This opinion will be unpublished and

may not be cited except as provided by

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






Greg Toon, et al.,


Duluth Economic Development Authority, et al.,

Hansen’s Auto Service,


Filed December 4, 2007

Reversed and remanded

Crippen, Judge*


 St. Louis County District Court

File No. 69DU-CV-06-1195



Christopher Ames Dahlberg, Dahlberg Law Office, P.A., 915 US Bank Place, Duluth, MN  55802 (for appellants)


Michael E. Orman, Orman, Nord, Spott & Hurd Law Office, 1301 Miller Trunk Highway, Suite 400, Duluth, MN  55811 (for respondent)


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


U N P U B L I S H E D   O P I N I O N


            Appellants Greg and Jane Toon dispute the district court’s summary judgment dismissing their adverse possession claim directed at a strip of land adjoining their St. Louis County lot.  Because the record creates fact disputes that cannot be resolved by summary judgment, we reverse and remand.


            Appellants have owned Lot 18 of a platted acreage, facing Anderson Road in Duluth, since 2000.  They contend that, at least since 1989, they and three preceding owners of Lot 18 have adversely possessed a strip of land 21.5’ wide and 140’ long from Lot 19, which adjoins their lot on the west.  Lot 19, lying near State Highway 53, still further to the west, has had at least eight owners since 1989 and is now the subject of plans for commercial development.

            The State of Minnesota purchased Lot 19 in 2004 and also obtained a temporary easement over appellants’ driveway in 2005, in connection with expansion of the nearby highway.  Unneeded portions of the acquired land, including a portion of Lot 19, were subsequently conveyed to respondent Hansen’s Auto Service, which planned to construct a new service station on the property.  To proceed with its development plans, respondent sought variances and zoning changes from the City of Duluth, which were approved in April 2006. 

            In May 2006, appellants commenced this adverse possession lawsuit.  Respondent moved to dismiss the complaint for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e).  To support their claim, appellants produced affidavits asserting that Lot 18 owners have regularly used the adjoining 21.5’ by 140’ strip as their own.  The district court dismissed appellants’ claim against respondent, concluding that the adverse possession claim failed because of inadequate evidence that it was open, continuous, and exclusive.  The court also held that appellants were estopped from alleging adverse possession because they did not assert their claim of ownership until after commercial development of the Lot 19 site was in progress and significant expense had been incurred by respondent. 


            Because the district court considered matters outside the pleadings, it treated respondent’s motion to dismiss as one for summary judgment.  See Minn. R. Civ. P. 12.02.  On appeal from summary judgment, this court is to review de novo whether a genuine issue of material fact exists and whether the district court erred in its application of the law.  STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002).  We are to view the evidence in the light most favorable to the party against whom judgment was granted.  Id. at 76-77. 

            Summary judgment is appropriate “when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  No genuine issue for trial exists “[‘w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.’”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  A genuine issue for trial exists when the nonmoving party “presents sufficient evidence to permit reasonable persons to draw different conclusions.”  Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006). 

             “The burden rests upon the disseizor to come forward with the essential facts establishing the elements of adverse possession.”  Stanard v. Urban, 453 N.W.2d 733, 735 (Minn. App. 1990), review denied (Minn. June 15, 1990).  And the evidence “must be strictly construed, without resort to any inference or presumption in favor of the disseizor, but with every presumption against him.”  Ganje v. Schuler, 659 N.W.2d 261, 266(Minn. App. 2003) (quotation omitted).

            “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 show adverse possession, the disseizor must show, by clear and convincing evidence, an actual, open, hostile, continuous, and exclusive possession for the requisite period of time which, under our statute, is 15 years.”  Ganje, 659 N.W.2d at 266 (citing Ehle v. Prosser, 293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972)); see also Minn. Stat. § 541.02 (2006) (requiring 15 years of possession before an adverse possession claim can be maintained).  

            Appellant’s evidence invites the skepticism shown by the district court’s summary judgment.  First, their proof of both the continuity and adversity of use by Lot 18 owners is hampered by the varying uses of multiple owners over the years in question.  To meet their burden, they have submitted many, scattered pieces of evidence suggesting an array of disputed indications of activities on and around the 21.5’ x 140’ parcel of land over the critical period beginning in 1989 and ending when Lot 19 was purchased by the State of Minnesota in 2004; this evidence dealt with the activity of four owners of Lot 18 and at least five next-door neighbors on Lot 19.  As the district court’s analysis suggests, much of this evidence invited concern about gaps in the picture of continuous, hostile use.  The evidence was especially wanting for the period from 1989 to 1994, when appellant’s Lot 18 was owned by Elaine Sager (prior to 1990) and Orville Sunde (1990 to 1994).

            Second, all of the alleged uses of the strip invite doubts as to whether these events were seasonal or otherwise episodic and whether they affected merely a lesser part of the 140-foot strip.  Cf. Engquist v. Wirtjes, 243 Minn. 502, 505, 68 N.W.2d 412, 415 (1955) (requiring a disseizor to use and occupy the entire area claimed to be adversely possessed); Stanard, 453 N.W.2d at 736 (concluding that using land to store equipment during winter months and mowing land during the summer did not establish title by adverse possession because such acts were too sporadic and occasional).  Appellants’ evidence showed instances of mowing grass, movement and parking of vehicles, holding piled snow, and occasional swings of golf clubs.  The evidence included no suggestion of fences (temporary or permanent), walls, hedges, or other lasting segregation of the strip from the rest of Lot 19.  Cf. Romans v. Nadler,217 Minn. 174, 180-81, 14 N.W.2d 482, 486 (1944) (examining the insufficiency of evidence on cutting grass and trimming hedges); Ganje, 659 N.W.2d at 267 (affirming conclusion that acts on a disputed area were sufficiently actual and open where respondents had planted trees, shrubs, and flower bulbs).  Appellants’ witnesses referred to an evergreen tree on the Lot 19 side of the strip, but there is no evidence that this single, front-yard tree, nearly in line with the closest side of the Lot 19 home, was planted to suggest a boundary line. 

            All of this being said, the district court dismissed the case without trial by disregarding sweeping evidence that, if accepted, would permit a finding of continuous and hostile use; the court evidently concluded that some of this evidence was not as “persuasive” as more particular observations by other affiants. 

            Affiant Clarence Thorne, who lived for over 30 years across the street from Lot 18 on Anderson Road, observed that the owners of both Lots 18 and 19 “always treated the pine tree sitting between the two homes [on the Lot 19 side of the claimed strip] as the lot line.”  Charlie Plys, another neighbor living across the street from 1988 to 2002, reported that:

            During the entire time we lived on Anderson Road, the owners of [Lot 18] used the side lot on the west as their own.  I always remember boats and cars parked there.  . . .  The owners of [Lot 18] have just always been very active on that side.  The owners of [Lot 19] . . . never seemed to carry on any activity farther than the eastern edge of their house. 


General as the evidence is, it serves to open the door for appellants’ opportunity to prove their adverse possession claim by clear and convincing evidence at trial.  Although more particular observations invite misgivings on appellants’ ability to meet their ultimate burden of persuasion, the matter must be remanded for trial because material issues of fact are established by affidavits of neighbors Thorne and Plys.

            Respondent claims appellants’ numerous items of evidence on use of the strip between 1994 and 2004 are conclusively disproven.  Before appellant bought the parcel in 2000, it was owned by Daniel Kreidler for six years.  Respondent contends that Kreidler’s affidavit permits summary judgment, because Kriedler lacked any intent to possess the strip.

            Kreidler’s affidavit is disputed on his use of the strip, but he reported without dispute that his lot had been surveyed and that he knew the correct boundary line, did not claim the strip after the survey was done, did not use the claimed strip “as [his] own,” “did not exclude occupants of Lot 19 from the strip,” and “did not consider the strip as in [his] exclusive possession.”  The pine tree at the front of his neighbor’s lot, he reported, “did not mark the boundary line.”  Confirming affidavits addressed the situation before Kreidler owned the property:  Lot 19 owners, Paul Mettner in 1991 and Todd Torvinen between 1993-94, report that they treated the strip as their own and did not permit its use by others.

            Respondent asserts that the undisputed absence of any subjective intent of Daniel Kriedler to claim title to the strip precludes appellants’ claim of adverse possession.  Although precedents document the importance of uses that show the disseizor’s intention, it is well established that “[s]ubjective intent to take land adversely is not essential in this state” when the evidence shows uses whereby all others are intentionally excluded.  Gandy Co. v. Freuer, 313 N.W.2d 576, 578 (Minn. 1981).  Kriedler’s testimony is centrally important, but the evidence shows material questions of fact on his uses of the strip. Whether or not contrary evidence appears “persuasive” after examining respondent’s evidence, it is sufficient to preclude a summary judgment and require findings of fact on the conflicting evidence. 

            Respondent asserts and the district court agreed that appellants’ claim must also fail on equitable estoppel grounds, because it was not asserted earlier, especially when appellants had dealings with the State of Minnesota in 2004, when respondent subsequently sought zoning approval for changes in the use of Lot 19, and when development of Lot 19 began.  But the record includes evidence that state officials and others knew of appellants’ claims, at least generally, and this evidence invites conflicting inferences on the claim of estoppel.  See Froslee v. Sonju, 209 Minn. 522, 524, 297 N.W. 1, 3 (1941) (“Estoppel cannot be invoked by a party who knew the facts or was negligent in not knowing them.”).  These conflicting inferences create fact questions that preclude summary judgment.

            Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.