This opinion will be unpublished and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

A03-1990

 

 

Thomas R. Fife, et al.,

Appellants,

 

vs.

 

Betty Andersen-Nielsen,

Respondent.

 

 

Filed September 21, 2004

Affirmed as modified and remanded

Halbrooks, Judge

 

 

Crow Wing County District Court

File No. C9-01-1484

 

 

Richard A. Ohlsen, Richard A. Ohlsen, Ltd., 417 Laurel Street, P.O. Box 366, Brainerd, MN 56401 (for appellants)

 

Patricia A. Aanes, Thomas C. Pearson, Erickson, Pearson & Aanes, 319 South 6th Street, P.O. Box 525, Brainerd, MN 56401 (for respondent)

 

 

 

            Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellants challenge the district court’s determination that respondent adversely possessed a disputed tract of land, arguing that (1) the evidence was insufficient to support the district court’s findings establishing adverse possession; (2) the district court erred by dividing the disputed land into three sections for the purpose of its analysis; and (3) the district court erred in describing the land acquired by respondent through adverse possession.  We affirm as modified and remand for correction of the narrative description in Finding of Fact 20.

FACTS

            Appellants Thomas R. Fife, Cheryl Yursi, Timothy E. Dickerson, and Bonnie D. Dickerson, and respondent Betty Andersen-Nielsen own adjoining lakefront properties on the east shore of Bay Lake, Crow Wing County.  Appellants’ property, which lies to the immediate north of respondent’s, has been owned by members of appellants’ family since 1948. 

Respondent’s property has been owned by members of respondent’s family since 1958; respondent acquired title to the property in 1986 by transfer of title.  Respondent has been a seasonal occupant of her property for approximately 45 years.  Respondent’s property includes a principal residence and a guest cabin constructed by respondent’s predecessors-in-interest in the early 1960s.  The guest cabin is located approximately 55 feet east of the lakeshore.  In the area between the lake and the guest cabin, there is a shorefront woods, extending approximately six feet from the shoreline, that respondent has intentionally left in a natural state for privacy and pollution-control purposes.  There is also a well-maintained area that extends east from the eastern edge of the shorefront woods to the cabin, around the cabin’s northern side, and approximately 30 feet east of the cabin.  The area from the eastern edge of the well-maintained area to the eastern boundary of the property is unmaintained woods. 

When the guest cabin was constructed, it was believed by both parties to lie just south of the boundary separating respondent’s property from appellants’ and entirely within the confines of respondent’s property.  Respondent’s family has maintained the area around the guest cabin and has used the guest cabin each summer from the date of construction to the present. 

In 1993, appellants had their property surveyed and discovered that the southern boundary of their property was in fact located 17 feet south of its previously assumed location.  The boundary established by the 1993 survey bisects respondent’s guest cabin.  The disputed property in this matter is the property between the surveyed boundary and the boundary assumed to exist prior to 1993.  In 1997, respondent learned of the 1993 survey and commissioned another survey that indicated a boundary line consistent with the 1993 survey.  In the course of performing the 1997 survey, the surveyor discovered a length of iron pipe – of the type historically used by surveyors to mark boundary lines – pounded into the ground at the lakeshore end of the pre-1993 assumed boundary line.  Prior to 1997, respondent or her predecessors-in-interest kept up the well-maintained area and the cabin and used the cabin during the winter to store outdoor furniture. 

In June 2001, appellants brought an action requesting the district court to determine the proper southern boundary line of their property; to eject respondent from their property; and for damages and attorney fees.  Respondent filed a counterclaim, asserting title over the disputed property by adverse possession and asking that the boundary line between the two properties be determined by practical location. 

Following a three-day trial, the district court issued an order in which, “for reference purposes,” it divided the disputed property into three distinct areas:  the unmaintained shorefront-woods area west of the cabin; the well-maintained area on either side and north of the cabin; and the unmaintained woods area east of the cabin.  The court concluded that respondent had established title by adverse possession to the shorefront-woods area and the well-maintained area, but not to the unmaintained woods area.  The court concluded that the doctrine of practical location was not applicable.  The court gave a legal description of the property belonging to respondent by adverse possession.  Appellants now challenge the district court’s order. 

D E C I S I O N

To show adverse possession, the disseizor – the person making the claim for title against the legal owner – must show, by clear and convincing evidence, an actual, open, hostile, continuous, and exclusive possession for the requisite period of time, which in Minnesota is 15 years.  Ehle v. Prosser, 293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972); see also Minn. Stat. § 541.02 (2002).  The use required to show adverse possession depends in part on the nature of the property.  See Murphy v. Doyle, 37 Minn. 113, 117, 33 N.W. 220, 222 (1887).  Evidence tending to establish adverse possession 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.”  Vill. of Newport v. Taylor, 225 Minn. 299, 303, 30 N.W.2d 588, 591 (1948); see also Stanard v. Urban, 453 N.W.2d 733, 735 (Minn. App. 1990) (stating that “the evidence must . . . amount to clear and positive proof before title by adverse possession will be granted”), review denied (Minn. June 15, 1990).

Whether the adverse-possession elements have been established is a question of fact.  Wortman v. Siedow, 173 Minn. 145, 148, 216 N.W. 782, 783 (1927); see also Denman v. Gans, 607 N.W.2d 788, 793 (Minn. App. 2000) (stating that “the question of adverse possession is for the fact finder, whether it be the jury or the court”), review denied (Minn. June 27, 2000).  The district court’s findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01; see also Grubb v. State, 433 N.W.2d 915, 917 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).  But whether the findings of fact support a district court’s conclusions of law and judgment is a question of law, which we review de novo.  See Donovan v. Dixon, 261 Minn. 455, 460, 113 N.W.2d 432, 435 (1962) (noting that “it is for this court to determine whether the findings support the conclusions of law and the judgment”).  The burden rests on the disseizor to come forward with the essential facts establishing the elements of adverse possession.  Simpson v. Sheridan, 231 Minn. 118, 120, 42 N.W.2d 402, 403 (1950).

            “Open” possession means “visible from the surroundings, or visible to one seeking to exercise his rights.”  Hickerson v. Bender, 500 N.W.2d 169, 171 (Minn. App. 1993).  Although the law does not prescribe any specific manner by which a putative disseizor must possess a disputed tract of property, the possession must give “unequivocal notice to the true owner that some one is in possession in hostility to his title.”  Skala v. Lindbeck, 171 Minn. 410, 413, 214 N.W. 271, 272 (1927).  Here, respondent testified that she intentionally left the shorefront woods in a natural state in order to comply with both a Department of Natural Resources directive that the shoreline remain unaltered and a Bay Lake Property Owners Association policy that lakeshore property owners maintain a natural barrier – such as shrubs or trees – between maintained lawns and the lake in order to reduce the effluence of fertilizer pollutants into the lake.  Respondent also testified that she left the shorefront woods unmaintained to block the sight lines and sunlight from the lake. 

Based on this testimony, the district court found that respondent’s possession of the shorefront woods was actual and open.  We agree.  Appellants contend that respondent’s failure to maintain the shorefront woods precluded actual and open possession, citing to the holding in Nash v. Mahan, 377 N.W.2d 56, 58 (Minn. App. 1985), that “[o]ne who leaves land in a wild and natural state cannot acquire title by adverse possession.”  Although there is merit to appellants’ argument that a failure to maintain property is inconsistent with open and actual possession, we conclude that under the facts of this case, respondent’s affirmative and intentional act of leaving the shorefront woods unmaintained for the specific purposes of shielding the cabin from view and controlling pollution constituted actual possession.  We do not believe that an individual’s affirmative choice to leave land in its natural state per se precludes actual possession when, as here, the choice is motivated by a desire to further the land’s intended purpose and to comply with land-use policies.  In contrast, respondent’s failure to maintain the woods to the east of the cabin reflected no affirmative act on her part and was therefore inconsistent with actual possession, as the district court properly concluded.

            Appellants contend that respondent’s possession of the disputed property was not hostile because the parties enjoyed civil relations prior to the boundary dispute.  But hostility in the context of adverse possession does not imply any type of “personal animosity or physical overt acts against the record owner.”  Ehle, 293 Minn. at 190, 197 N.W.2d at 462.  Instead, hostility contemplates the disseizor’s entry upon and possession of the land as if it were her own and owning it with the intention of excluding all others.  Ebenhoh v. Hodgman, 642 N.W.2d 104, 110 (Minn. App. 2002).  “Hostility is flexibly determined by examining the character of the possession and the acts of ownership of the occupant.”  Id. at 110-11 (quotation omitted).  Respondent’s use of the disputed property was hostile as the term is used in the context of adverse possession. 

            Appellants also argue that both parties’ ignorance of the actual boundary line precludes adverse possession by depriving respondent of the intent required to take title by adverse possession.  But “[s]ubjective 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.”  Engquist v. Wirtjes, 243 Minn. 502, 504, 68 N.W.2d 412, 415 (1955).  Title by adverse possession may be obtained even when, as here, the land is occupied by mistake.  Ehle, 293 Minn. at 189, 197 N.W.2d at 462.  The district court properly found that respondent’s possession of the property was hostile.

Acquisition of title by adverse possession requires continuous use for a period of 15 years.  Ebenhoh, 642 N.W.2d at 109.  “The possession of successive occupants, if there is privity between them, may be [combined] to make adverse possession for the requisite period.”  Fredericksen v. Henke, 167 Minn. 356, 360, 209 N.W. 257, 259 (1926).  It is sufficient if “visible and notorious acts of ownership have been continuously exercised over the land for the time limited by the statute.”  Young v. Grieb, 95 Minn. 396, 397, 104 N.W. 131, 131 (1905). 

“A bright-line test for how much activity constitutes continuous possession of a property for adverse-possession purposes does not exist.  Instead, the rule of thumb used is that the disseizor must be using the property as his or her own, i.e., regularly and matched to the land’s intended use.”  Ganje v. Schuler, 659 N.W.2d 261, 268 (Minn. App. 2003).  Where the use of land is seasonal in character, the fact that it is not continuously occupied does not frustrate a finding of adverse possession so long as the use is exclusive.  See Marsh v. Carlson, 390 N.W.2d 897, 900 (Minn. App. 1986); see also Costello v. Edson, 44 Minn. 135, 137, 46 N.W. 299, 300 (1890) (stating that “constant occupancy of a house, erected by the disseizor, [is not] necessary where all the conditions show a continuance of his established dominion”).

Here, respondent and her predecessors-in-interest have owned the disputed property since 1958; respondent acquired title to the property in 1986 by transfer of title.  Respondent and her family have used the guest cabin seasonally since the early 1960s.  The district court correctly found that respondent’s possession of the disputed property was continuous.

A disseizor satisfies the exclusivity requirement of adverse possession by possessing “the land as if it were [her] own with the intention of using it to the exclusion of others.”  Ebenhoh, 642 N.W.2d at 108 (quotation omitted).  Respondent improved and maintained the disputed property and used it to lodge invited guests and store furniture during the winter, thereby establishing exclusive possession of the property.  We conclude that respondent presented clear and convincing evidence of adverse possession as to the shorefront-woods area and the well-maintained area around and including the guest cabin.

II.

            Appellants argue that the district court erred in dividing the disputed property into three sections for the purposes of analyzing respondent’s assertion of adverse possession because the division was “arbitrary.”  Appellants do not clarify or support this argument with record evidence or legal authority.  The district court did not err in dividing the property for the purpose of determining the merits of respondent’s assertion of adverse possession.

III.

Appellants argue that the district court’s legal description of the property acquired by respondent through adverse possession erroneously extends the property to the eastern edge of their property, rather than including only the areas designated by the district court as the unmaintained shorefront woods and the well-maintained area around the guest cabin.  Respondent acknowledges that the district court did not intend to include the unmaintained woods to the east of the guest cabin in the property acquired by her, and argues that in fact the court’s description does not include the unmaintained woods.

The district court’s legal description of the disputed property is “[t]hat part of the South 181.86 feet of Government Lot 1, Section 14, Township 45 North, Range 28 West, Crow Wing County, Minnesota, lying Westerly of the East 1500.00 feet of said Government Lot 1.”  At trial, the surveyor who performed the 1997 survey testified that the legal description provided by respondent in her counterclaim – the same description adopted by the district court in its order – does not designate a parcel extending to the eastern edge of appellants’ property.  The surveyor marked on the survey the area designated by the description.  A copy of the survey as marked by the surveyor at trial shows that the parcel awarded to respondent does not extend to the eastern edge of appellants’ property, but consists, as stated by the surveyor, of “a 15-foot strip” extending east from the shorefront to a point some 25 feet to the east of the guest cabin, but does not continue to the eastern edge of appellants’ property.  The district court provided an accurate legal description of the parcel adversely possessed by respondent.

We note, however, that the district court’s narrative description of the disputed property in its Finding of Fact 20 inverts the relative westerly and easterly locations of the property’s three areas, thereby giving the impression that the disputed property extends west from the shoreline.  But it is clear from the various maps and surveys in the record that the parties’ properties, which lie on the east shore of Bay Lake, extend east from the shoreline, as does the disputed tract.  We therefore remand the district court’s order with instructions to amend that erroneous finding to reflect the corrections emphasized in the following description:

20.       The disputed property can be divided into three distinct areas for reference purposes.  These areas can be described as the “shorefront woods,” the “well maintained,” and the “unmaintained woods” areas.  The shorefront woods area extends from the shoreline of Bay Lake easterly for four to eight feet.  The well maintained area extends easterly from the eastern edge of the shorefront woods area to the unmaintained woods area.  The well maintained area includes the area around the north end of the guest cabin.  The western edge of the unmaintained woods area starts approximately twenty to thirty feet east of the guest cabin.  The unmaintained woods area extends easterly from the eastern edge of the well maintained area to the east boundary of [appellants’] property.

 

            Affirmed as modified and remanded.



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.