This opinion will be unpublished and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
Kennard Anderson, et al.,
Department of Natural Resources,
Filed September 4, 2007
Dissenting, Lansing, Judge
Kittson County District Court
File No. C8-05-129
Douglas P. Anderson, Rosenmeier, Anderson & Vogel, 210 2nd Street Northeast, Little Falls, MN 56345 (for respondents)
Lori Swanson, Attorney General, Thomas K. Overton, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
Appellant State of Minnesota and its Department of Natural Resources (DNR) challenge the district court’s order granting a prescriptive easement in gross on state land to respondents Kennard Anderson, Evans Anderson, James Anderson, Wayne Anderson, Douglas Anderson, David Anderson, Richard Anderson, and Michael Anderson. We affirm.
the 1930s, respondents’ family has owned a parcel of land that is adjacent to
land now owned by appellant State of
The matter was tried to the district court. Based on a stipulation submitted by the parties, testimony, affidavits, and exhibits, the district court made 30 factual findings and concluded that respondents have a right to a prescriptive easement by motor vehicle over trail segments 1 through 5 in section 25. The district court further determined that the right is not assignable and will terminate with the lives of the named respondents. The state did not bring any posttrial motions. This appeal follows.
The state raises three issues on appeal: (1) whether the district court erred by granting respondents a prescriptive easement to recreate on another’s land when state laws encourage landowners to permit public recreation on their land; (2) whether the district court erred by concluding that respondents established the prescriptive elements of hostility and visibility by clear and convincing evidence; and (3) whether the scope of the prescriptive easement granted by the district court is excessive, given the extent of respondents’ use.
Because there was no motion for a new trial, our scope of review includes substantive legal issues properly raised at trial, whether the evidence sustains the findings of fact, and whether such findings sustain the conclusions of law and judgment. Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310 (Minn. 2003) (substantive legal issues properly raised at trial); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976) (whether the evidence supports the findings and the findings support the conclusions of law and judgment).
court will not set aside the district court’s findings of fact “unless clearly
erroneous, and due regard shall be given to the opportunity of the [district] court
to judge the credibility of the witnesses.”
Rogers v. Moore, 603 N.W.2d 650, 656 (
easement is “an interest in land in the possession of another which entitles
the owner of such interest to a limited use or enjoyment of the land in which
the interest exists.” Minneapolis Athletic
Club v. Cohler, 287
Whether a prescriptive easement exists is determined in a
manner similar to title by adverse possession.
Romans v. Nadler, 217
state argues that the district court erred by granting an easement to
respondents when Minnesota law encourages landowners to permit public
recreation on their land and purports to protect landowners from claims arising
from such recreational use. In support
of its contention, the state cites Minn. Stat. §§ 604A.20, .21, .27 (2006) and
Minn. Stat. §§ 87.01, .02, .03 (1971).
The district court found that the
legislature first effected this public policy through establishing “free
recreational areas,” which were private property open to recreation for which
the owner did not receive compensation for those who entered. 1961
in 1971, the legislature abolished “free recreational areas” and extended state
policy and liability protections to all privately owned land. 1971
1994 legislature enacted a new version of the law as a part of statutory
No dedication of any land in connection with any use by any person for a recreational purpose takes effect in consequence of the exercise of that use for any length of time except as expressly permitted or provided in writing by the owner, nor shall the grant of permission for the use by the owner grant to any person an easement or other property right in the land except as expressly provided in writing by the owner.
While the district court’s finding regarding the inapplicability of the recreational-use statute has a basis in the language of the 1994 amendment, we do not have to reach it because the state’s argument ignores respondents’ use of the property that long preceded the state’s acquisition of the land in 1989. Respondents testified extensively regarding their use of the property and trails beginning in the 1930s. Use continued uninterrupted until 2002, when the DNR installed signs, and 2003, when the DNR erected a fence across a trail. The evidence in this record supports the district court’s finding that respondents’ adverse use of the trails in section 25 extended for 15 or more years before the state’s ownership of the land.
In a related argument, the state
contends that the district court erred by concluding that respondents have
established a prescriptive easement because, since recreational use is
We note at the outset that, before trial, the parties agreed to certain terms in a stipulation that was submitted to the court. The parties stipulated to the following, which the district court explicitly adopted in its factual findings:
2. Kennard Anderson, Evans Anderson, James
Anderson, Wayne Anderson, Douglas Anderson, David Anderson, Richard Anderson,
and Michael Anderson (“[respondents]”) are the owners in equal shares of the
Northwest Quarter (NW1/4) of Section 25, Township 160, Range 47 (“
. . . .
10. Ferdie Anderson and [respondents] have used the State Lands for more than 60 years. Over the years, trails on the State Lands have been established and used by the [respondents] for vehicle and foot travel. The [respondents] have accessed the State Lands by car and pickup. Prior to DNR ownership of the State Lands, the [respondents] maintained the trails by removing deadfalls, removing rocks, and brushing out trails.
. . . .
12. The [respondents] have used the State Lands for many years for picking berries in June, hunting partridge in September, hunting deer, snowmobiling, and nature viewing. More recently, the [respondents] rode four-wheelers in the State Lands.
In addition, the district court found:
20. Various aerial photographs, maps, and
records confirm the existence of the trails for many years prior to the time
that the State obtained title to the property in 1989. The [state] had actual notice of the
existence of the trails when it bought the land in the S1/2 of Section 25. It had visual evidence of the trails as well
. . . .
26. [Respondents] testified to the following regarding the State Lands:
a. The [respondents] use of the trails was open for more than 15 years prior to September 29, 1989 when the [state] acquired its interest in the property.
b. The [respondents] use of the trails was notorious for more than 15 years prior to September 29, 1989.
c. [Respondents] use of the trails was hostile for more than 15 years prior to September 29, 1989.
d. The previous owners of the S1/2 of Section 25 had not consented to the use of the trails by [respondents].
e. The [respondents] have exercised dominion and control over the trails providing fill, clearing and brushing, removing rocks and deadfalls, and maintaining the trails in adequate width so that motor vehicles could pass along the Segments.
27. [Respondents] testified that they have used motor vehicles on the trails for ingress and egress to accomplish the following purposes: wood harvesting, deer hunting, moose hunting, berry picking (chokecherry and cranberry), rabbit hunting, partridge (grouse) hunting, trail maintenance and clearing, 3-wheeling, 4-wheeling, snowmobiling, and nature viewing. When Ferdie Anderson first purchased the property in the 1930s, it was not only used for hunting but also to harvest wood since that was the primary source of heat for the farm in the winter. Wood was harvested on [respondents’] land as well as on the land now owned by [the state]. [Respondents] testified that Evans Anderson began using the trails by motor vehicle in approximately 1941 and has used them to the current time. Douglas Anderson began using the trails in 1961 and has used them to the present time by motor vehicle.
The evidence in this matter sustains the district court’s findings of fact. In addition to the parties’ stipulation, four members of respondents’ family testified at trial. Evans Anderson, age 77, testified that his father, Ferdie Anderson, purchased land in section 25 in the early 1930s. At that time, the family cut trees in the section to burn in the wood stove. Evans Anderson began accessing trails in the section in approximately 1941. He also stated that his brother, Kennard Anderson, age 84, accessed the property by foot or, later, by ATV roughly three times per week over the length of his life.
On cross-examination, Evans Anderson was asked:
Q. You indicated earlier that you used the property consistently. Can you describe what you mean by consistently?
A. Well we used it—we used it for deer hunting. That was at the end of the summer or fall, and then the early spring, I mean not early spring but in—in the summer then there was berry picking. In the winter we—we used these trails for going in there to hunt rabbits, especially the snowshoe rabbit.
The state’s argument that respondents’ use of the land was not visible is brief and conclusory. It consists of one paragraph in its brief that states, in part: “For example, signs of motorized trail use for hunting or observing nature would not be distinguishable by the owner from trail use for berry picking. Thus, any hostile activities should not be considered to meet the visibility requirement.”
The supreme court has stated:
It is axiomatic that where a
burden has been imposed upon land sold, assuming the marks of the burden are
known to the purchaser or are open and visible and apparent on ordinary
inspection of the premises, the purchaser takes the title with the servitude
upon it. It has long been recognized in
Here, there is no
dispute that there were existing trails on section 25 when the state purchased
the land in 1989. Donovan Pietruszewski,
Area Wildlife Supervisor for the DNR and the state’s only witness at trial,
agreed that, based on his review of earlier aerial photographs, trails were in
existence in 1989. In addition, the August 15, 1989 Kittson
County Board of Commissioners’ approval of the state’s proposed acquisition
specifically states that “all existing trails or roads currently existing
. . . shall remain open to the public unless other provisions are
approved by the
Finally, the state claims that the district court erred in the scope of the prescriptive easement it granted because there was no evidence of respondents’ use of trail segment #5 or respondents’ use of the section during the early spring of the year. We disagree. Our review of the record confirms that the evidence sustains the district court’s findings. Respondent Michael Anderson testified, in response to a question about the family’s use of ATVs on cross-examination, “[W]e’d go out in the spring right after the snow, and it was kind of a continuous thing through deer season.” Respondent Douglas Anderson testified, “We are able to take a motor vehicle in there, mostly truck, a pickup as I say, pretty much year round.” And respondent Evans Anderson referred to trail #5 when he spoke of the “nice big trail” that provides hunting access from the east.
LANSING, Judge (dissenting)
establish a prescriptive easement, the claimant must prove use of the property
that is actual, open, continuous, exclusive, and hostile for the prescriptive
period of fifteen years.
The Andersons testified that they have used the property at issue for recreational and motorized hunting activities for years. The county board’s resolution approving the DNR’s purchase of the property provided “that all existing trails or roads currently existing on [the] lands shall remain open to the public unless other provisions are approved by the [c]ounty [b]oard.” Thus the Andersons, as members of the public, have full use of the existing trails or roads consistent with the policies of the wildlife management area. See Minn. Stat. § 86A.05, subd. 8 (2006) (discussing administration of wildlife management areas). The Andersons, however, seek to establish a prescriptive easement that permits them to use all-terrain and motor vehicles for hunting throughout the property. This use, which the Andersons maintain is permitted by a prescriptive easement, is inconsistent with the regulations of the wildlife management area. Because the evidence—as a matter of law—fails to satisfy the requirement of hostility, I disagree with the majority’s conclusion that this use is permitted by a prescriptive easement.
1971 statute is consistent with Minnesota’s longstanding policy “to encourage
and promote the use of privately owned lands and waters by the public for
beneficial recreational purposes.”
Minnesota’s policy of permitting recreational and hunting use has encouraged the efficient use of natural resources. This policy was even more compelling in the early 20th century, when natural resources were more widely available. Consistent with this policy, landowners were not forced to build fences or post “no-trespassing” signs in order to protect against the creation of an adverse interest by repeated recreational use of their property. Because the structure of Minnesota laws and our public policy has not permitted recreational easements to arise, landowners are not put in a position in which they would affirmatively have to confront hunters in order to preserve their property rights from the establishment of an adverse interest.
this case, the Andersons’ use of the land was permitted by statute and state
This standard supersedes a stricter standard
that is now limited to the facts of the specific case.
adverse possession may be established only by clear and positive proof based on a strict construction of the evidence, without resort to any inference or presumption in favor of the disseizor, but with the indulgence of every presumption against him. The burden of proving the essential facts which create title by adverse possession rests upon the disseizor. The evidentiary way of the disseizor is hard.
 Pietruszewski had no personal knowledge of any events prior to 2001.