This opinion will be unpublished and

may not be cited except as provided by

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




James W. Jones,



Edward L. Cullen,


Filed November 24, 1998


Amundson, Judge

St. Louis County District Court

File No. CX95601705

Brian R. McCarthy, Magie, Andresen, Haag, Paciotti, Butterworth & McCarthy, P.A., 1000 Alworth Building, 306 West Superior Street, Duluth, Minnesota 55802 (for respondent)

Timothy N. Downs, MacDonald & Downs, 200 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)

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



Edward L. Cullen appeals from the district court's order denying his motion for amended findings and his request for a new trial. We affirm.


This appeal arises out of a property dispute between Appellant Edward L. Cullen (Cullen) and Respondent James W. Jones (Jones) that, pursuant to Minn. R. Civ. P. 53, was referred by the district court to the St. Louis County Examiner of Titles. After hearing testimony and reviewing exhibits regarding the ownership of two disputed tracts of property, the referee recommended that Jones be declared the owner of both tracts, subject to a non-exclusive easement for road access over the first disputed tract and a non-exclusive personal easement in gross in favor of Cullen to the second disputed tract, providing him access to Morgan Lake.

The disputed property is part of an area described as Government Lot 3 (GL 3), which was originally owned by one family. Donald Bergholm (Bergholm), a current property owner on Morgan Lake, testified that in the 1920s his father was the sole owner of GL 3. Bergholm also testified that, at the time, fences were constructed throughout GL 3 to keep livestock out of the gardens. In 1930 or 1931, Bergholm's aunt and uncle, Oscar and Irma Hogberg, purchased the 40 acres just west of GL 3. In 1951, Irma Hogberg married Cullen's father (becoming Cullen's stepmother) and Cullen's father became an owner of the property. Upon his father's death in 1956, Cullen acquired the property.

In 1947, Jones's parents purchased a divided portion of GL 3. The property was subsequently deeded to Jones and his wife on March 13, 1958. The western boundary of Jones's property borders the eastern boundary of Cullen's property. The record indicates that the parents of Cullen and Jones enjoyed an amicable relationship, which, until recent times, characterized the relationship between Cullen and Jones as well.

This neighborly relationship began deteriorating in the early 1990s and conclusively ended in 1993. At that time, the county informed the Morgan Lake property owners they could no longer maintain a gate on county-owned property. Thereafter, Cullen bought the land from the county and placed his own locked gate on the road, effectively cutting off the other property owners' access to their cabins until a new road was constructed approximately two years later. After Cullen made the road access impassable, Jones commenced this suit to enjoin Cullen's use of the two disputed areas of GL 3, the "Morgan Lake access" and the "road-access" properties.

I. Morgan Lake Access

In his counterclaim, Cullen alleges that he acquired an easement over a portion of GL 3, allowing him access to Morgan Lake. This claimed easement is based on an oral agreement between Jones's father and Cullen's father. Apparently, Jones' father approached Cullen's father and told him that he would allow him access to Morgan Lake if, in exchange, Cullen's father would allow him and his son to hunt on the Cullen property. Cullen apparently witnessed this conversation, but Jones did not. Jones, however, did testify that he was aware of this agreement.

II. Road Access Property

The other part of GL 3 in dispute involves a section of land directly bordering Cullen's property, west of the "old fence line" on GL 3 and east of Cullen's legally described property. Cullen's primary use of this property was for vehicular access to his cabin, thus reference to this disputed tract of GL 3 will be the "road-access property." This area encompasses a clearing directly in front of Cullen's cabin and resembles an open field. Although the road-access property is part of Jones's legally described property on GL 3, Cullen now claims ownership of this area by virtue of adverse possession or prescriptive easement.

Jones initially brought this action: (1) to obtain a judicial declaration of revocation of an oral license given to Cullen for access to Morgan Lake; (2) to obtain an injunction barring Cullen's further use of the property in dispute; and, (3) for a determination of ownership of the disputed tracts. The court-appointed referee filed a recommendation favorable to Jones. Cullen challenged the referee's recommendation in district court, making a motion for amended findings or, in the alternative, requesting a new trial. The district court denied Cullen's motions, adopted the findings of the referee, and entered judgment in accordance with the referee's recommendation. Cullen now challenges the district court's order.


The Minnesota Rules of Civil Procedure set forth the standard of review in this matter, stating:

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a referee, to the extent adopted by the court, shall be considered as the findings of the court.

Minn. R. Civ. P. 52.01. Therefore, under Rule 52.01, our review is limited to determining whether the referee's findings, as adopted by the trial court, are clearly erroneous. Findings of fact are clearly erroneous only where the reviewing court is left with "a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Products, Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). This court, however, is not bound by the district court's legal conclusions. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

In this appeal, Cullen first contends that the district court erred in adopting the referee's findings. Boundary disputes generally involve determinations of fact and require credibility determinations. See Wojahn v. Johnson, 297 N.W.2d 298, 303 (Minn. 1980) (stating that boundary disputes involve factual determinations and will not be reversed where there is reasonable support for the determinations). The court-appointed referee was presented with numerous witnesses and exhibits during this three-day trial. He also viewed the disputed property to gain an understanding of it's layout. Throughout the trial, the witnesses provided contradictory and often incomplete information from which the referee was forced to reach a determination. While Cullen has attempted to discredit Jones's witnesses, the referee was in the best position to judge the credibility of the witnesses and to properly weigh the evidence presented. Jeckell v. Arkell, 374 N.W.2d 503, 505 (Minn. App. 1985).

The referee's 24-page report, filed with the district court, included detailed findings, conclusions, and a recommendation. Based on our review of the transcript and the referee's report, we conclude the district court did not err in adopting the referee's findings, which were reasonably supported by the evidence.


The district court adjudged Jones to be the owner of the "Morgan Lake access,"

situated on GL 3, subject to a non-exclusive personal easement in gross in favor of Cullen. Cullen argues that the district court erred in determining that this was an easement in gross. Cullen maintains on appeal that the district court's order should be

modified to provide Cullen with an easement appurtenant, which would run with the Cullen property.[1]

"An easement in gross is the right to use another's property that is personal and revocable." Block v. Sexton, 577 N.W.2d 521, 525 (Minn. App. 1998) (citing Callan v. Haus, 91 Minn. 270, 271, 97 N.W. 973, 974 (Minn. 1903); Lidgerding v. Zignego, 77 Minn. 421, 424, 80 N.W. 360, 361 (1899)). Indeed, an easement in gross functions as an irrevocable license. Block, 577 N.W.2d at 525. An easement is appurtenant, rather than gross, "when it appears that it was granted for the benefit of the grantee's land." Lidgerding, 77 Minn. at 425, 80 N.W. at 361.

Although the permission given by Jones' father to access Morgan Lake was never recorded, the circumstances surrounding its creation and use suggest that it was only intended to provide Cullen and his father access to Morgan Lake. In exchange, Jones and his father were given permission to hunt on Cullen's property. Thus, the permission was based on a mutually beneficial agreement, which provided some benefit to Jones and his father as well as to the Cullens.

The evidence surrounding the inception of the "lake-access" agreement supports the district court's findings, as adopted from the referee's recommendation, that the access was not intended to benefit Cullen's land, but merely to provide Cullen and his father with a personal benefit or license. Therefore, the district court did not err in adopting the referee's recommendation that this was an easement in gross, rather than appurtenant.


Finally, Cullen alleges the district court erred in determining that he had failed to prove a claim of adverse possession or prescriptive easement to the disputed "road- access" property.

Adverse Possession Claim

Title by adverse possession requires the disseizor to show "actual, open, hostile, continuous, and exclusive possession for 15 years." Wojahn, 297 N.W.2d at 305; See also Minn. Stat. § 541.02 (1996) (setting forth the statutory 15-year time period before recovery of real estate can be made based on adverse possession). Further, these elements must be shown by "clear and convincing" evidence, and the evidence must be strictly construed with every inference or presumption operating against the disseizor. LeeJoice v. Harris, 404 N.W.2d 4, 6 (Minn. App. 1987). One presumption is that where the original possession was permissive, it is "presumed to continue as permissive, rather than hostile, until the contrary [is] affirmatively shown." Norgong v. Whitehead, 225 Minn. 379, 383, 31 N.W.2d 267, 269 (1948); Weis v. Kozak, 410 N.W.2d 903, 906 (Minn. App. 1987).

Jones testified that it was only with his permission that Cullen made use of this property. Cullen's use of the property varied throughout the years. Cullen regularly traveled across Jones's property to access his lot. Furthermore, at times, both Jones and Cullen parked cars on the "road-access property." Although most of this property is located on a hillside covered with gravel, Cullen often mows the grass that grows in this area. When they were young, Cullen's children played on the open field. Cullen stacked firewood and piled logs on the property for about 20 to 30 years until Jones asked him to stop this practice in the 1980s.

The evidence raises a strong presumption of permissive use by Cullen. Therefore, this presumption of permissive use must prevail in this situation unless Cullen can affirmatively show, with clear and convincing evidence, that this permission was withdrawn. While the record indicates that there were "no-trespassing" signs in the area, the evidence does not show that Cullen thought the signs applied to him. Further, aside from the log incident and Jones's 1993 withdrawal of permission, the record does not indicate any other situation where Jones withdrew his permission for Cullen's use of the road access property. We agree that Cullen has failed to show a withdrawal of permission beyond the 15-year statutory period.

Additionally, to establish an adverse-possession claim, Cullen would have to show that his use of the property was "hostile." The "hostile" requirement does not refer to "personal animosity or physical overt acts against the record owner." Ehle v. Prosser, 293 Minn. 183, 190, 197 N.W.2d 458, 462 (1972). Rather, the claimant must show that he or she exercised "exclusive ownership as against the world." Norgong, 225 Minn. at 382, 31 N.W.2d at 269. Cullen cannot show "exclusive" ownership because the record indicates that Jones regularly used this property, maintaining a large garden and planting trees on the disputed portion of GL 3. Jones also took walks on this property and hunted there for wild strawberry plants. Further, Cullen never told any neighbors to get off this disputed property and failed to post "no-trespassing" signs to keep Jones off the property. The record supports the district court's finding against Cullen on the adverse possession claim.

Cullen also makes a brief reference to a "practical-boundary" argument in conjunction with his adverse-possession claim. The practical location of a boundary line may only be established in one of three ways: (1) acquiescence; (2) agreement; or (3) estoppel. Wojahn, 297 N.W.2d at 304. As in Wojahn, Cullen seems to be contending that the "old fence line" created the accepted boundary between his and Jones's property. The clear and unequivocal evidence, however, shows that the old fence was never meant as a boundary line, but was only erected on GL 3 to fence in livestock. Further, the evidence indicates that Cullen was aware of the property lines

dividing the two properties.[2] Cullen's "practical-boundary" argument, based on the old fence line, is not supported by the record.

Prescriptive-Easement Claim

Much like adverse possession, to establish an easement by prescription, a claimant must prove that he or she used the easement for the prescriptive period of 15 years and that such use was hostile, actual, open, continuous, and exclusive. Burns v. Plachecki, 301 Minn. 445, 448, 223 N.W.2d 133, 135 (1974). The "hostile"-use requirement, however, is slightly different from that for an adverse possession claim. Use of an easement is presumed to be adverse or hostile when the easement claimant shows open, visible, continuous, and unmolested use for the statutory period that is inconsistent with the owner's rights, under circumstances from which the owner's acquiescence may be inferred. Id. at 448, 223 N.W.2d at 135-36; Nordin v. Kuno, 287 N.W.2d 923, 926 (Minn. 1980). Unless successfully rebutted, this presumption prevails. Hartman v. Blanding's, Inc., 288 Minn. 415, 418, 181 N.W.2d 466, 468 (1980).

The record does not support a presumption of hostile use, but rather indicates that Cullen's use of the property was never inconsistent with Jones's rights, that is, until 1993, when the "gate" dispute arose. In fact, both Jones and Cullen made use of this road-access property without interfering with one another. Therefore, without the aid of this presumption, the adverse character of the original user is an issue of fact, and the easement claimant must present "clear and unequivocal proof of the inception of hostility." Burns, 301 Minn. at 449, 223 N.W.2d at 136. The record indicates that Cullen's use of the road access did not have its origins in hostility, but rather that Jones' father and Jones permitted Cullen's use of this property as a neighborly gesture. The evidence does not indicate that the district court erred in its determination that Cullen failed to prove his prescriptive easement claim.

As an alternative, Cullen requests a new trial. A new trial should not be granted unless the findings are so contrary to the evidence as to imply that the trier of fact did not consider all of the evidence or acted under a mistake. M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn. App. 1995), review denied (Minn. July 20, 1995). Because there is no evidence in the record indicating that the referee failed to consider all the evidence or that he acted under a mistake, the district court did not err in denying Cullen's request for a new trial.


[1]Cullen also alleged that he has acquired title to the "lake-access" property through adverse possession. Cullen, however, failed to brief this argument, only making an unsupported statement regarding his "open, hostile, continuous, and exclusive use" of the lake access. Therefore, we decline to address this argument. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (issues not briefed on appeal are waived).

[2]The record indicates that in 1989 or 1990 Cullen may have suggested to Jones that he thought his eastern boundary line was determined by the "old fence line." The county, however, completed a survey in 1991, which established the boundary lines along the legal description of GL 3. Jones testified that, after receiving the results of the survey, Cullen commented to him, "You win some, you lose some."