This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Gordon Grannes, et
Red Cedar of Yellow Medicine, Inc.,
Filed March 6, 2007
Affirmed in part, reversed in part, and remanded
Redwood County District Court
File No. C8-04-550
John E. Mack, Mack & Daby, P.A., P.O. Box 302, New London, MN 56273 (for appellants)
Robert D. Stoneburner, Stoneburner Law Office, 100 Washburne Avenue, P.O. Box 202, Paynesville, MN 56362 (for respondent)
Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
On appeal in this dispute over the ownership of a parcel of land, appellants challenge the district court’s determination that respondent acquired the property by adverse possession, arguing that (1) the evidence is insufficient to show the elements of continuous, exclusive, and hostile possession for the required period; and (2) this lawsuit is barred under the doctrines of judicial estoppel and res judicata. We affirm in part, reverse in part, and remand.
Appellants Gordon and LaVon Grannes brought this action against respondent Red Cedar of Yellow Medicine, Inc., seeking injunctive relief and damages for trespass and nuisance. Red Cedar counterclaimed, alleging that it had acquired title to the property under the doctrine of adverse possession.
The Granneses and Red Cedar own adjacent parcels of property: the Granneses’ property lies east of Red Cedar’s property. The parties dispute the ownership of a 4.68 acre parcel. The boundary line between the parties’ adjacent parcels is the western boundary of the disputed property, and the eastern boundary of the disputed property is marked by a fenceline. The Granneses are the record owners of the disputed property, which is accessed by a roadway crossing the Grannes property.
In 1967, Gordon Grannes and his brother, Charles Grannes, became co-owners of the current Grannes property, which Charles Grannes farmed. In 2000, the brothers exchanged properties, and Gordon and LaVon Grannes became the sole owners of the property. Both Charles and Gordon Grannes agreed that the fenceline that marks the eastern edge of the disputed property has existed since they bought the property in 1967.
In 1968, the View Quarry Company acquired the property currently owned by Red Cedar. View Quarry was owned by Rex Granite, which was owned by Earl Zniewski. View Quarry conveyed the property to Kevin and Yvonne Hockert by warranty deed dated February 1, 1995. In 1994, Red Cedar entered into a contract for deed to buy the Hockerts’ property interest. The Hockerts conveyed the title to the property to Red Cedar by warranty deed dated March 16, 1998.
In 1970, View Quarry constructed on the disputed property a steel-framed building with a cement floor, which was used as a compressor shed. Marvin Skogen, who is a member/shareholder of Red Cedar, began working for View Quarry in 1975 and engaged in activities north, south, east, and west of the building on behalf of View Quarry. The quarry operated year-round. From at least 1975 until the quarry closed in 1982, fuel trucks, trucks hauling granite, and delivery trucks used the roadway that crosses the Grannes property to access the disputed property.
From 1982 until 1994, Marvin Skogen operated a sawmill on the disputed property on a daily, year-round basis. Marvin Skogen had permission from Earl Zniewski to operate the sawmill on the disputed property and to use the compressor shed. Marvin Skogen also has used the disputed property for hunting and other recreational purposes for more than 15 years. His family currently uses the compressor shed as a hunting shack.
Brian Skogen has been a member/shareholder of Red Cedar since its inception in 1994. Brian Skogen, who was age 36 at the time of trial, testified that he has used the disputed property for hunting since at least 1980 and that he first hunted there when he was age 12. He bow hunted on the disputed property while he was in college, and during the 12 years preceding the trial, which was after Brian Skogen finished college, he used the disputed property every month for hunting and fishing. He, along with others, cut and maintained trails on the disputed property.
In 2003, the Granneses brought an action against Red Cedar seeking an injunction prohibiting it from using the roadway that crosses the Grannes property. The district court determined that Red Cedar had obtained a prescriptive easement to use the roadway. This court affirmed. Grannes v. Red Cedar of Yellow Medicine, Inc., No. A04-1264 (Minn. App. Apr. 26, 2005).
A survey that was conducted as part of the easement action revealed that the legal boundary between the parties’ parcels of property was west of the fenceline. Before that survey was completed, the Granneses did not attempt to assert control over the disputed property. Gordon Grannes never excluded anyone from the disputed property. He never had a lease with View Quarry for use of the disputed property. But he knew that a quarry was located on or adjacent to his property and that a building had been constructed near the quarry site. Gordon Grannes allowed vehicles to use the roadway crossing his property to access the building.
At trial, LaVon Grannes disagreed that until 2003, she had never questioned that the fenceline was the boundary line. But in a deposition, when asked if she ever made any claim to the property west of the fenceline, she replied, “[N]o because everything was fine until they actually found out where the boundaries were.”
In 2002, during the dispute that resulted in the easement action, with Gordon Grannes’s authorization, the Granneses’ son, Paul Grannes, placed a “no trespassing” sign facing west approximately ten feet east of the fenceline.
The case was tried to the court. The district court determined that Red Cedar had acquired title to the disputed property under the doctrine of adverse possession, and judgment was entered accordingly. The district court denied the Granneses’ motion for a new trial. This appeal followed.
D E C I S I O N
1. “Mere possession is not enough to establish title to land by adverse possession.” Johnson v. Raddohl, 226 Minn. 343, 345, 32 N.W.2d 860, 861 (1948). To establish adverse possession, the disseisor must show, by clear and convincing evidence, that the property was used in an actual, open, continuous, exclusive, and hostile manner for at least 15 years. See Minn. Stat. 541.02 (2006) (stating that an adverse-possession claim cannot be made until after 15 years of possession); Rogers v. Moore, 603 N.W.2d 650, 657 (Minn. 1999) (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). 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). “Failure to establish any one of the five essentials is fatal to the validity of the claim.” Johnson, 226 Minn. at 345, 32 N.W.2d at 861.
The Granneses argue that the evidence is insufficient to show the elements of continuous, exclusive, and hostile possession for the required period. We agree that with respect to a portion of the disputed property, the evidence was insufficient to show that throughout the required 15-year period, there was exclusive and hostile possession.
It is undisputed that in 1994, Red Cedar entered into a contract for deed to purchase the property that View Quarry had owned, and in 1998, title to the property was transferred to Red Cedar by warranty deed. Because the Granneses brought suit less than 15 years after Red Cedar entered into the contract for deed, the required period for Red Cedar’s adverse-possession claim began before Red Cedar entered into the contract for deed. Consequently, Red Cedar needed to prove that for some period before it entered into the contract for deed, there was adverse possession of the disputed property. To meet this burden, Red Cedar could rely on the activities of View Quarry and other previous holders.
It is not necessary that the property should have been in the possession of the same party for the whole statutory period. The possession of several successive holders may be tacked together if there is privity between them. Such privity exists between two successive holders when the latter takes under the earlier by voluntary transfer of possession. It is not necessary that the deed from the one to the other should describe the tract adversely occupied.
Kelly v. Green, 142 Minn. 82, 85, 170 N.W. 922, 923 (1919).
But it was necessary for Red Cedar to prove that throughout the 15-year period, the possession of the disputed property by successive holders was exclusive and hostile. To prove that possession was exclusive, Red Cedar needed to show that the adverse claimant intended to claim the land occupied to the exclusion of all others. Wortman v. Siedow, 173 Minn. 145, 148, 216 N.W. 782, 783 (1927).
Similarly, the requirement of “hostile” possession does not refer to personal animosity or physical overt acts against the record owner of the property but to the intention of the disseizor to claim exclusive ownership as against the world and to treat the property in dispute in a manner generally associated with the ownership of similar type property in the particular area involved.
Ehle, 293 Minn. at 190, 197 N.W.2d at 462.
The activities of successive holders that the district court relied on to conclude that there was actual and open possession varied significantly between the northern and southern portions of the disputed property. On the northern portion of the disputed property, View Quarry constructed a building in 1970, which it used as a compressor shed in its year-round quarry operation. From at least 1975 until the quarry closed in 1982, fuel trucks, trucks hauling granite, and delivery trucks used the roadway crossing the Grannes property to access the disputed property. Beginning in 1982, with View Quarry’s permission, Marvin Skogen operated a sawmill business on the northern portion of the disputed property on a daily, year-round basis. Skogen operated the sawmill business until 1994.
On the southern portion of the disputed property, the activities that the district court relied on to find actual and open possession were hunting, cutting brush, grooming trails, and placing a steel deer stand on the property. With respect to the southerly 344 feet of the disputed property, the district court stated in its memorandum that to the extent that any of these activities occurred before 1994, they were conducted by members of Red Cedar and that “[t]here was no testimony of activities occurring in this area through View Quarry Company.” These statements are significant because, in 1994, when Red Cedar entered into the contract for deed to purchase the Hockerts’ property, the fence line served as the west boundary line of the Granneses’ property, which means that when Red Cedar entered into the contract for deed, it believed that the disputed property was part of the parcel that it was buying under the contract for deed. This, in turn, means that in 1994, Red Cedar believed that the contract-for-deed vendors owned the disputed property, and the contract for deed acknowledges this ownership.
But if Red Cedar believed in 1994 that the contract-for-deed vendors owned the disputed property, possession of the disputed property by Red Cedar’s members before it entered into the contract for deed could not have been with the intention to claim the disputed property to the exclusion of all others or to claim exclusive ownership as against the world and treat the property in a manner generally associated with the ownership. Instead, the Red Cedar members were occupying the disputed property under the mistaken belief that it was owned by the contract-for-deed vendors and had been owned by the contract-for-deed vendors’ predecessors in interest.
Consequently, possession of the southern portion of the disputed property did not become exclusive and hostile until Red Cedar entered into the contract for deed in 1994 and its members began to believe that Red Cedar owned the property. But this possession did not continue for 15 years before the Granneses brought suit and, therefore, was not sufficient by itself to establish title by adverse possession. And because the district court determined that all activities indicating possession that occurred on the southerly portion of the disputed property before 1994 were conducted by members of Red Cedar, there was no adverse possession by previous holders that could be tacked to Red Cedar’s possession to meet the 15-year requirement. Therefore, Red Cedar did not establish all five elements of adverse possession with respect to the southerly portion of the disputed property.
A different analysis applies to the northerly portion of the disputed property because View Quarry was in possession of that portion of the property beginning at least by 1975 when it used the property as part of its quarry operation. That use continued until 1982, when View Quarry closed its quarry and transferred possession of the property to Marvin Skogen for use in his sawmill operation. Marvin Skogen did not claim to own the property that he used for his sawmill, but his use of this property differed from Red Cedar’s use of the southerly portion of the disputed property because Skogen used the property with the permission of View Quarry’s owner, Earl Zniewski. By giving Marvin Skogen permission to use the property for his sawmill, View Quarry continued to exercise ownership rights over the disputed property. Marvin Skogen continued to operate the sawmill until 1994. Because Marvin Skogen operated the sawmill with View Quarry’s permission and under the assumption that View Quarry owned the disputed property, the fact that Marvin Skogen was not attempting to exercise ownership does not defeat the adverse-possession claim.
Land may be held adversely through the tenants or agents of the disseisor. It is not necessary that [the disseisor] should be personally in possession, nor is it necessary that [the disseisor] should be within the state, so that process may be served on him. It is necessary, to constitute adverse possession, that there be at all times some person in an action against whom the real owner may recover the possession of the land. If the disseisor be in possession by tenants or agents, the owner may recover the possession from them, and thus break the disseisin, terminate the adverse possession, and reinstate his own seisin.
City of St. Paul v. Chicago, M. & St. P. Ry. Co., 45 Minn. 387, 399, 48 N.W. 17, 21-22 (1891). Under this rationale, we see no reason why the transfer of possession from View Quarry to Skogen should not be treated as a continuation of View Quarry’s possession. While he operated his sawmill, Skogen was a person from whom the Grannesses could recover possession of the land. Therefore, View Quarry established title to the northerly portion of the disputed property by adverse possession at some point in 1990, 15 years after it began using the property for its quarry operations in 1975.
The Granneses also argue that Red Cedar’s possession was neither continuous nor exclusive because both parties used the disputed property incidentally for recreational purposes. “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). When 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 Laabs v. Bolger, 130 N.W.2d 270 (Wis. 1964)); 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”).
Caselaw establishes that we look to the property’s nature to determine the conclusions to be drawn from use of the property. Here, the record shows that Red Cedar’s members regularly used the disputed property for hunting and fishing, a use that is consistent with the property’s nature.
Regarding exclusivity, the district court specifically found that the Granneses’ claims regarding their use of the disputed property were not credible. Rather, until the legal boundary was known, the Granneses treated the fence line as the boundary line. LaVon Grannes’s deposition testimony shows that, until the 2003 survey, the Granneses thought that the fence line was the boundary line. When Paul Grannes put up a “no trespassing” sign in 2002, he placed it east of the fence line and facing west, which indicates that he thought that the fence line was the property line. Although the Granneses’ understanding is not affirmative evidence of adverse possession, it corroborates evidence that Red Cedar and its predecessors-in-interest used the property as though the fence line was the property line.
2. The Granneses argue that Red Cedar’s adverse-possession claim is barred by the doctrines of judicial estoppel and res judicata. The supreme court has expressly declined to adopt the doctrine of judicial estoppel. State v. Pendleton, 706 N.W.2d 500, 507 (Minn. 2005). Accordingly, we decline to apply it here.
The availability of res judicata is subject to de novo review. Erickson v. Commissioner of Dep’t of Human Servs., 494 N.W.2d 58, 61 (Minn. App. 1992). If the reviewing court determines that res judicata is available, the decision whether to actually apply the doctrine is left to the discretion of the trial court. Id. The doctrine of res judicata is designed to prevent the relitigation of causes of action already determined in a prior action. Beutz v. A.O. Smith Harvestore Prods., Inc., 431 N.W.2d 528, 531 (Minn. 1988). Res judicata is properly invoked when (1) there is a final judgment on the merits; (2) a subsequent suit involves the same cause of action; and (3) the parties are identical or are in privity with the former parties. In re Trusts by Hormel, 543 N.W.2d 668, 671 (Minn. App. 1996).
The question in this case is whether the easement action and this action involve the same cause of action. “Two causes of action are the same when they involve the same set of factual circumstances or when the same evidence will sustain both actions.” Myers v. Price, 463 N.W.2d 773, 777 (Minn. app. 1990), review denied (Minn. Feb. 4, 1991). While the two actions are related, they are not identical. The easement action involved the right to use a roadway crossing the Granneses’ property, and this action concerns ownership of the tract of land accessed by the roadway. Also, different elements are required to prove a prescriptive easement and adverse possession. See Hartman v. Blanding’s Inc., 288 Minn. 415, 421-22, 181 N.W.2d 466, 469-70 (Minn. 1970) (discussing elements required to prove prescriptive easement). Because this action and the easement action are not the same, res judicata does not apply.
Because we have concluded that Red Cedar did not establish all five elements of adverse possession with respect to the southerly portion of the disputed property but did establish all five elements of adverse possession with respect to the northerly portion of the property, we remand to the district court to permit it to locate the southern boundary of the disputed property that View Quarry possessed and transferred to Marvin Skogen and to draft a description of the northerly portion of the disputed property for which Red Cedar established title by adverse possession.
Affirmed in part, reversed in part, and remanded.
Although Marvin Skogen testified that the building was located slightly off of the disputed property, exhibit 101 supports the district court’s finding that the building was located on the disputed property.
 The district court’s findings do not describe Red Cedar, but it appears from the record that Red Cedar is an entity created to hold title to the property purchased from the Hockerts. Red Cedar’s shareholders are referred to as shareholders or members.