This opinion will be unpublished and

may not be cited except as provided by

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




Shetek Baptist Camp, Inc.,



Ernest F. Yaeger, et al.,


Filed October 28, 1997


Klaphake, Judge

Murray County District Court

File No. C5-94-248

Joel C. Wiltrout, Lucht, Wiltrout & Ahlquist, 906 Third Avenue, Worthington, MN 56187 (for Respondent)

Paul M. Malone, Malone & Mailander, 2605 Broadway Avenue, Slayton, MN 56172-0256 (for Appellant)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.



Appellants Ernest F. Yaeger and others challenge the trial court's determination that respondent Shetek Baptist Camp, Inc. acquired title by adverse possession to certain real property formerly owned by Yaeger. Because the evidence supports the trial court's decision, we affirm.


This case concerns a boundary line dispute involving two adjoining tracts of land: "government lot 2," owned by respondent Shetek Baptist Camp, Inc. (the camp), and "government lot 3," owned by appellant Ernest Yaeger. Both lots are located in Murray County and are bordered on the north by Lake Shetek. A township road that runs north-south divides lot 2 to the west from lot 3 to the east. About 400 feet south of the lake, the road turns east and the camp's driveway turns west.

After Yaeger purchased lot 3 in 1984, he had it surveyed and discovered that the boundary line between the lots is not located on the township road but actually runs at a slightly northwest angle through lot 2. The camp sued Yaeger, claiming title by adverse possession. During trial the disputed property was limited to the area north of the township road, an area roughly 100 feet by 400 feet. The trial court ruled in favor of the camp, but after further appeal to this court, the case was remanded for further findings on the elements of an adverse possession claim. Shetek Baptist Camp, Inc. v. Yaeger, No. C0-95-2318 (Minn. App. July 9, 1996). This appeal follows the trial court's entry of judgment following remand.


To establish title by adverse possession, a claimant must present clear and convincing evidence of an actual, open, hostile, continuous, and exclusive possession for a period of 15 years. Nash v. Mahan, 377 N.W.2d 56, 58 (Minn. App. 1985); see Minn. Stat. § 541.02 (1994). This clear and convincing proof must be

based on a strict construction of the evidence, without resort to any inference or presumption in favor of the [claimant], but with the indulgence of every presumption against him.

Village of Newport v. Taylor, 225 Minn. 299, 303, 30 N.W.2d 588, 591 (1948). The claimant must prove each of the five elements of the claim. Id. at 303-04, 30 N.W.2d at 591.

We agree with the trial court's conclusion that the owner of lot 2 acquired title to the disputed property by adverse possession by 1948. Testimony at trial established that from 1917 to 1932, S.P. Anderson and his renter fenced in the disputed property, used it to pasture animals, and kept others from pasturing animals in the area. These possessory acts were consistent with "the character of the property, its location, and the purposes for which it [was] ordinarily fitted or adapted." Dean v. Goddard, 55 Minn. 290, 298, 56 N.W. 1060, 1063 (1893). Even though portions of the disputed property were not cleared and used to raise crops, this did not affect title because the whole property was used and managed as one body "according to the usual manner of business" in that locality. Murphy v. Doyle, 37 Minn. 113, 116, 33 N.W. 220, 222 (1887). Thus, S.P. Anderson acquired title to the disputed property by 1932.

Yaeger challenges the uncontradicted testimony of two elderly witnesses who testified about the disputed property's use from 1917 to 1948, apparently attacking their competence because of their ages and because of one witness's limited access to the land. The testimony of the two witnesses was strikingly similar, however, regarding landmarks and the use of the land. Further, photographs introduced at trial supported their testimony. We defer to the trial court's competency determination regarding these witnesses. See Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977) (witness competency determination is "peculiarly within the province of the trial judge").

Yaeger also claims S.P. Anderson's possession of the disputed property was not exclusive because a wooded area at the north end of the disputed property was at one time used as a park. On this point, one area resident testified that he heard that the wooded area had been used as a park. Another resident testified that 50 years earlier, or in approximately 1945, the area was used "somewhat * * * for fishing." When asked whether the public used the area, the resident answered, "I would -- yeah." However, the trial court apparently did not view the testimony of these residents as sufficient to establish the existence of a park. Further, during the mid-1940's when the one resident testified he had used the land for fishing, S.P. Anderson had already acquired the property by adverse possession because he and his successors had owned the farm for 28 years. See Fredericksen v. Henke, 167 Minn. 356, 361, 209 N.W. 257, 259 (1926) (title gained by adverse possession "is not lost by a cessation of possession, and continued possession is not necessary to maintain it"). Thus, others' use of the disputed property could have been permissive.

Yaeger further claims that S.P. Anderson's possession was not continuous because he was ill for several months and left the farm. Although Anderson left the farm for a few months, this fact alone did not break the continuity of possession. See Kelley v. Green, 142 Minn. 82, 85, 170 N.W. 922, 923 (1919) (short, temporary absences do not destroy continuity of possession). Despite his illness, Anderson continued his possession of the disputed property by maintaining the fences.

Yaeger further claims that he purchased the property in good faith with no notice of adverse possession and that he should therefore be protected by the Recording Act. We disagree. Adverse possession "extinguishes the right of the party having the paper title and vests a perfect title in the adverse holder." Ehle v. Prosser, 293 Minn. 183, 192, 197 N.W.2d 458, 463 (1972). Thus, because the camp continued S.P. Anderson's adverse possession of the disputed property, Yaeger may not claim that he received no notice of the camp's claim to the property. See, e.g., Costello v. Edson, 44 Minn. 135, 138-39, 46 N.W. 299, 301 (1890) (visible, open use or appropriation of land gives real owner notice of adverse or hostile claim).

Finally, Yaeger claims that the camp should be estopped from acquiring title to the disputed property because it did not intervene when Yaeger's son-in-law carried out a tiling project in the area. This issue was not raised before the trial court, and this court declines to consider it on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). This court notes, however, that Yaeger's equitable concerns were addressed by the trial court because the court ordered the camp to pay him $3,500 for the cost of the tiling project and granted him an easement to allow him to maintain it.