This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






John Wesley Hebert, et al.,





City of Fifty Lakes,



Filed February 27, 2007

Reversed and remanded

Worke, Judge


Crow Wing County District Court

File No. C2-05-1223


Peter G. Mikhail, Scott M. Lucas, Thomas B. Olson & Associates, P.A., One Corporate Center I, Suite 575, 7401 Metro Boulevard, Edina, MN 55439 (for appellants)


Paul D. Reuvers, Pamela J.F. Whitmore, Iverson Reuvers, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondent)


Considered and decided by Klaphake, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N


WORKE, Judge


On appeal from the dismissal of appellants’ declaratory judgment action seeking damages for trespass and ejectment of respondent from a portion of their registered Torrens property, upon which respondent encroached when it laid a gravel road in 1971 that deviated from the platted road, appellants argue that (1) the district court erred in dismissing their claims because respondent is a mere trespasser and its purported adverse possession of Torrens property can never ripen into title, (2) respondent never properly invoked its power of eminent domain by initiating condemnation proceedings, and (3) respondent’s action did not constitute a de facto taking.  Respondent counters that its action constituted a de facto taking rather than a tortious trespass or adverse possession.  Because we find that the nature of respondent’s encroachment under the facts and circumstances of this case is more akin to a temporary intrusion onto appellants’ property, we hold that a de facto taking did not take place, and we reverse and remand to the district court for further proceedings.


Appellants John Hebert and nine other landowners of registered Torrens property filed a declaratory judgment action in May 2005 against respondent City of Fifty Lakes.  Appellants sought damages for trespass and ejectment of respondent from a portion of their property, which respondent encroached upon when it laid a gravel road in 1971 that deviated from the platted road.  Collectively, appellants own six lots of adjacent lakeshore property along the south side of North Mitchell Lake Road in Fifty Lakes, Minnesota.  The lots were registered as Torrens property in 1953, and the sixty-six foot wide roadway bordering the north side of the lots was dedicated in 1954 when the plat was recorded.

Respondent laid the gravel road in 1971; however, it deviated south—presumably mistakenly—from the platted road and thereby encroached on appellants’ property by over forty-nine feet at one point.  The gravel road has been open and used continuously by the public since 1971, but there are no current plans to pave it or otherwise improve it to make it permanent.  A survey of the lots depicted the encroachment of the gravel road on the plaintiffs’ lots and described the boundary of the two lots in part as “subject to the public road crossing said property.”  The landowners conceded that they were aware of the encroachment of the gravel road onto their property since at least 1989.[1] 

The three-count complaint sought a declaratory judgment that appellants held exclusive possession of the entirety of their property and that respondent had no right, title or interest in any portion of the property.  The complaint also sought an injunction against respondent ejecting it from the property and money damages for respondent’s unlawful and continuous trespass onto appellants’ property.  Respondent moved to dismiss the complaint for failure to state a claim upon which relief could be granted, arguing that respondent’s encroachment constituted a taking of the property necessary for the public use of the gravel road and that the applicable statute of limitations, for both inverse condemnation and for trespass, had long since expired.  Appellants moved for partial summary judgment on their declaratory judgment and ejectment claims.

Following a hearing, the district court granted respondent’s motion to dismiss and denied appellants’ motion for partial summary judgment.  The district court found that the encroachment of the gravel road constituted a de facto taking, rather than an adverse possession, that dispossessed appellants of that portion of their land.  Accordingly, the district court concluded that since appellants no longer legally possessed the portion at issue, they could not maintain an action for ejectment or trespass against respondent.  The district court further concluded that, while appellants could have brought an inverse condemnation action to recover compensation for the de facto taking of the portion of their Torrens property, which is expressly subject to eminent domain proceedings by statute, they failed to do so within the prescribed fifteen-year statute-of-limitations period.  This appeal follows.


When reviewing cases dismissed for failure to state a claim on which relief can be granted, the only question before a reviewing court is whether the complaint sets forth a legally sufficient claim for relief.  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).  A claim should be dismissed only if it appears to a certainty that no facts could be introduced that would support the granting of the relief demanded.  N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963).  We must accept the allegations set forth in the complaint as true and draw all reasonable assumptions and inferences from them in the light most favorable to the complainant.  Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003).  We review de novo the legal sufficiency of the claims presented.  Id.

Appellants argue that the district court erred in granting respondent’s motion to dismiss because respondent, as a mere trespasser, could never legally acquire title to Torrens property by mere possession.  They claim that because any interest or encumbrance on Torrens property must be registered, an adverse possessor or mere trespasser may never obtain legal possession of the property against the holder of the registered certificate of title.  See In re Collier, ___ N.W.2d ___, ___ (Minn. Feb. 1, 2007) (explaining that for property registered under Torrens law, any conveyance, lien, instrument, or proceeding that would affect the registered title must be filed and registered with the registrar of titles to affect the title to the Torrens property); see also Minn. Stat. § 508.25 (2006) (specifying that the title holder of registered property holds it free from all encumbrances and adverse claims).  Appellants contend that because a trespasser can never obtain title to Torrens property by mere possession, the statutes of limitations for trespass to property and recovery of real estate will never preclude an ejectment action against a trespasser or adverse possessor.  They also argue that a municipality cannot employ a de facto taking “as a sword” but must follow statutory condemnation procedures to be constitutionally valid.  Respondent argues that Torrens property is subject to taking by eminent domain and that respondent’s encroachment on the landowners’ property was for the public use of the gravel road and, therefore, constituted a de facto taking rather than a trespass or adverse possession.  We disagree.

The Minnesota Constitution provides that “[p]rivate property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.”  Minn. Const. art. I, § 13.  “Whether . . . a government agency has exceeded its police power and taken private property for public use is a question of law for the determination of the court under the existing facts and circumstances of the particular case.”  Thomsen v. State, 284 Minn. 468, 474 n.4, 170 N.W.2d 575, 580 n.4 (1969).  When government action interferes with a property owner’s rights of possession, use, enjoyment, or value of property, “several possible remedies or causes of action, such as negligence, nuisance, trespass, and inverse condemnation” will lie.  Wilson v. Ramacher, 352 N.W.2d 389, 394 (Minn. 1984) (footnotes omitted).  “It is not always easy to determine which cause of action applies, but a helpful approach is to focus on the nature of the damages or harm done rather than on a characterization of the municipality’s acts.”  Id.  A trespass encompasses any unlawful interference with a person’s property and requires only two essential elements: “a rightful possession in the plaintiff and unlawful entry upon such possession by the defendant.”  Special Force Ministries v. WCCO Television, 584 N.W.2d 789, 792–93 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998).  By contrast, a taking in the constitutional sense exists “where the government interferes with a person’s property to such a substantial extent, the owner has lost a part of his interest in the real property.  Substituted for the property loss is the right to compensation.”  Brooks Inv. Co. v. City of Bloomington, 305 Minn. 305, 315, 232 N.W.2d 911, 918 (1975).  A “de facto taking” is equivalent to “title by appropriation” and occurs where a government entity, vested with the power of eminent domain, “enters into actual possession of land necessary for its purposes, with or without the consent of the owner, and the [owner] remains inactive while valuable improvements are being constructed thereon, the use of which require a continued use of the land.”  Id. at 318, 232 N.W.2d at 920 (emphasis added) (quotation omitted).  It is the degree of interference with an owner’s property rights¾amounting to a loss of interest in the real property¾that determines whether the governmental action constitutes a “taking in the constitutional sense.”  See Spaeth v. City of Plymouth, 344 N.W.2d 815, 822 (Minn. 1984) (noting that the difference between a land intrusion of such frequency, regularity, and permanency, which constitutes taking, and a mere temporary intrusion, which should be left only to possible damages recovery, “is a question of degree”).

In Brooks Inv. Co., for example, the city laid sewer and water lines and eventually constructed and paved a public, main through-street over a 30-foot strip of the property owner’s two lots over the course of a year without first taking any action to acquire title to the property by condemnation.  Brooks Inv. Co., 305 Minn. at 306-07, 232 N.W.2d at 913.  The supreme court concluded that the city’s construction of the street constituted substantial interference with the property that for all practical purposes destroyed the owner’s use and enjoyment of that part of the property and therefore constituted a de facto taking.  Id. at 319, 232 N.W.2d at 920. 

By contrast, the record here indicates that a mere gravel road was laid by respondent, which deviated from the platted road¾presumably by mistake¾and encroached on varying portions of appellants’ plots of land.  Though the gravel road has allegedly been in open and continuous use since 1971, its primary purpose is to allow property access to the owners of lake shore property in Lake Mitchell and not as a main thoroughfare in the City of Fifty Lakes.  There have been no “valuable improvements” constructed on the gravel road, and it has not been made permanent by, for example, paving or curbing, since it was laid in 1971, nor are there any plans by the city to do so.  Logically, a gravel road by its very nature would be much easier to physically move than a paved street with curbing and sewer and water lines, thereby making the gravel road more akin to a temporary and unintended, as opposed to a permanent, intrusion.  Clearly, both parties contemplated an encroachment for a road but at the platted location.  Thus, a gravel road, albeit at the wrong location, is not so much an encroachment as it is a mistaken alignment.  Consequently, we conclude that the degree of interference by the gravel road at the wrong location is not so substantial as compared to that in Brooks Inv. Co. to constitute a taking in the constitutional sense.  See Vern Reynolds Constr., Inc. v. City of Champlin, 539 N.W.2d 614, 619 (stating that, where the weight of the evidence showed the city’s use of plaintiff’s property was temporary, it was reasonable to conclude that the landowner had a claim in tort for nuisance or trespass rather than for an unconstitutional taking), review denied (Minn. Dec. 20, 1995); contrast Wilson, 352 N.W.2d at 394 (concluding that damages alleged by a landowner from the city’s diversion of surface water causing substantial and permanent flooding of property, rendering it unfit for use, more readily constitutes a taking rather than a trespass as alleged in complaint). 

Here, appellants have suffered at most a minor, but mistaken and unintended, intrusion with their use of the property.  Compare Orfield v. Housing & Redev. Auth. of St. Paul, 305 Minn. 336, 341-42, 232 N.W.2d 923, 927 (1975) (holding that the city’s activities that caused the property owner’s economic loss did not amount to such direct and substantial invasion of owner’s property rights as to constitute a de facto taking in the constitutional sense), with Alevizos v. Metro. Air. Comm’n, 298 Minn. 471, 487, 216 N.W.2d 651, 662 (1974) (defining the test for taking compensation as whether property owners can show “a direct and substantial invasion of [their] property rights of such a magnitude [that they are] deprived of the practical enjoyment of the property”).

We have no doubt that Torrens property is subject to taking by eminent domain, a point conceded by appellants.  See Minn. Stat. § 508.02 (2006) (noting that while title to registered land cannot be acquired by prescription or by adverse possession, it “shall not operate to change . . . the right to take land by eminent domain”).  But in our view, the nature of the damages caused by respondent’s action here more readily constitutes a trespass than a de facto taking.  See generally Forsythe v. City of So. St. Paul, 177 Minn. 565, 566–68, 225 N.W. 816, 816–17 (1929) (stating that where the evidence did not support a finding of any actual taking of property, and property damage was limited to entrance and removal of sand and soil due to erosion from the city’s grading of adjacent street, plaintiff properly brought an action for damages from trespass rather than for condemnation).  Because we find there was no de facto taking, the fifteen-year statute of limitations for recovery of real estate does not apply.  See Minn. Stat. § 541.02 (2006); see also Vern Reynolds Constr., 539 N.W.2d at 618 n.2 (noting that fifteen-year statute of limitations period applies to inverse condemnation actions).  Respondent remains free to begin proper statutory eminent domain proceedings under Minn. Stat. §§ 117.012-117.045 (2006), if it so chooses. 

Accepting, as we must, the allegations set forth in the complaint as true, appellants demanded respondent to remove the road from their property but respondent apparently has continuously refused to do so.  It is this failure to abide by the demand and remove the road, rather than respondent’s initial mistaken entry, that characterizes the wrong and supports appellants’ theory of a continuing trespass and seeking an ejectment remedy.  See N. States Power Co., 265 Minn. at 397, 122 N.W.2d at 30 (stating that the demand for removal of structures rather than original entry to erect structures constituted the wrong and supported appellant’s theory of continuing trespass that survived motion to dismiss for failure to state a claim).  Because the encroachment of the gravel road is the “harmful effect” on appellants’ property causing the diminution in value, and because it may (by its nature) be “abated or discontinued at any time” by simply moving the gravel road off appellants’ property and correctly onto the platted road, “there is a continuing wrong so long as the offending object remains, and the courts regard such as a continuing trespass.”  Id. at 397, 122 N.W.2d at 30-31 (quotation omitted).  For a continuing trespass, the six-year statute of limitations for actions in trespass does not run from the initial trespass and therefore is inapplicable to appellants’ claims.  See id. at 397, 122 N.W.2d at 31 (noting that statute of limitations does not run from initial trespass for a continuing trespass and stating that resolution of whether trespass is continuing or single is essentially one of proof that cannot be resolved short of trial or motion for summary judgment); Minn. Stat. § 541.05, subd. 1(3) (2006) (stating that six-year statute of limitations applies to actions for trespass without indicating when period commences).

But even if fleshing out of the facts and circumstances by way of trial or motion for summary judgment would prove that respondent’s laying of the gravel road constituted a single trespass for which the six-year statute of limitations expired, appellants’ complaint nonetheless stated a claim for an ejectment action for which they would be entitled to relief.  Ejectment is an action for possession of real estate in which the plaintiff must show a present or immediate right of possession and a legal estate in the property sought to be recovered.  Levine v. Twin City Red Barn No. 2, Inc., 296 Minn. 260, 263, 207 N.W.2d 739, 741 (1973).  Because the owner of registered property cannot be dispossessed of that property by mere continuous trespass or adverse possession, appellants have a “present exclusive right to possession” of the portion of their property encroached upon by the gravel road, and therefore can properly maintain an action for ejectment against respondent.  See Levine, 296 Minn. at 263, 207 N.W.2d at 741 (“Ejectment can be maintained only against a person in possession by one having a present exclusive right to possession.”).  In sum, appellants stated a claim upon which relief could be granted, and the district court erred in granting respondent’s motion to dismiss.

Reversed and remanded.

[1] The complaint avers that the landowners demanded the city to remove the road from their property and that the city refused to do so, but it does not specify when such a demand was made.  The landowners claimed at the district court hearing that it would cost the city approximately $18,000 to move the gravel road off of their property and onto the platted designation.  The city countered, however, that besides environmental concerns arising from nearby wetlands, North Mitchell Lake Road runs in a complete circle around the lake and would likely cost significantly more assuming that there were other deviations from the platted road.