This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996).




Anthony M. Zlonis, et al.,



Minnesota Power & Light Company,


Filed December 29, 1998


Harten, Judge

St. Louis County District Court

File No. C2-97-300303

Douglas J. Nill, Douglas J. Nill Law Office, 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55402 (for appellants)

Brian R. McCarthy, Steven J. Sheridan, Magie, Andresen, Haag, Paciotti, Butterworth & McCarthy, P.A., 1000 Alworth Building, P.O. Box 745, Duluth, MN 55802 (for respondent)

Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Harten, Judge.



Appellant property owner sued respondent power company, alleging that respondent had installed a power line over appellant's property without procuring an easement. The jury found that no power line had been installed without an easement. Appellant challenges the verdict on the ground that the jury instructions were erroneous and prejudicial. Because we conclude that the jury was properly instructed, we affirm.


Appellant Anthony Zlonis[1] sued respondent Minnesota Power & Light, alleging that it constructed a second power line over appellant's property without acquiring an easement and damaged the property while constructing and maintaining power lines. The complaint asserted that the second line had been constructed in 1984; however, this date was a misprint, and appellant later alleged that the line was constructed in 1992-93. Respondent in its answer said that it was successor-in-interest to a 1916 easement to construct and maintain power lines over appellant's property and that its power lines conformed to the easement.

During the two-day jury trial, respondent presented five witnesses and several exhibits showing that the two power lines over appellant's property had been installed before 1992-1993 when appellant claimed to have been damaged. Specifically, witnesses who were employees of respondent said the lines had been in place since 1931, and an independent witness produced a map and testified that they had been in place since at least 1949.

Appellant requested a jury instruction on calculation of damages if appellant's fences were damaged beyond repair; the jury received this instruction. The only other instructions appellant requested were on the definition of trespasser and the inclusion of damages for trespass in the loss of use of the land; these instructions were not given.

The jury was given a special verdict similar to that proposed by respondent; appellant did not propose a special verdict. The special verdict included four questions: (1) did respondent erect a second power line over appellant's property in or around 1994,[2] (2) if so, what amount would compensate appellant for damage caused by its construction, (3) did respondent damage appellant's fences while maintaining its power lines, and (4) if so, what amount would compensate appellant. The jury was also instructed that, to answer "yes" to questions (1) or (3), "the greater weight of the evidence must support such an answer."

The jury answered "no" to question (1), "yes" to question (3), and "$930" to question (4). Appellant did not move for a new trial and judgment for $930 was entered in his favor.

Appellant now challenges the jury instructions, and the special verdict form; respondent contends that they are not appealable. Appellant also moves to strike portions of respondent's brief and both parties seek attorney fees on appeal.


1. Appealability

Respondent argues that appellant's failures both to object to the jury instructions during trial and to move for a new trial deprive him of the right to challenge jury instructions on appeal.

It has long been the general rule that matters such as * * * jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.

* * * *

We * * * reaffirm the general rule that in order to preserve for appellate review issues arising during the course of trial, counsel--in addition to taking the other requisite steps, including making timely objection--must move the trial court for a new trial pursuant to Minn. R. Civ. App. P. 59.01.

Sauter v. Wasemiller, 389 N.W.2d 200, 201-02 (Minn. 1986). Appellant neither proposed the jury instructions he now claims should have been given, nor objected to the jury instructions that were given, nor moved for a new trial on the basis of jury instructions.

Even absent appropriate objection, however, "an appellate court can review the instructions absent proper objection when there is an error with respect to fundamental law and controlling principle." Fallin v. Maplewood-North St. Paul Dist. 622, 362 N.W.2d 318, 320 (Minn. 1985) (quotation omitted). Whether the jury instructions did contain an error with respect to fundamental law depends on the circumstances of each particular case. Anderson v. Mid-Motors, Inc., 256 Minn. 157, 165, 98 N.W.2d 188, 193 (1959). Assuming without deciding that appellant's arguments go to fundamental law in the jury instructions, we nevertheless review them.

2. Jury Instructions

Appellant first argues that instructing the jury that "the greater weight of the evidence" had to support an affirmative answer to whether respondent constructed a power line across appellant's property in 1992-1993 improperly shifted the burden of proof to appellant. Appellant's argument fails for two reasons. First, the jury was instructed as to the evidentiary standard, namely preponderance of the evidence; it was not instructed, erroneously or otherwise, as to burden of proof. Second, appellant now characterizes his action as adverse possession and claims respondent, the adverse possessor, had to prove entitlement to the land. But respondent could not have argued adverse possession as a defense to the allegation that it constructed a power line in 1992-1993. See Minn. Stat. § 541.02 (1996) (setting the limitation for adverse possession actions at 15 years).

Appellant never mentioned adverse possession prior to this appeal. When a party proceeds through trial on one issue, does not submit special verdict questions on other issues, and does not seek jury instruction on other issues, that party has tacitly agreed to limit the issues and cannot complain of failure to instruct on other issues. See Sauke v. Bird, 267 Minn. 129, 134-35, 125 N.W.2d 421 (1963) (where record discloses parties' tacit agreement to limit issue presented to jury, parties are deemed to have withdrawn other issues from jury's consideration). We see no error of law in the jury instructions.

Even if the jury instructions did contain an error of law, appellant would be entitled to a new trial only if the error destroyed the substantial correctness of the charge, caused a miscarriage of justice, or resulted in substantial prejudice. Pine Valley Meats, Inc. v. Canal Capital Corp., 566 N.W.2d 357, 362-63 (Minn. App. 1997), review denied (Minn. Sep. 18, 1997). Appellant claims prejudice, arguing that the jury "very likely may have come to an entirely different result" had it been instructed that respondent had the burden of proving "a prescriptive easement." But respondent easily met that burden: it produced evidence showing that it had the requisite easements and that evidence was opposed only by appellant's testimony based on his recollection. Appellant was not prejudiced by failure to instruct on the burden of proof for prescriptive easements.

3. Motions to Strike and For Attorney Fees on Appeal

Appellant moves to strike six portions of respondent's brief. After careful consideration of them and of the record supporting them, we conclude there is no basis to strike. We also conclude that neither party is entitled to attorney fees on appeal.

We affirm because the jury instructions were not appealable, because we see no error in them, and because appellant suffered no prejudice from them.


[1] Appellant's wife, Gretchen Zlonis, was also a plaintiff; she died while the action was pending.

[2] Why this date was used instead of 1992-1993 is not explained; however, neither party objects to it.