or the fence viewers prior to the aggrieved party’s building of the fence.  The statute simply provides that the aggrieved party may remedy the default and be entitled to double the cost of construction.  Id.  Consequently, the district court abused its discretion by concluding that appellant was entitled to reduced damages for failing to give proper notice. 

Consequently, we reverse the district court’s decision on this issue and remand for a proper calculation of appellant’s award for constructing respondents’ portion of the Section 20 fence.  On remand, the district court should calculate the award based on the viewers’ determination of $4.50 per linear foot for the Section 20 fence, not the $1.50 per linear foot contemplated for the Section 19 fence.  Furthermore, because respondents failed to comply with the viewers’ order with regard to the Section 20 fence, appellant is entitled to double the cost of construction of that fence pursuant to Minn. Stat. § 344.07.

II.

Appellant next argues that the district court abused its discretion by admitting Rex Block’s testimony and relying on it to support respondents’ restoration damages based on trespass.  The district court awarded respondents $22,755 in damages 

based upon the estimate provided by Rex Block, a contractor experienced in restoration work.  Block’s estimate provides for approximately 273 hours at $60.00/hour for the use of bulldozer ($16,380.00); 40 hours at $55.00/hour for use of a skid steer ($2,200); $3,500.00 for Four Wheeler-Drag-Seed-Grass Matting as well as 45 hours at $15.00/hour ($675.00) for the labor performed in planting the seeds [for a total of $22,755.00]. 

 

Appellant contends that it was improper for the district court to rely on Block’s testimony because it was largely based on Exhibit 34, a field report issued by an administrative agency.  According to appellant, Exhibit 34 should have been excluded either on foundational grounds or because the author was not available for cross-examination.  Appellant also asserts that Block’s testimony was insufficient to establish trespass damages.

We disagree.  Our review of the record indicates that appellant failed to object to the admissibility of Exhibit 34 or to Block’s testimony concerning the exhibit at trial.  During the direct testimony of Leslie Lemm, an employee of the Lake of the Woods Soil & Conservation District, respondents asked Lemm to identify Exhibits 31 through 58.  Lemm provided a detailed explanation of each exhibit, including Exhibit 34.  When respondents offered the exhibits into evidence, appellant briefly questioned the witness about Exhibit 43, an aerial photo of Section 20, and subsequently stated that “[t]here are no other foundational objections at this time.”  The court then received the exhibits into evidence without further objection from appellant. 

Furthermore, during Block’s direct examination, the following exchange took place:

Q.  Did you have occasion to prepare an assessment of what it was going to take you to do a restoration of th[e] wetland on the property belonging to [respondents] in Sections 19 and 20 of Potamo Township?

 

A.  Yes, sir.  According to the report that I was sent I did review that and made an estimat[e] on it, yes.

 

. . . .

 

Q.  (Continuing) Mr. Block, I’m going to show you what’s been previously admitted into evidence as Exhibit No. 34.  Do you recognize that as the report that you have been referring to?

 

A.  Yes. 

 

Q.  Okay.  And so the work that you performed is based upon the information contained in that report as it relates to the [respondents’] property?

 

A.  The work that I gave an estimate on, yes, is based on that.

 

Q.  Okay.  And, o[f] course, your actual visits to the property?

 

A.  Yes.

 

Q.  Now, so you prepared or you formed an estimate of the cost of doing the wetland restoration for the [respondents], is that correct?

 

. . . .

 

A.  I don’t have my bid in front of me, but . . . I figured a bid going by that report site by site and I presented it to [respondents]. . . . After having visited Dale – the head of the S.W.C.D. I believe it is – Soil Water Conservation District – I did ask him for his opinion on what it would take for restoration and what was going to be required for restoration and asked to give this price and he laid out for me what it would take and that’s what I presented my bid to them at, based on that.    

 

Not only does this testimony establish that Block did not rely solely on Exhibit 34 in reaching his conclusions, but the transcript makes clear that, once again, appellant failed to object. 

Appellant did object when respondents offered Exhibit 200, Block’s bid proposal, into evidence, stating:

            I’ll object on a foundational basis, Your Honor.  This doesn’t reflect the current status of the legal proceedings.  It doesn’t reflect the current status of the restoration and there was – as far as the requirements of what restoration was actually going to be performed, there hasn’t been any specificity of whether it affects [respondent].  I’d also object on a relevance basis as the order that is being asked . . . of Mr. Block to interpret pertains only to responsibilities of Mr. Bailey.  The [respondents] have never been implicated or ordered to do anything on this property and therefore an estimate is irrelevant.

 

This objection was overruled.  But while appellant’s objection at trial seems to mirror his argument on appeal, the objection related to Exhibit 200, not to Exhibit 34, as he now claims.  Appellant does not challenge the admissibility of Exhibit 200 on appeal. 

When a party fails to object to evidence at trial, that party has generally waived any objection.  Steiner v. Beaudry Oil & Serv., Inc., 545 N.W.2d 39, 44 (Minn. App. 1996), review denied (Minn. May 21, 1996); see also Minn. R. Evid. 103(a)(1) (requiring “a timely objection or motion to strike” to claim erroneous admission of evidence).  Appellate courts may properly take notice of an error despite a party’s failure to object, but only where the error is of fundamental law or a plain error affecting substantial rights.  Minn. R. Evid. 103(d).  Here, because there is no such error at issue and because appellant failed to object to the admissibility of Exhibit 34 or Block’s testimony at trial concerning the exhibit, we conclude that appellant has waived his objections and may not challenge this issue on appeal.

Furthermore, we reject appellant’s argument that Block’s testimony was insufficient to establish respondents’ trespass damages.  At trial, Block testified as follows: 

I figured the amount of dozer hours to be 273 hours at $60 per hour.  Skid steer, 40 hours at $55 per hour, there were places on this report that required seed bed preparation and seeding and I included that as well, an amount of $3500 and 45 hours of labor at $15 an hour.  It’s also on my bid proposal I put a footnote that there would be no top soil being brought to the site. 

 

Block also testified extensively about the work he did on respondents’ property and the factors he considered when preparing his bid proposal.  Furthermore, in its order rejecting appellant’s motion to amend, the district court recognized that

[i]n regards to the estimate for restoration by Rex Block, while [appellant] suggests it may have included portions of [appellant’s] property, the statement indicated that the estimate applied exclusively to [respondents’] property suggesting that the majority if not all of the property referred to in the statement belong to [respondents].  Furthermore, this Court’s recollection of the testimony is that Rex Block visited the property of [respondents] and gave his estimate as to [respondents’] property.  For this reason, along with the Court’s discretion in this matter as a fact finder, the Court concludes that the figure derived at for restoration of [respondents’] property was fair and just.

 

We agree and conclude that the record is sufficient to support the district court’s restoration damages award. 

III.

 

Appellant next argues that because he prevailed on his claims for reimbursement under Minn. Stat. ch. 344 (2002), it was error for the court to determine that respondents were the “prevailing party” and to deny his motion for costs.  While we agree with the district court’s determination of the prevailing party based on the damages initially awarded, in light of our decision to remand for recalculation of appellant’s award for constructing respondents’ portion of the Section 20 fence, we also remand for redetermination of the issue of which party is the “prevailing party” under Minn. Stat. § 549.04 (2002), based on the recalculation.  

Additionally, appellant argues that he is entitled to costs under Minn. Stat. § 344.13 because a civil action was necessary after respondents failed to contribute toward the Section 19 fence pursuant to the viewers’ order.  While Minn. Stat. § 344.13 “describes appropriate steps to be followed in the event a civil action is necessary to enforce the decision of the fence viewers,” Brom v. Kalmes, 304 Minn. 244, 247 n.5, 230 N.W.2d 69, 73 n.5 (1975), and appellant raised this issue in his counterclaim, the record indicates that the district court’s determination of costs was based solely on Minn. Stat. § 549.04; the district court never considered or determined whether Minn. Stat. § 344.13 applies to this case.  Moreover, appellant failed to raise this issue in his motion for a new trial or amended findings.  Consequently, the issue is not properly before us on appeal, and we decline to address it.  See In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997) (stating that issues not raised in a motion for a new trial or amended findings are waived on appeal). 

IV.

Finally, appellant argues that the district court erred in determining that he could not succeed in his adverse-possession claim.  Because appellant failed to raise this issue in his motion for a new trial or amended findings, we decline to address the issue for the first time on appeal.  See id. 

            Affirmed in part, reversed in part, and remanded.



[1] Although both Gary and Erica Bailey are appellants, the district court found that while Erica Bailey owns land adjacent to respondents’ land, the damage at issue is the responsibility of Gary Bailey.  Therefore, “appellant” is used to refer only to Gary Bailey.

[2] In conclusion 6, the district court states that this amount is $5,840.  The parties agree that this was a typographical error and that, as noted in finding 16, the district court intended this number to be $5,940 ($2,970 x 2 = $5,940).