This opinion will be unpublished and

may not be cited except as provided by

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






Ronald Morris, et al.,


Dan Smith, et al.,


Filed December 14, 2004


Peterson, Judge


Becker County District Court

File No. C4990696


Lynn J. Hummel, Hummel Law Firm, P.A., P.O. Box 1409, Detroit Lakes, MN  56502 (for respondents)


Zenas Baer, Zenas Baer and Associates, P.O. Box 249, Hawley, MN  56549 (for appellants)


            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from a judgment entered following a remand by this court in a case asserting adverse-possession and practical-location-of-boundary claims, appellants contend that (1) the district court failed to follow this court’s instructions on remand and instead announced that the outcome of the remand hearing would be in favor of the plaintiffs regardless of what evidence was presented and (2) the court erred in determining the boundary line based only on a survey description that described the locations of traffic cones placed by respondent without reference to any historic markers.  We affirm.


            Appellants Danny and Vicki Smith and respondents Ronald and Carole Morris are neighbors: the Smith’s property lies north of the Morris’s property.  The boundary between the properties is approximately 2,666 feet long.  The parties agree that a township road marks the west 1,347 feet of their boundary and that the driveway to the Smith property runs to the north at that point; they refer to this junction as the Y.  The road continues east of the Y for approximately 250 feet and then turns south, becoming the driveway to the Morris property.

            For at least 15 years, from before 1965 until after 1980, the parties’ boundary line east of the Y was marked by a fence.  The easternmost 570 feet of this fence is intact and is the undisputed boundary; the rest of the fence was removed in the early 1980s.  The fence ran parallel to the road for about 250 feet until the road turned south to the Morris property; the fence then jogged south for a short distance and then continued east for about 500 feet, where it joined the still-intact portion.  The Smiths used and maintained the land north of the fence; the Morrises used and maintained the land south of it.

            The Smiths had their property surveyed in 1997 and discovered that the Morris’s driveway was on 1.88 acres of the Smith’s land.  The parties were unable to resolve their boundary dispute, and the Morrises brought a quiet-title action, alleging a right to 2.25 acres of the Smith property.  Although the Morris driveway only occupied 1.88 acres of the Smith property, the Morrises sought additional land to accommodate the right-of-way for a possible driveway expansion.  The district court awarded the Morrises the 2.25-acre tract of land under the theories of adverse possession and practical location of a boundary.

The Smiths appealed.  This court reversed and remanded based on its conclusions that the evidence supported the district court’s determination that the Morrises had acquired some property by practical location of a boundary and adverse possession but that the evidence did not support the district court’s finding regarding the specific land acquired.  Morris v. Smith, 2002 WL 31654983 (Minn. App. Nov. 26, 2002).  This court explained:

The district court did not establish the accurate boundaries of [the property acquired by Morris]; instead, the court simply adopted the surveyor’s description of the property Morris wanted.  The surveyor testified that he made no attempt to establish or conform to the historical boundary when he described the property and that his description was the result of Morris’s “moving the boundary in the vicinity of their driveway farther to the north.”


            Moreover, both parties and all the witnesses agreed that the fence jogged south.  The district court found that the property line from the curve in Morris’s driveway to the existing fence was a straight line.  Morris concedes that this finding contradicts unrefuted testimony that the fence jogged.  He argues, however, that “[m]aking the line a straight line rather than putting in a meaningless jog makes sense.”  But claims of adverse possession and boundary line by practical location must be based on evidence of past use of the land, not on what “makes sense.”  There was no clear and convincing evidence that the 2.25 acres described by the surveyor was the land Morris acquired.


            Because the evidence does not support the district court’s finding that Morris acquired by adverse possession or practical location of a boundary line the 2.25-acre parcel of Smith’s land shown on the surveyor’s revised description, we reverse the judgment based on that finding and remand for the district court to amend the finding and issue a judgment based on the amended finding.


Morris, 2002 WL 331654983, at *2-*3.

            On remand, the district court conducted an evidentiary hearing and limited the evidence to the issue of the location of the historic fence line.  Two witnesses testified at the hearing on remand, surveyor Chris Heyer and Ronald Morris.

Heyer testified that he went to the Morris property in December 2002 and walked the old fenceline with the Morrises.  Heyer’s determination of the disputed boundary line was based on information provided by the Morrises.

            Ronald Morris testified that he had lived on the property, which he and Carole bought from his mother in 1965, all of his life and that the boundary between their property and the Smith property had been marked by a fence from before the time his parents bought the property until the fence was removed in the early 1980s.  Before Heyer came to survey the property in December 2002, Ronald Morris marked the area of the disputed fenceline with orange traffic cones:

            Q.        How did you mark it?


            A.        Well, I went by that pole where it used to be and just south of the pole, I knew right in that vicinity where.


            . . . .


            Q.        So are we talking about the portion of the fence 


            A.        From the Y --


            Q.        -- to the jog?


            A.        -- to the jog.


            Q.        Okay.  So the first cone you placed where the jog started, is that correct?


            A.        Yep, right at the very east end of where it jogged six foot south.


            Q.        Okay.  You placed a cone there?


            A.        Right.


            Q.        Where did you place the next cone?


            A.        Well, like I say, we placed first one there.  We went six foot this way south.


            Q.        Okay.


            A.        But there was also a railroad tie going west six foot here too.


            Q.        Okay.  And you placed those three cones then where the original railroad ties had been?


            A.        Right.  Right.  Okay, could be six inches off or a foot.  I can’t set here under oath and say it’s exactly in the spot.  No way I’m going to say that.


Ronald Morris testified that exhibit 1A, a survey map prepared by Heyer, depicted the historic fence line.  Ronald Morris specifically denied placing the cones along the northern boundary of the 2.25-acre tract initially awarded to him by the district court:

            Q.        And you knew that the Court of Appeals made a specific point about everybody agreed there is a jog, and so you needed to put a jog in that fence, right?


            A.        Well that’s what they tell us we got to do.


            Q.        That’s what you did when you went out there and put the cones up, right?


            A.        That’s what they said we have to do.  That’s what we’re setting here for.  That’s the missing link that’s got to be put back in there.


            . . . .


            Q.        Did you just take the 33 feet north of the center line as the west, basically the line?


            A.        33 feet?


            Q.        Yes?


            A.        Wasn’t 33 feet.  Wasn’t 33 feet now, because the Court of Appeals said we put the fence back where it was.  If we did, then I’d be in here lying to you.


            Q.        Do you know what Roy Smith [surveyor] used as the location of the north boundary line of what you’re claiming is this historic fence, as it intersects the Smith driveway?


            A.        We went by that pole.  That was away from that pole a good 10, 12 feet.


            Q.        Okay.  So you took the power pole as a reference point, and said it’s 10 or 12 feet to the south of that?


            A.        That’s what it was.


            Q.        Is that what you told Mr. Smith [surveyor]?


            A.        Well, we went down to the curve of the cones there, and he looks up, and he says well it’s about 12 feet off the power line.  I said I don’t know if it’s 20 feet off the power line.  Got nothing to do with it.  Here’s where it was.  Here.  And he is the one who come up with the reading then.


            Q.        What I’m asking you, Mr. Morris, is you went out there and told Chris Heyer on the Smith driveway, where you thought the historic fence started at least from the Smith driveway to the east, correct?


            A.        Yep, where I know it started.  Had to have started.


            Applying Heyer’s determination of the disputed boundary line, the district court determined that the Morrises acquired a 2.31-acre tract of land under the doctrines of adverse possession and/or practical location of a boundary.  This appeal after remand followed.



            Appellants argue that the record shows cause to remove the district court judge for bias.  The decision whether to remove a judge for bias lies within the district court’s discretion.  Nachtsheim v. Wartnick, 411 N.W.2d 882, 891 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).  Minn. R. Civ. P. 63.03 provides that a judge may not be removed “except upon an affirmative showing of prejudice on the part of the judge.”  A showing of prejudice can be based on “pervasive bias,” which occurs when the bias stems from events at trial that are “so extreme as to display [a] clear inability to render fair judgment.”  Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct. 1147, 1155 (1994).

            The Smiths’ judicial-bias claim is based on the following statement by the district court during its introductory remarks at the remand hearing:

But remember that my decision today will be consistent . . . with my previous findings, to the extent that that is consistent with the Court of Appeals decision.  That is to say it will still be a plaintiffs’ decision.  It always has been and always will be, at least unless it’s reversed by the Supreme Court.  But that is the way the Court of Appeals came down.


Earlier in its introductory remarks, the district court had stated:

Following [trial], I took the matter under advisement and rendered a decision. . . . 


            It was a plaintiffs’ decision.  And the Court made several findings, several pages of findings, as you all know, and found that the evidence was clear and convincing that the plaintiffs were entitled to some of the defendants’ land, by way of adverse possession and/or practical location.  And specifically, that it was clear and convincing that the particular land was a 2.25 acre tract of land.  Obviously, the defendants did not agree with that and an appeal ensued.


            The Court of Appeals entered its decision sometime later . . . .  And that too was a plaintiffs’ decision.  Court of Appeals ruled that the plaintiffs, by reason of adverse possession and/or practical location had acquired some of Smiths’ land.


            But they reversed on the specific findings that they did not agree that it is evidence was clear and convincing as to which land the specific tract was – that is to say, the 2.25 acres, and remanded, as you’re all aware, that specific finding.


            The Smiths also cite the following amended finding of fact as evidence of bias by the district court:

            At the hearing, the Court reiterated that its Findings of Fact, Conclusions of Law, Order for Judgment, and Judgment dated August 9, 2001, was a Plaintiffs’ decision and that the Court of Appeals decision was also being interpreted as being a Plaintiffs’ decision.  The Court further stated that any upcoming Amended Findings of Fact, Conclusions of Law, Order for Judgment, and Judgment would also be a Plaintiffs’ decision consistent with the Court of Appeals ruling.


The Smiths’ bias argument takes the district court’s statements and finding out of context.  Although the judgment was reversed in the first appeal, the reversal was based entirely on this court’s conclusion that the evidence did not support the finding regarding the specific land awarded to the Morrises.  This court specifically stated that the “evidence supports the district court’s determination that Morris had acquired some of Smith’s land by practical location of a boundary as well as by adverse possession.”  Morris, 2002 WL 31654983, at *2.  Considered as a whole, the district court’s comments and finding do not suggest any judicial bias but rather show that it correctly interpreted this court’s decision in the first appeal.  Because the Smiths have made no showing of prejudice, they are not entitled to removal of the district court judge.


            Adverse possession must be proved by clear and convincing evidence.  Grubb v. State, 433 N.W.2d 915, 917 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).  We view the evidence in a light most favorable to the prevailing party.  See State, Dep’t of Pub. Welfare v. Thibert, 279 N.W.2d 53, 56 (Minn. 1979) (appellate court must view evidence and its reasonable inferences in light most favorable to prevailing party).  Once the district court has found adverse possession, challengers have the burden of showing that there is no evidence reasonably tending to sustain the district court’s findings.  Nash v. Mahan, 377 N.W.2d 56, 57-58 (Minn. App. 1985).  Adverse possession is established by proof of hostile, actual, open, continuous, and exclusive possession of land for 15 years or more.  Grubb, 433 N.W.2d at 917-18.

            The district court found:

            Based on the testimony of Ronald Morris, Carole Morris, and Defendant Danny Smith, Quentin Smith (Defendant Danny Smith’s father), had added a portion of fence in approximately the late 1950s, which fence ran northerly of the roadway, beginning easterly of Defendants’ driveway, and then connected to the existing fence approximately where the roadway curves toward Plaintiffs’ property.  The testimony at the April 16 through April 19, 2001, trial, from Carole Morris, Ronald Morris, Danny Smith and Lance Smith confirms that there had been a jog in the fence where it connected with the existing fence, and that there were three railroad ties at this jog.


            . . . .


            Ronald Morris testified that before the westerly and center portions of this fence were removed, the westerly portion of fence was located 35 to 40 feet northerly from the roadway.  The fence then jogged approximately six feet southerly and then continued easterly to the top of the hill, where a fence post still exists.  Because this fence had been removed, there were not remnants for Roy Smith or David Heyer to locate in order to draft the legal description.  Ronald Morris and Carole Morris submitted illustrative evidence showing the location of the westerly and center portions of the fence before those portions had been removed.  This location of the old fence was confirmed by Gill Gigstead, a lifelong neighbor and friend of both Plaintiffs and Defendants since 1947, and Joe Morris, Plaintiff Ronald Morris’ older brother, who had lived on Plaintiffs’ farm while this fence existed.  Dean Jenkins, son of the prior owner of Defendants’ property who had lived there from 1950 until 1956, also testified that the illustration correctly showed the approximate location of the center portion of fence.


            The Smiths argue that Ronald Morris’s recollection of the location of the jog to the south on the center section of fence and his placement of the cones to mark the jog for the surveyor were insufficient to establish the location of the fence.  While Ronald Morris admitted that his placement of the cones could have been off by six inches to one foot, the burden of proof does not require that the fence’s location be established with absolute certainty.  Rather, “the burden of clear and convincing evidence is less than that required by the ‘beyond a reasonable doubt’ standard in criminal matters and is met when the truth of the fact to be proven is ‘highly probable.’”  Rogers v. Moore, 603 N.W.2d 650, 657 (Minn. 1999) (quotation omitted).

Ronald Morris lived on the property all his life, and he recalled the location where the fence began and where it jogged to the south.  He used a power pole as a reference point when placing the cones to mark the jog.  His testimony regarding the fence’s location was confirmed by the testimony of other witnesses.  The evidence is sufficient to support a finding that it was highly probable that the fence existed at the location identified by Ronald Morris.  See id. at 657-58 (concluding that evidence was sufficient to establish by clear and convincing evidence continuous use of a driveway).

The Smiths argue that the evidence showing the existence of a second fence undercut the credibility of the evidence that Morris presented regarding the location of the boundary fenceline.  But the district court found that the evidence was insufficient to establish a second fence and that, even if a second fence had been established, the Smiths had conceded that the northern fence was the boundary fence.

            The Smiths also argue that property subject to a public road right-of-way cannot be subject to adverse possession.  But this court addressed that issue in its previous opinion, stating:

Smith also argues that the district court erred in finding that Morris acquired by adverse possession a public roadway.  This argument implies that the township road continues east beyond the Y where the Smith driveway intersects it.  But the district court specifically found that township supervisors testified that the township did not collect tax relief beyond that point, that “there [is] no evidence the general public uses the driveway,” that “the evidence is insufficient to show that a governmental agency continuously maintained the driveway,” and that “[t]he evidence is insufficient that the driveway in dispute is considered a township road.”


Morris, 2002 WL 31654983, at *2 n.2.  The Smiths cite Minn. Stat. § 541.01 (2002), which provides “that no occupant of a public way, levee, square, or other ground dedicated or appropriated to public use shall acquire, by reason of occupancy, any title thereto.”  Minn. Stat. § 541.01 prohibits the acquisition of an interest adverse to the public’s rights.  See, e.g., McCuen v. McCarvel, 263 N.W.2d 64, 66 (Minn. 1978).  But the Morrises were not attempting to acquire an interest adverse to the public’s interest.

            Clear and convincing evidence supports the district court’s finding regarding the 2.31-acre tract of land acquired by the Morrises under the doctrine of adverse possession.

            Because the Morrises acquired the land by adverse possession, we do not reach the issue of whether the boundary was established by practical location.