This opinion will be unpublished and

may not be cited except as provided by

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




Gary W. Piotrowski,



Leander Bretz, et al.,


Filed September 15, 1998


Shumaker, Judge

Benton County District Court

File No. C3-95-1105

Edward J. Laubach, Jr., Hall & Byers, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for respondent)

Robert B. Fine, 4524 Excelsior Boulevard, Suite C, St. Louis Park, MN 55416 (for appellants).

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



Appellants, Leander Bretz and Lillian C. Fritz, appeal from a judgment awarding certain land to respondent, Gary W. Piotrowski, by adverse possession, contending that the evidence was insufficient to support the award. Respondent challenges the trial court's denial of his claim to additional land through adverse possession or boundary by practical location. We affirm.


In 1971, respondent bought the northeast quarter of the northeast quarter of a section of land in Benton County, Minnesota, from his parents. He had used the property since 1970 while his parents owned it. In l989, appellant Bretz bought the northwest quarter of the northeast quarter of that same section. Each of these contiguous parcels contains approximately 38 acres.

The parties dispute the ownership of a strip of land approximately 82 feet wide that runs north and south between the western boundary of appellants' parcel and the eastern boundary of respondent's parcel. The disputed strip is heavily wooded and undeveloped, except for a gravel road 12 feet in width through its southeast corner. This is an extension of a road that runs diagonally from the northeast corner to the southwest corner of respondent's property, crosses the disputed strip and the eastern boundary line of appellants' parcel, and continues in a southerly direction onto other land that respondent owns. The road separates a portion of the southeast corner of appellants' parcel from the rest of that land. At the southerly edge of the southeast corner of appellants' parcel there is a rock pile. Until June 1994, there was also a short section of the remnant of a two-wire fence along the disputed strip near the rock pile. The rock pile and the fence remnant preexisted respondent's use and ownership of his parcel of land.

Since 1970, respondent has cleared brush on the strip about five times and has taken trees from and replanted trees on the strip. Despite these activities, the strip has remained substantially in its natural state.

Since 1971, respondent has maintained, improved and developed the road by regularly clearing brush and vegetation from and alongside it; installing drainage ditches on the sides; considerably widening it, building it up, grading it and periodically adding gravel to it; snowplowing it; and using it continuously for business and recreational purposes. Appellants have not improved, maintained or ever used the road, nor is there evidence that any members of the public have ever used the road.

The trial court awarded to respondent title by adverse possession of the road, 20 feet west of the center of the road, and the disputed property east of the road; and denied respondent's claim of title to the remainder of the disputed strip.


Appellants contend that the facts, which they do not dispute, are insufficient to support an award of title to respondent by adverse possession. They argue that, at best, respondent is entitled to a road easement. Respondent argues that he is entitled not only to an award of title to the road but to the remaining disputed property as well either through adverse possession or through the establishment of boundary by practical location.

Our review is limited to the question of whether the evidence sustains the trial court's findings of fact and conclusions of law. See Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). Adverse possession must be proved by clear and convincing evidence. Grubb v. State, 433 N.W.2d 915, 917 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989). We view the evidence in a light most favorable to the prevailing party. See State, Dept. of Pub. Welfare v. Thibert, 279 N.W.2d 53, 56 (Minn. 1979) (appellate court must view evidence and its reasonable inferences in light most favorable to prevailing party). Once the trial court has found adverse possession, challengers 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)).

Adverse possession is established by proof of hostile, actual, open, continuous, and exclusive possession of land for 15 years or more. Grubb, 433 N.W.2d at 917-18.

Possession is "hostile" when the possessor manifests intent to claim ownership. Ehle v. Prosser, 293 Minn. 183, 190, 197 N.W.2d 458, 462 (1972). An intent to claim ownership may be manifested by ordinary acts of ownership, such as occupying, maintaining, using and controlling the property. See Thomas v. Mrkonich, 247 Minn. 481, 78 N.W.2d 386 (1956) (construction and constant use of an encroaching outdoor stairway was sufficient to show hostile possession); Romans v. Nadler, 217 Minn. 174, 176, 14 N.W. 2d 482, 484 (1944) (act of fencing, occupying and using a strip of owner's land manifested possessor's intent to claim adversely to owner). Evidence of hostile possession may also take the form of activities performed by the possessor for his own benefit on the land that would constitute the basis for action against the possessor by another claiming entitlement to the land. See Hartman v. Blanding's Inc., 288 Minn. 415, 419-20, 181 N.W.2d 466, 469 (1970). In order to be hostile, possession cannot be permissive, but an owner's passive acquiescence and failure to assert paramount possessory rights do not constitute permission. Ehle, 293 Minn. at 191, 197 N.W.2d at 463.

Actual and open possession requires unconcealed, visible possessory acts upon the land such that the owner might be apprised that another is claiming rights in the land. Hickerson v. Bender, 500 N.W.2d 169, 171 (Minn. App. 1993).

Possession becomes exclusive when one enters and occupies land as if it were his own and with the right to exclude others from its use and possession. Thomas, 247 Minn. at 484, 78 N.W.2d at 388. When one makes extensive improvements and regularly maintains and uses the land as his own, he manifests his intent to claim ownership to the exclusion of all others. See Merrick v. Schleuder, 179 Minn. 228, 232, 228 N.W. 755, 756 (1930) (exclusive possession requires that the disseizor use the land as its owner, not as a member of the public).

Continuous possession requires that the occupation of the land be ongoing and without cessation or interruption. See Rice v. Miller, 306 Minn. 523, 525, 238 N.W.2d 609, 611 (1976) (where owner regained control of property and took steps to prohibit use by others, he broke the continuity of adverse use). Possession "must be continuous within the nature and character of the right claimed * * * ." Id.

The record supports the trial court's conclusion that respondent acquired title by adverse possession to the road itself, 20 feet from the center to the west of the road, and the disputed land east of the road. Respondent's visible, continuous acts of marking out, improving, maintaining and using the road and adjacent areas are clearly and convincingly consistent with his claim of exclusive ownership, possession and right of user, as well as with the legal elements of adverse possession.

On this record, the nature of respondent's legal interest in the road area as between adverse possession and prescriptive easement is a close question. The requirements for both are the same, but the legal consequences differ:

Easement by prescription and adverse possession are two similar legal theories. With both, a person, through his prolonged actions, gains an interest in property that he did not previously have. Through adverse possession, a person gains title to land. Through a prescriptive easement, a person gains the right to use land for certain purposes.

Wheeler v. Newman, 394 N.W.2d 620, 622-23 (Minn. App. 1986) (citations omitted).

Two of the requirements are less strict for a prescriptive easement than for adverse possession. The continuity of the use of the land and the degree of exclusivity of possession are relaxed for prescriptive easements. Hartman, 288 Minn. at 420, 181 N.W.2d at 469 (citing Romans, 217 Minn. at 178, 14 N.W.2d at 485). Here, the trial court found that respondent's possession of the road area was sufficiently continuous to ripen into title by adverse possession. The record shows respondent's ongoing visible possessory acts, without cessation, since 1971. The record also shows the requisite exclusivity for adverse possession. Respondent and his employees appear to have been the sole users of the road, and respondent was solely responsible for the creation, improvement and maintenance of the road. The facts support the trial court's determination that respondent manifested his intent to own the road area and not merely to have a right to use it. The trial court did not err in awarding title by adverse possession rather than a prescriptive easement.

With respect to the remaining portion of the disputed strip of land, we hold that the trial court did not err in denying title through adverse possession or by practical location of boundary.

Under Nash, 377 N.W.2d at 58, and Gifford, 245 Minn. at 437, 72 N.W.2d at 629, one cannot acquire title by adverse possession when he leaves the land in its natural state. Respondent argues that he planted trees and shrubs, trimmed trees and cleared brush along the strip with the intention of establishing a permanent boundary line. He also contends that his placement of "no trespassing" signs along the strip further evinces his claim of exclusive ownership. The acts of clearing brush and planting and trimming trees left the property virtually in its natural state and were insufficient to establish adverse possession. See Stanard v. Urban, 453 N.W.2d 733, 736 (Minn. App. 1994) (mowing and maintaining summer property and storing lake equipment thereon in winter were insufficient to gain title by adverse possession); Gifford, 245 Minn. at 437, 72 N.W.2d at 629 (placing line of rocks and planting trees as boundaries not sufficient to establish adverse possession when rest of property left in natural state). The evidence was substantially in dispute as to the existence, placement and duration of the "no trespassing" signs. Such disputed evidence fails to satisfy the clear and convincing standard. Since the rock pile and fence remnants preexisted respondent's occupation as items that were simply on the land, they likewise do not clearly and convincingly support the elements of adverse possession.

Respondent also contends that he is entitled to the remainder of the disputed strip through boundary by practical location which provides that a boundary line can be established through (1) acquiescence, (2) agreement, or (3) estoppel. Respondent argues that appellants and their predecessors in title acquiesced in respondent's manifested claim of entitlement to the disputed strip. Evidence of acquiescence must be clear, positive, and unequivocal:

[T]he acquiescence required is not merely passive consent to the existence of a fence * * * , but rather is conduct or lack thereof from which assent to the fence * * * as a boundary line may be reasonably inferred.

Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980) (quoting Engquist v. Wirtjes, 243 Minn. 502, 507-08, 68 N.W.2d 412, 417 (1955)).

Respondent argues that the existence of "no trespassing" signs, knowledge of the disputed strip, and awareness of respondent's use of the road are sufficient to establish acquiescence. As previously discussed, the trial court found the evidence to be conflicting as to the existence, location and duration of "no trespassing" signs. At least one frequent user of the land testified that he never saw such signs. The resolution of the conflict clearly implicated credibility assessments. On appeal, this court cannot second-guess the credibility determinations of the trial court. Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 598 (Minn. App. 1995) (appellate courts give due regard to trial court's credibility assessment). Furthermore, mere knowledge that there might have been uncertainty as to property boundaries and awareness that a landowner used and maintained a road on a small portion of the questioned boundary area are not sufficient to establish acquiescence by clear, positive and unequivocal evidence. See Engquist, 243 Minn. at 507-08, 68 N.W.2d at 417.