This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).


Jean A. Nielsen,


Victor Gammell, et al.,

Janet Romness, et al.,

Filed September 3, 1996
Huspeni, Judge

Olmsted County District Court
File No. C9941888

Thomas Healy, Healy Law Offices, P.A., 119 Sixth St. S.W., Rochester, MN 55902-3338 (for Respondent)

Daniel J. Heuel, Muir, Heuel, Carlson & Spelhaug, P.A., 404 Marquette Bank Bldg., P. O. Box 1057, Rochester, MN 55903 (for Appellants)

Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Holtan, Judge. 1


The trial court concluded that respondent had acquired a portion of appellants' property by adverse possession and that because this is a dispute over a boundary, the statute precluding those who have not possessed property within the past 15 years from bringing an action to recover it applies. Appellants challenge the denial of their motions for a new trial or in the alternative for an amended order for judgment. Because we conclude that there is evidence to support the trial court's findings that each of the elements of adverse possession has been met, we affirm.
Respondent Jean Nielsen has lived in her home on the Zumbro river since the early 1970s, when she and her ex-husband, Virgil Nielsen, purchased the property. They converted the cabin to a year-round home, installed a septic system, and cared for the yard around the house. Their lawn extends about 40 feet to the east of the house. This area had a fireplace and horseshoe pit when they acquired the property, but Virgil Nielsen removed them and seeded the land. He mowed the lawn up to the edge of the woods east of the property. Respondent purchased the property from her ex-husband in 1991, following the dissolution of their marriage.
Respondent's lot, lot 10, is one of a series: it is bordered on the west by lot 11, another residential property, and on the east by lots 1 through 9. Appellants Victor and Linda Gammell purchased these nine lots, which have always been taxed as a single unit, in 1993. They did not check the boundaries or view all the property before their purchase.
Later in 1993, a survey revealed that both the western and the eastern boundaries of respondent's property were actually about 35 feet west of where she and the previous owners of her property had believed them to be. Part of the house belonging to her neighbor on lot 11 actually stood on respondent's land, and respondent's property extended only a few feet east of respondent's house. Most of the yard she and her husband maintained east of the house was in fact on lot 9.
Respondent brought an action for a determination that she had acquired the land east of her house by adverse possession. The trial court heard extensive testimony and personally inspected the property with the parties. Appellants moved for a directed verdict on the grounds that Minn. Stat. § 541.02 (1992) barred respondent's action. The trial court denied this motion and determined that respondent had acquired the maintained land around her house--a portion of lot 9. Appellants then moved unsuccessfully for a new trial or in the alterative for amended findings of fact, conclusions of law and order for judgment.

1. Adverse Possession
To prevail in an adverse possession claim, the disseizor must show by clear and convincing evidence hostile, actual, open, continuous, and exclusive possession of the land for the 15-year period required by our statute of limitations.

Grubb v. State , 433 N.W.2d 915, 917-18 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989). The trial court found that respondent met each of the five elements necessary to acquire land by adverse possession. The factual findings of a trial court sitting without a jury will not be set aside unless clearly erroneous. Id. at 917. While the disseizor has the burden of proving each of the five elements of adverse possession by clear and convincing evidence, id. , once a trial court has found adverse possession, the record owners have the burden of showing that "there is no evidence reasonably tending to sustain the trial court's findings." Nash v. Mahan , 377 N.W.2d 56, 57-58 (Minn. App. 1985) (citing Gifford v. Vore , 245 Minn. 432, 434, 72 N.W.2d 625, 627 (1955)). Therefore, appellants must establish that no evidence reasonably tends to sustain the trial court's finding of the five elements of adverse possession.
A. Was the possession hostile?
The trial court found that the disputed property was treated in all respects like the rest of respondent's yard, maintained and used for family recreation, and tied in with the rest of her property, in contrast to the rest of appellants' land, which is unimproved, vacant woods.
Appellants cite Stanard v. Urban , 453 N.W.2d 733 (Minn. App. 1990), to argue that mowing grass and using land for family recreation is not adequate to establish adverse possession. Id. at 735. Stanard relies on Romans v. Nadler , 217 Minn. 174, 14 N.W.2d 482 (1944):
It is a well-known fact that many thousands of homeowners have no boundary fences and that adjoining owners occasionally trespass on their neighbors' lands in cutting grass, trimming hedges, and the like. * * * If such trespasses should be held to constitute a basis for prescriptive rights, every adjoining landowner * * * would acquire * * * an easement in his neighbors' lands to the extent of such trespasses. * * * The trespasser should be required to show by some additional acts that the entry is hostile and under claim of right.

Romans , 217 Minn. at 180-181, 14 N.W.2d at 486, quoted in Stanard, 453 N.W.2d at 736. The activity described in Romans involves trespasses of a few feet that could arguably create an easement; Romans envisions a situation where the line between two identically or similarly maintained properties is indistinct. Romans is readily distinguishable from the situation here, where respondent and her predecessors were mowing and maintaining a large area of property they believed to be their own, not merely stepping onto a neighbor's property in the course of maintaining their own. Stanard is also distinguishable in that there the property had been occupied as a permanent home for only 13 years prior to the commencement of the adverse possession action; here, the property had been occupied year-round for 22 years.
Stanard distinguishes Nash , which concerns the amount of mowing and maintenance necessary to establish adverse possession. Stanard , 453 N.W.2d at 736.
Nash mows a two or three foot area abutting the patio to the east, and mows, grows some flowers, and picks weeds in the area easterly of the stairs. He mows the area across the road up to the hill. The hill is in a wild and natural state.

Nash, 377 N.W.2d at 57. The land surrounding Nash's patio, which was mowed, weeded, and used for flowers, was held to have been acquired by adverse possession. Id . at 58. In contrast, the court found the evidence insufficient to hold that Nash had acquired the land across the road from his home, which he mowed only a few times a year, id. , and held that Nash had not acquired the hill, because land in a wild and natural state cannot be acquired by adverse possession. Id. (citing Gifford , 245 Minn. at 437, 72 N.W.2d at 629).
Here, Virgil Nielsen testified that he had dismantled a fireplace and a horseshoe pit, seeded the land where they had been to make it part of his lawn, tethered and housed a goat on the land, and in every respect treated the area as part of his own yard. As in Nash , the district court's finding that respondent's possession was hostile is not clearly erroneous.
B. Was the possession actual?
The trial court noted that since 1976 respondent and her predecessors in ownership of what was assumed to be lot 10 had used and maintained part of lot 9, using and later removing a fireplace and horseshoe pit, keeping animals, growing flowers, trimming trees, constructing steps and a sidewalk that extended onto lot 9, and mowing grass. The court also noted that these uses were consistent with the disputed property belonging to respondent and inconsistent with it being owned by appellants, whose land was unimproved woods. The disseizor must intend "to treat the property in dispute in a manner generally associated with the ownership of similar type property in the particular area involved." Ehle v. Prosser , 293 Minn. 183, 190, 197 N.W.2d 458, 462 (1972). Respondent meets this standard.
C. Was the possession open?
The trial court found that the possession was open and notorious because the legal owner of lot 9 was aware of various other uses of the property. 2 Because respondent and her ex-husband maintained the property as part of the lawn and yard surrounding their home, their use was indisputably open.
D. Was the possession continuous?
The trial court found that owners of lot 10 began using lot 9 at least as early as 1967, when the owner who preceded Virgil Nielsen acquired it, continuing through to Nielsen, who bought it in 1970 and lived on it with respondent until 1991, when she purchased it from him. Appellants do not argue that the possession was not continuous.
E. Was the possession exclusive?
The trial court found that respondent and her ex-husband took and held possession of the disputed property the same way they took and held possession of their own property and possessed it to the exclusion of all others. Appellants argue that because respondent and her husband did not post "No Trespassing" signs and sometimes permitted neighbor children to use the land, their possession was not exclusive. However, there is no indication that respondent and her ex-husband either treated the disputed property differently from the way they treated their own property or treated it as if it were publicly owned land. See Merrick v. Schleuder , 179 Minn. 228, 232, 228 N.W. 755, 756-57 (1930) (exclusive possession requires that the disseizor use the land as its owner, not as a member of the public).
Appellants have not met their burden of showing that no evidence reasonably tends to sustain the trial court's findings of adverse possession.
2. Minn. Stat. § 541.02
Minn. Stat. § 541.02 provides in relevant part that:
No action for the recovery of real estate or the possession thereof shall be maintained unless it appears that the plaintiff * * * was seized or possessed of the premises in question within 15 years before the beginning of such action.

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 *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.

The provisions of paragraph two shall not apply to actions relating to the boundary line of lands, which boundary lines are established by adverse possession.

Appellants argue that because respondent has never paid taxes on the property and this is not a boundary dispute, appellants' motion for a directed verdict that they own the property should have been granted. The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd ., 369 N.W.2d 527, 529 (Minn. 1985). However, the fact findings of a trial court sitting without a jury will not be set aside unless clearly erroneous. Grubb , 433 N.W.2d at 917. Here, the application of the statute depends on the trial court's finding that this was a dispute over a boundary.
Appellants cite Grubb to support their argument that this is not a boundary dispute. In Grubb , the disseizors were held not to have proved
that their adverse possession was merely establishing a boundary line. Where one landowner adversely possesses approximately 13 acres of his neighbor's 16-acre parcel, the parcel, not merely the boundary, is at stake.

Id. at 919. Appellants argue that because respondent occupied much of lot 9, this is not a boundary dispute. However, as the trial court found, appellants, their predecessors, respondent, and respondent's predecessors were actually mistaken as to the boundary of lot 9. Lot 9 was always owned and transferred not as a unit but as a part of lots 1-9: the west boundary of appellants' land was the west boundary of that entire 9-lot parcel. Grubb is distinguishable because respondent here adversely possessed only a small percentage of appellants' parcel of land, and that adverse possession occurred because of confusion over the boundary.
Because this is a boundary line dispute, the fact that respondent did not pay taxes on the property is irrelevant. Appellants have failed to show either that they are entitled to assert ownership of property they have not possessed within 15 years of bringing an action or that there is no evidence reasonably tending to sustain the trial court's finding of respondent's adverse possession. 3


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

2 The disputed property was also used as the site of the septic tank and drain field for respondent's residence. The trial court relied in part on the septic tank and drain field in its findings that the possession was open and that it was actual. Appellants dispute this, arguing that because a septic system is not visible it cannot constitute open possession. We conclude that this reliance was unnecessary and base our decision on factors other than the septic system.

3 We note that the trial court amended its conclusion of law to state that respondent would have a further survey completed to obtain an accurate metes and bounds description. We are therefore unpersuaded by appellants' argument that a remand is necessary to obtain an accurate metes and bounds description.