This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1991

Jacob K. Friesen, et al.,

Appellants,

vs.

Myrtle Droneck, et al.,

Respondents.

Filed May 6, 1997

Affirmed

Schumacher, Judge

Wright County District Court

File No. C195124

Robert M. Pearson, Robert M. Pearson Law Office, 13005 Main Street, Rogers, MN 55374 (for Appellants)

Jan C. Larson, Juhl S. Halvorson, Johnson, Larson & Peterson, P.A., 908 Commercial Drive, Buffalo, MN 55313 (for Respondents)

Considered and decided by Schumacher, Presiding Judge, Parker, Judge, and Huspeni, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

In the trial court, appellants Jacob K. and Ardith L. Friesen unsuccessfully brought an action to quiet title to certain land, claiming they had adversely possessed it. On appeal, the Friesens challenge the trial court's denial of their motion for a new trial, contending the evidence does not support the trial court's decision. We affirm.

FACTS

The Friesens and respondent Myrtle Droneck are neighbors. A piece of lake-shore property known as Tract A separates the parties' houses. Myrtle Droneck is the record owner of Tract A.

In 1973 or 1974, the Friesens installed a swing set on Tract A. Myrtle Droneck's late husband, Lawrence Droneck, told the Friesens that the swing set was on the Dronecks' property, but gave the Friesens permission to leave it there. During the winters from 1973 to 1994, the Friesens stored their dock, boat, and boat lift on Tract A. According to Myrtle Droneck, the Friesens asked permission to store the items the first year, but then continued to store them on Tract A without asking permission each year.

In 1976, the Friesens made major landscaping improvements to their land as well as to a portion of Tract A. Myrtle Droneck testified that the Friesens sought permission to cross Tract A with utility vehicles to make the improvements. The Friesens laid sod and planted shrubbery on Tract A. In 1988, the Friesens topped trees on their property and on Tract A. Myrtle Droneck testified that Jacob Friesen sought permission to top the trees on Tract A.

The Friesens mowed Tract A and kept it clean by removing debris from it. Lawrence Droneck also mowed Tract A, and after his death, Myrtle Droneck hired others to mow it. Both the Friesens and the Dronecks used Tract A for social gatherings.

In May 1994, Myrtle Droneck sent a letter to the Friesens, asking them to remove their belongings from Tract A. The Friesens complied, removing all of their items except the swing set. The Friesens then commenced a quiet title action, claiming they obtained title to Tract A by adverse possession. A court trial was held, and the court found that the Friesens failed to prove adverse possession. The Friesens moved for amended findings of fact or a new trial. The court denied the Friesens' motion, and they appeal.

D E C I S I O N

The Friesens state that this appeal is from the order denying their motion for amended findings of fact, conclusions of law, or a new trial. However, an order denying a motion for amended findings is not appealable. Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974). When a party purports to appeal from an order denying an alternative motion for amended findings or a new trial,

[o]nly that part of the order denying a new trial is reviewable on this appeal. However, on such review, any finding of fact may be challenged as not sustained by the evidence.

Graphic Arts Educ. Found., Inc. v. State, 240 Minn. 143, 144, 59 N.W.2d 841, 843 (1953) (footnotes omitted). The rules of civil procedure allow for a new trial when the decision "is not justified by the evidence." Minn. R. Civ. P. 59.01(g). When a new trial motion is made following a court trial, the decision should be affirmed on appeal "if the findings are reasonably supported by the evidence." Parrish v. Peoples, 214 Minn. 589, 597, 9 N.W.2d 225, 229 (1943) (reviewing, in context of motion for new trial, findings made by court); see also Minn. R. Civ. P. 52.01 (findings of fact shall not be set aside unless clearly erroneous, with due regard given to trial court's opportunity to judge credibility of witnesses); Connolly v. Nicollet Hotel, 258 Minn. 405, 407, 104 N.W.2d 721, 724 (1960) (generally, denial of motion for new trial will be reversed only if trial court clearly abused its discretion).

To establish adverse possession of land, the disseizor must demonstrate by clear and convincing evidence an actual, open, hostile, continuous, and exclusive possession of the land for 15 years. Minn. Stat. § 541.02 (1996); Roemer v. Eversman, 304 N.W.2d 653, 653 (Minn. 1981). Title by adverse possession should not be granted unless the evidence, strictly construed, amounts to clear and positive proof. Simpson v. Sheridan, 231 Minn. 118, 120, 42 N.W.2d 402, 403 (1950).

The evidence here supports the trial court's decision that the Friesens failed to prove positively that their use of Tract A was actual, open, hostile, continuous, and exclusive. First, there was evidence that the Friesens' possession was not continuous. A disseizor fails to show continuous possession if he or she at any time acknowledges the owner's title to the land before the 15-year time period has run. Stanard v. Urban, 453 N.W.2d 733, 736 (Minn. App. 1990), review denied (Minn. June 15, 1990). On more than one occasion, the Friesens acknowledged Myrtle Droneck's title to the land before the 15-year time period ran. In 1973, the Friesens asked to store their dock and boat on Tract A and continued to share the items there every winter after that. See Weis v. Kozak, 410 N.W.2d 903, 906 (Minn. App. 1987) ("When use of property begins as permissive, the continued use is also deemed permissive until the contrary is affirmatively shown."). In 1976, the Friesens asked to use Tract A for access to their back yard and beach area. In 1988, they asked if they could top some trees that were located on Tract A. The Friesens further acknowledged Myrtle Droneck's title to Tract A by removing almost all their property from the land after they received her May 1994 letter.

Second, there is evidence that the Friesens did not have exclusive possession of Tract A. Possession is exclusive if the possessor holds the land as his or her own with the intent to exclude all others. Thomas v. Mrkonich, 247 Minn. 481, 484, 78 N.W.2d 386, 388 (1956). Myrtle Droneck testified that her late husband mowed Tract A and that after his death she hired others to mow it. Chad Munsterteiger testified that Myrtle Droneck hosted church groups on Tract A. Bradley Hohl testified that Myrtle Droneck kept her boat on Tract A. Lillian Schroeder testified that she and the Dronecks walked on and fished off of Tract A.

In their posttrial motion, the Friesens argued for the first time that even if adverse possession did not give them fee simple ownership of Tract A, they should at least be granted the northern portion of Tract A or a prescriptive easement across Tract A. The trial court denied the motion with respect to these issues, finding that the Friesens were relying on new theories of recovery in their posttrial motion. We find no abuse of discretion in the trial court's decision on this issue. See Antonson v. Ekvall, 289 Minn. 536, 539, 186 N.W.2d 187, 189 (1971) (claim that is not specifically pleaded, litigated, or presented at trial may not be raised for first time in motion for new trial).

Affirmed.