C1-99-912

Thomas W. Bruers, et al.,

Appellants,

vs.

Thomas R. Wherley,

Respondent.

Filed April 11, 2000

Reversed and remanded

Willis, Judge

Koochiching County District Court

File No. C6956

Daniel L. Griffith, Griffith Law Office, 343 Third Street, International Falls, MN 56649 (for appellants)

Jerrod A. Shermoen, Shermoen, LeDuc & Jaksa, PLLP, 345 Sixth Avenue, P.O. Box 1072, International Falls, MN 56649 (for respondent)

Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellants Thomas W. and Felicidad B. Bruers challenge summary judgment establishing the boundaries of their property and in favor of respondent Thomas R. Wherley on their trespass claim. We reverse and remand.

FACTS

In January 1995, the Bruerses filed a complaint alleging that in March 1993, Wherley, who was their neighbor, trespassed and without consent cut to water level 11 of 14 of the Bruerses’ dock pilings. Wherley denied all counts and counterclaimed, alleging that there was a boundary dispute and requesting that the court determine the boundaries between the parties’ properties.

The land in question is in Koochiching County on a bank of the Rainy River. Before 1928, the land was one lot, including a portion described as “Lot 2, Section 25-71-24.” In 1928, a portion of Lot 2 was sold by The Virginia and Rainy Lake Company to a family named McCarthy. The legal description of the McCarthys’ property, which was carved from within the larger lot, states that their property line runs “in a northerly direction along the high bank of Rainy River a distance of 238 ft.” The abstract of title refers to a survey of the new lot conducted in 1927 and states, with regard to the McCarthys’ 1928 purchase, that

[i]t is further understood between the parties hereto that this conveyance is intended to convey the surface rights only, and is not intended to convey any title to the creek bottom or river front.

In 1966, the McCarthys sold their lot to Bodin’s, Inc. The Bruerses purchased the lot from Bodin’s by contract for deed in 1976. Wherley is the record owner of the remaining portion of the original “Lot 2, section 25-71-24.”

As directed by the court, Robert Murray of Murray Surveying, Inc., surveyed the Bruerses’ property and concluded that, as reflected in the 1927 survey, the Bruerses’ property does not abut the Rainy River, but rather runs along a line varying from 6 to 20 feet away from the existing shoreline. Murray stated in his submission to the district court that “[i]t appears that no riparian rights were intended to be transferred at the time of the 1927 survey.”

Wherley then moved for summary judgment on the Bruerses’ trespassing claim and a judicial determination of the boundaries between his and the Bruerses’ properties in accordance with the Murray survey. In April 1999, the court established the boundaries, determining that the Bruerses did not have title to the riverfront, and granted Wherley’s summary-judgment motion on the Bruerses’ trespassing claim. The Bruerses appeal.

D E C I S I O N

We will affirm summary judgment if “there is no genuine dispute regarding the material facts” and the moving party is entitled to judgment under the law. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997); Mickelson v. Travelers Ins. Co., 491 N.W.2d 303, 305 (Minn. App. 1992). There is no genuine issue of material fact when the nonmoving party presents only evidence that “merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case.” DLH, 566 N.W.2d at 71. Mere conclusory statements are insufficient to defeat a summary judgment motion. Nowicki v. Benson Properties, 402 N.W.2d 205, 208 (Minn. App. 1987). We view the evidence in the light most favorable to the nonmoving party. Mickelson, 491 N.W.2d at 305.

The Bruerses alleged that Wherley trespassed by cutting dock pilings on their property. The owner of property abutting a river has riparian rights that include the right to build and maintain for his own use piers, landings, and docks that extend from his land into the adjoining river. State v. Korrer, 127 Minn. 60, 71-72, 148 N.W. 617, 621-22 (1914).

Wherley raised as a counterclaim that there was a boundary dispute. He argued that he owns the land abutting the Rainy River and that the Bruerses did not, therefore, have the right to build or maintain the dock pilings, and thus Wherley could not have trespassed. The district court agreed, determining that the legal description of the Bruerses’ property does not include the riverfront along the Rainy River and that they did not establish the elements of adverse possession. The court granted Wherley’s motion for summary judgment on his counterclaim, establishing the property boundaries as set forth in the Murray survey, and therefore granted Wherley’s motion for summary judgment on the Bruerses’ trespass claim.

The Bruerses argue that the district court abused its discretion by determining the boundaries between the properties because Wherley raised the issue “merely as a defense.” But a defendant in a trespass action may raise as a counterclaim that the boundary lines of the property in question are in dispute and request that the district court establish the boundaries. Hackett v. Kanne, 98 Minn. 240, 241, 107 N.W. 1131, 1131-32 (1906).

A district court’s determination of a disputed boundary is a factual determination and will be accorded the same deference as any other factual determination. Wojahn v. Johnson, 297 N.W.2d 298, 303 (Minn. 1980). The Bruerses presented no facts that call into question the validity of the Murray survey. We agree with the district court that the Bruerses’ property as described in the abstract of title does not extend to the edge of the Rainy River.

But the Bruerses argue that, even if they are not the record owners of the riverfront property, they presented sufficient evidence to raise a genuine issue of material fact regarding their adverse possession of the property so as to preclude the district court from granting Wherley summary judgment.

To establish adverse possession, a party must show actual, open, hostile, continuous, and exclusive possession of property for at least 15 years preceding the adverse-possession claim. Roemer v. Eversman, 304 N.W.2d 653, 653 (Minn. 1981). The district court concluded that the Bruerses had not presented specific facts to establish the elements of adverse possession. But in response to Wherley’s motion for summary judgment, the Bruerses stated by affidavit that because they believed that they purchased the riverfront property in 1976, they have, continuously since their purchase, openly used the riverfront as their own, and they have built structures into the river from the riverfront and have maintained those structures. The record shows that before Wherley allegedly cut the dock pilings, the Bruerses had removed the top of the dock in preparation of construction of a new dock, which supports the Bruerses’ assertions. We conclude that this evidence, viewed in the light most favorable to the Bruerses, sufficiently raises genuine issues of material fact regarding their adverse possession of the riverfront to make summary judgment on Wherley’s counterclaim inappropriate. We therefore reverse the summary judgment establishing the boundaries of the properties and remand to the district court for further proceedings on the Bruerses’ adverse-possession claim. It then follows that we must also reverse and remand the district court’s granting of summary judgment to Wherley on the Bruerses’ trespass claim.

Wherley has moved to strike portions of the Bruerses’ brief and appendix. We grant the motion with respect to those documents appended to the Bruerses’ brief that are not in the district court record. See Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977). The documents stricken are reproduced at pages 55-57, 63-64, 66, 68, and 96-98 of the Bruerses’ appendix. We also strike those portions of the Bruerses’ brief that refer to those documents, and we have not considered either the stricken documents or arguments relating to them in arriving at our decision.

After oral arguments, the Bruerses moved this court to accept a legible copy of a title opinion that was included in their appendix. A copy of the title opinion is in the district court’s file, and Wherley does not object to the submission of a legible copy. We therefore accept that document.

The Bruerses’ motion also asks this court to accept their property-tax documents, and they attempt to supplement their oral argument with a letter brief. The property-tax documents are not in the district court record and thus will not be reviewed by this court. See Plowman, 261 N.W.2d at 583. And because we do not accept supplemental arguments without prior leave, we have limited our review to the documents in the record and to the relevant arguments in the parties’ briefs and made to this court at oral argument. See Minn. R. Civ. App. P. 128.02, subd. 4 (stating that no additional briefs may be filed except with leave of the court).

We deny Wherley’s motion for attorney fees.

Reversed and remanded.