This opinion will be unpublished and

may not be cited except as provided by

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




Arnie Kvaal, et al.,



Charles Porter and Rebecca Porter individually,

and as co-trustees of Charles E. Porter

and Rebecca S. Porter Trust,


Filed May 5, 1998


Crippen, Judge

Chippewa County District Court

File No. C295369

Cletus J. Frank and M. Barry Darval, Neeser, Darval, Nelson & Wermerskirchen, P.A., 1101 South First Street, P.O. Box 1175, Willmar, MN 56201 (for respondents)

Stephen L. Stennes, Prindle, Maland, Sellner, Stennes and Knutsen, Chartered, 102 Parkway Drive, P.O. Box 591, Montevideo, MN 56265 (for appellants)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.



Appellants dispute the trial court's findings of fact and the court's award of a judgment of adverse possession in favor of respondents. Because the record supports the findings, we affirm.


Appellants are the owners of farmland in a partly developed section of land on the east edge of the City of Montevideo, immediately south of an airport that serves the area. On a north/south road intersecting the middle of the section, a number of large residential lots have been developed on the west side of the road. Respondents own one of these lots, with 165 feet north/south dimensions and 264 feet east/west dimensions. The back of respondents' lot (165 feet long), its west side, abuts on appellants' farmland. The parties dispute ownership of a strip of land between the backside of respondents' lot and a line running from a point 17 feet beyond the northwest corner of the lot to a point 13 feet beyond the southwest corner of the lot.

Respondents purchased their lot in 1979. Evidently, the property was already developed at that time with a residential dwelling. The trial court found that (a) respondents used the disputed strip from 1979 to 1995, principally as a garden; (b) respondents tilled the north half of the strip in 1979 and removed brush from the south half in preparation for later use; (c) the strip was within an area bounded on the northwest corner by a green metal post and on the southwesterly part by a row of Chinese Elm trees; (d) in 1982, a currently existing square wooden post was placed at the southwest corner of the strip and that this location was at the corner of the parcel previously used by respondents; and (e) beginning in 1991, respondents planted two rows of spruce trees along the westerly edge of the strip. Premised on their usage for a period of 15 years, the trial court concluded that respondents gained title to the strip by adverse possession.


The party claiming title through adverse possession bears the burden of proving by clear and convincing evidence "actual, open, hostile, continuous, and exclusive possession of the property for 15 years." Stanard v. Urban, 453 N.W.2d 733, 735 (Minn. 1990) (citations omitted), review denied (Minn. June 15, 1990).

The law directs trial courts to carefully protect landowners' interests. The evidence is strictly construed and must "amount to clear and positive proof before title by adverse possession will be granted." Id. Furthermore, in evaluating evidence of actual use, the court must resolve all inferences in favor of the landowner and not indulge any inferences or presumptions in favor of the adverse possessor. Lechner v. Adelman, 369 N.W.2d 331, 334 (Minn. App. 1985) (citation omitted), review denied (Minn. Aug. 29, 1985); see Alstad v. Boyer, 228 Minn. 307, 311, 37 N.W.2d 372, 375 (1949).

Notwithstanding the mandate for trial court caution on the topic, the appellate courts are not to disturb the trial court's adverse possession findings "unless the evidence taken as a whole furnishes no substantial support or when the evidence is manifestly or palpably contrary to the findings." Weis v. Kozak, 410 N.W.2d 903, 905 (Minn. App. 1987) (citing Engquist v. Wirtjes, 243 Minn. 502, 506, 68 N.W.2d 412, 416 (1955)). The appellant bears 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).

Appellants attack the sufficiency of the evidence to permit findings that locate the northwest and southwest corner of the disputed strip. They contend that the posts were not in place in 1979, respondents otherwise failed to identify the width of their alleged encroachment, and as a result the trial court should not have given them title to any of appellants' land.

The trial court found that the green metal post in the northwest corner of the strip had been there since 1979. The evidence in the record supports that finding. Respondent Barbara Kvaal testified at trial that the green post was in place when respondents purchased the lot, because at that time they believed the post marked the northwest corner of their lot.

Appellants contend that the trial court overlooked the testimony of their former tenant, who stated that he did not observe the post in spite of the fact that he plowed at a point where the post is now located. Given the trial court's prerogative to judge the reliability and credibility of the testimony and taking into account the direct evidence of the existence of the post and the circumstantial evidence suggesting that the plow line was west of the post, we cannot say the court clearly erred in rejecting the tenant's testimony. See Sefkow v. Sefkow, 472 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to trial court credibility determination).

Although the southwest post was not in place in 1979, the trial court found that the post was located at a place marking the west edge of the area of use, and there is no evidence that this finding is erroneous. In fact, the evidence shows that the wooden post was placed about three feet east of the area actually possessed prior to that time.

Appellant contends that there is weak evidence of use during 1979, 1980, and 1981, and that there was a gap in usage beginning in 1985. The evidence in the record clearly supports the trial court's findings that respondents used the strip throughout the entire adverse possession period, from 1979 to 1995. In 1979, they cleared and tilled the strip to prepare for the garden that they planted in the spring of 1980. Respondents' son used the garden for his 4-H projects from 1980 through 1985. Respondents continued to use the strip for gardening in the following years up until 1995. In addition, respondents used the strip to raise chickens from 1981 through 1990 and periodically stored farm equipment on the strip. In sum, there is substantial support for the trial court's finding that respondents satisfied the use requirement.

Finally, appellants contend that the trial court's weighing of the evidence reflects an error in applying the burden of proof. The mandate for trial court caution does not suggest that the court cannot determine the credibility of witnesses and the reliability of evidence such as to disregard the recollections of the appellants' witnesses. The burden of proof does not require the court to reject direct evidence in favor of testimony for appellants or inferences from that testimony. There is nothing in the record to suggest that the trial court applied the wrong standard of proof and the record includes evidence sufficient to constitute clear and positive proof of facts justifying its award of title by adverse possession to respondents.