This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Richard G. Houdek, et al.,





John H. Guyse, et al.,



Filed February 22, 2005


Toussaint, Chief Judge


Olmsted County District Court

File No. CX-02-1834


James Christopher Ohly, 1850 North Broadway, Rochester, MN 55906 (for respondent)


Robert George Benner, Dunlap & Seeger, PA, 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903-0549 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Schumacher, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

            Respondents brought a claim in district court to establish their legal right through adverse possession to the south 23 feet of lot 46 of Kurth’s Subdivision in Olmsted County, Minnesota.  After a bench trial the district court held that respondents satisfied the requisite elements of adverse possession.  Appellant maintains that respondents failed to establish by clear and convincing evidence that respondents were entitled to the disputed land.  Because the record supports the district court’s decision, we affirm.


Appellants John and Sandra Guyse own lots 46 and 47 of Kurth’s Subdivision in Olmsted County, Minnesota, which includes 166 feet of lake frontage on Lake Zumbro.  Additionally, appellants own a portion of a vacated township road lying east of lots 46 and 47.  Respondents Richard Houdek, et al., own lot 45, which lies due south of lot 46.  Both parties maintain their properties as seasonal residences, used primarily during the spring, summer, and fall.

            Whether the elements of adverse possession 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) (“[T]he question of adverse possession is for the fact finder, whether it be the jury or the court.”), review denied (Minn. June 27, 2000).  “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 trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  “In applying this rule, we view the record in the light most favorable to the judgment of the district court.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  “If there is reasonable evidence to support the district court’s findings, we will not disturb them.”  Id.  But whether the findings of fact support a district court’s conclusions of law and judgment is itself 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”).


To establish adverse possession, the disseisor must show, by clear and convincing evidence, the property was used in an actual, open, continuous, exclusive, and hostile manner for at least 15 years.  See Minn. Stat. § 541.02 (2002) (stating that an adverse-possession claim cannot be made until after 15 years of possession); Rogers, 603 N.W.2d at 657 (stating the elements necessary for adverse possession); Ehle v. Prosser, 293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972) (establishing clear-and-convincing-evidence standard).  But this burden is considerable because “every presumption [is] against [the disseisor].”  Vill. of Newport v. Taylor, 225 Minn. 299, 303, 30 N.W.2d 588, 591 (1948).

            While the law does not provide specific examples qualifying as actual possession, the disseisor’s actions 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).   “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). 

Here, the district court found that respondents have, since 1956, “occupied and possessed the Disputed Area and treated it like the rest of their yard.”  The district court found respondents used the disputed area for various recreational purposes.  Upon a review of the record, we conclude the record supports the district court’s findings as to actual and open possession and are not clearly erroneous.

Acquisition of title by adverse possession also requires continuous use for a period of 15 years.  Minn. Stat. § 541.02; Ebenhoh v. Hodgman, 642 N.W.2d 104, 109 (Minn. App. 2002).  “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).  “[I]t 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).

But “[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 disseisor 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) (citing Wisconsin case for use required of seasonal property); 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 disseisor, [is not] necessary where all the conditions show a continuance of his established dominion”).

Here, the record indicates that respondents and their predecessors in interest have continuously used and maintained the disputed property since 1956.  Throughout this time respondents and their predecessors in interest treated the disputed area the same as other portions of their seasonal property.  Because there is no evidence that respondents treated the disputed area any differently from their own property the district court correctly found that respondents’ possession of the disputed property was continuous.

The exclusivity requirement of adverse possession is satisfied if the disseisor possesses “the land as if it were his own with the intention of using it to the exclusion of others.”  Ebenhoh, 642 N.W.2d at 108 (quotation omitted).  Appellants argue that because respondents did not specifically exclude appellants from the disputed land, respondents’ adverse possession claim fails.  But “Minnesota has never required the affirmative denial of the true owner’s title by ‘no trespassing’ signs” or other similar methods.  Ganje, 659 N.W.2d at 269.  Additionally, appellants maintain that respondents’ use was not exclusive because appellants’ (1) children played in the disputed area; (2) predecessors’ in interest occasionally mowed the grass in the disputed area; and (3) predecessors’ in interest used the disputed area while building a garage.  But there is insufficient evidence in the record that the disputed area was used, save for a few intermittent entries, by anyone but respondents.  On the contrary, respondents have clearly and convincingly established their use of the disputed area since 1956 through extensive testimony and numerous exhibits.  Based on the record before us, the district court did not err in its findings regarding respondents’ exclusive use of the disputed area.

            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.  Rather, hostility is related to disseisor’s entry upon the land, possession of the land as if it were his or her own, and the exclusion of others from the land.  Ebenhoh, 642 N.W.2d at 110.  “Hostility is flexibly determined by examining the character of the possession and the acts of ownership of the occupant.”  Id. at 110-111 (quotation omitted).  Furthermore, the disseisor is not required to affirmatively deny the true owner’s title.  Ganje, 659 N.W.2d at 268-69.

Here, there is scant evidence that appellants expressly gave respondents permission for the numerous actions cited by the district court.  Rather, appellants argue that their permission was “implied.”  But mere acquiescence is not sufficient to overcome a disseisor’s hostile possession of a parcel of land.  Ehle, 293 Minn. at 191-92, 197 N.W.2d at 463.

These fact intensive adverse-possession determinations rely largely on the credibility of witnesses and the weight, if any, to be given to their testimony. Given the status of the record, we cannot say that any of the district court’s findings relating to the adverse-possession requirements were clearly erroneous.


                Appellants’ assertion that respondents cannot adversely possess the vacated township road because it is governmental land is baseless.  The township road adjacent to lots 45-47 was vacated on December 15, 1979.  Appellants maintain that because the vacation of the road was not recorded until August 1986, and this suit did not commence until 2000, it is impossible for respondents to claim adverse possession because such a claim would fail based on the 15-year requirement contained in Minn. Stat. § 541.02.  But Minn. Stat. § 368.01, subd. 25 (2002), states that a vacation of a road will not be invalidated if notice of the vacation is not properly filed.  It appears plain that vacation of the roadway occurred when the resolution was adopted, not when the resolution was filed.  Consequently, the effective date of the vacation of the roadway adjacent to lots 45-47 was December 15, 1979, not August 1986.  For this reason, appellants’ contention fails.


            Appellants argue, in the alternative, that title has not vested in respondents, even if all adverse-possession elements were established, because respondents have not paid taxes on the disputed property.  After establishing the 15-year adverse-possession period, Minn. Stat. § 541.02 states:

            Such limitations shall not be a bar to an action for the recovery of real estate assessed as tracts or parcels separate from other real estate, unless it appears that the party claiming title by adverse possession or the party’s ancestor, predecessor, or grantor, or all of them together, shall have paid taxes on the real estate in question at least five consecutive years of the time during which the party claims these lands to have been occupied adversely.


But this provision does“not apply to actions relating to the boundary line of lands, which boundary lines are established by adverse possession . . . .”  Id. (emphasis added).  Thus, the question becomes whether this case qualifies as a boundary-line dispute.

            Appellants assert that Grubb v. State, 433 N.W.2d 915, 918 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989), is applicable here. In Grubb, one landowner adversely possessed 13 acres of his neighbor's 16-acre parcel (approximately 80 percent). Id. at 919-21. This court held that such possession did not constitute a boundary-line dispute, and because the adverse possessor did not pay the real-estate taxes assessed on the parcel for five consecutive years during his adverse occupancy, Minn. Stat. § 541.02 vested title in the record owner.  Id. at 921.

            Possession of 80 percent of another’s land is certainly not a boundary-line dispute. Here, however, respondents adversely possessed less than 14 percent of appellants’ property.  “Although Grubb did not conclude that an adverse possessor must occupy nearly the entire disputed tract to trigger the tax-payment requirement of Minn. Stat. § 541.02, it likewise provided no insight as to what exactly constitutes a boundary-line dispute.”  Ganje, 659 N.W.2d 270.  Because there is no bright-line rule for this type of situation, we must relate this case to previous boundary-line disputes.  But we need not look further than Ganje, becauserespondents’ possession of less than 14 percent of appellants’ land is more akin to the nine percent in Ganje than the 80 percent in GrubbSee Ganje, 659 N.W.2d at 269-70 (holding that the adverse possession of nine percent of another’s property was considered a boundary dispute).

            Appellants’ argument that Grubb applies because the disputed land comprises 46 percent (i.e., 23 feet of a 50-foot parcel) of lot 46 is misplaced because lots 46 and 47 have been transferred as one parcel since the early 1900s and should therefore be treated as one parcel comprising 166 feet.  Because this is a boundary-line dispute, the fact that respondents did not pay taxes on the disputed area is irrelevant, and the district court did not err by so holding.


            Finally, appellants maintain that Lola Kettelkamp, respondents’ predecessor in interest, conceded all right, title, interest, and ownership to any part of lot 46 to the Whitings and Cockers, appellants’ predecessors in interest, when Kettelkamp signed a well agreement in 1979.  In support of this argument, appellants cite Olson v. Burk, 94 Minn. 456, 103 N.W. 335 (Minn. 1905).  The Olson court stated:

Acknowledgment of the title of the owner of the land

 . . . may be made in many ways ¾ among others, by the acceptance of a lease or contract for the purchase of the land from the owner thereof. . . . If the evidence with reference to the making of these contracts was rightly received, it is ample to establish an acknowledgment and recognition of the title of the owner to the land, which would and did interrupt the continuity of the alleged adverse possession of the defendant.


Id. at 458, 103 N.W. at 336-37.  But respondents accurately note that Olson and its progeny do not apply to cases where there is a boundary-line dispute.  Glidden Co. v. Twin City Hardwood Lumber Co., 171 Minn. 160,163, 213 N.W. 562, 563 (Minn. 1927).  Instead, Olson applies to cases in which title to the entire parcel is in dispute.  Id.  Appellants’ argument is therefore unpersuasive.  Moreover, even if the well agreement conceded ownership in lot 46 in its entirety, respondents and their predecessors in interest reestablished the necessary elements of adverse possession between 1979 and 2000.