STATE OF MINNESOTA

IN COURT OF APPEALS

A05-474

Kaye Blanchard,
Appellant,

vs.

Howard A. Rasmussen,
Respondent.

Filed October 11, 2005

Affirmed in part and reversed in part

Wright, Judge

Hubbard County District Court

File No. C4-03-532

Clinton McLagan, P.O. Box 21347, Eagan, MN 55121 (for appellant)

James B. Wallace, Wallace & Tiffany, 201 East First Street, P.O. Box 27, Park Rapids, MN 56470 (for respondent)

Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.

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

WRIGHT, Judge

In this boundary dispute, in which the district court’s amended judgment reduced the extent of land awarded to appellant, appellant argues that the record establishes as a matter of law that (1) she and the adjacent landowners agreed to and acquiesced in a boundary by practical location; and (2) she acquired title to the entire tract of disputed land by adverse possession. By notice of review, respondent challenges the district court’s conclusion that appellant adversely possessed any portion of the land in dispute. We affirm in part and reverse in part.

FACTS

In 1981, appellant Kaye Blanchard purchased from the Wilsons the northernmost 330 feet of their 40-acre plot of land. When Blanchard moved onto the property in the fall of 1982, Blanchard’s former husband, Bert Ewald, and the Wilsons placed a stake at the southeast corner of Blanchard’s property to demarcate the boundary between their plots of land. Blanchard and the Wilsons also agreed that a large rock signified the southeast corner of Blanchard’s land. Although neither party hired a surveyor to determine the actual boundary, both Blanchard and the Wilsons understood that this stake located next to the rock marked the boundary between the two plots of land.

Using the stake as a reference, Blanchard built a deer stand and an outhouse near the boundary line in 1982. Blanchard parked an old car near the line in 1983 and over time accumulated refuse and other man-made objects that she stored on the easternmost approximately 240 feet of her land. In the early 1990s, Blanchard began stacking logs and lumber near the car. No buildings or improvements lie west of the deer stand; the westerly portion of Blanchard’s property consists mostly of trees, brush, and a few trails.

In 1987, the Wilsons sold their land to the Zercks. Because the Zercks wanted to be clear about the boundary, Dave Warner, the man living with Blanchard at the time, placed another stake at the southeast corner of her property, purportedly within a few inches of the location where the stake had been placed in 1982. Blanchard told the Zercks she believed her outhouse may be across the boundary line and that when she built a new one, she would be sure it was on her property. Sometime after 2000, Blanchard did in fact build a new outhouse further north on her land.

In 1992, the Zercks sold their land to respondent Howard Rasmussen. Stanley Zerck identified the approximate location of the northern boundary line for Rasmussen’s son because the stake was no longer present. Rasmussen’s son relayed the information to Rasmussen, who subsequently posted a “No Hunting” sign on a tree near the corner originally staked by Blanchard and the Wilsons. Nonetheless, at trial, Rasmussen testified that he understood that a different location marked the boundary.

In 2002, Rasmussen had his property surveyed and discovered the actual boundary was approximately 32 feet north of where Blanchard and the Wilsons had originally staked the corner. The surveyor placed a survey stake at the actual boundary line.

Blanchard brought an action to determine the boundary line pursuant to Minn. Stat. § 559.23 (2004), claiming that she acquired title to a strip of land situated 32 feet south of the survey line. The matter proceeded to trial. The district court initially found that (1) Blanchard and the adjacent landowners had agreed on and acquiesced in the pre-survey boundary line; (2) for more than 15 years, Blanchard was in actual, exclusive, open, and continuous possession of the land 30 feet south of the survey line; and (3) Blanchard shall have all right, title, and interest in the land approximately 30 feet south of the survey line. Rasmussen moved for amended findings or a new trial. The district court amended its findings and judgment, reducing Blanchard’s award to a 32-by-160-foot strip of land south of the survey line. The amended findings did not specifically state whether a boundary by practical location had been established. The district court reduced the extent of the land awarded to Blanchard based on its determination that Blanchard adversely possessed only that portion of the 32-foot strip east of the old outhouse. This appeal followed.

D E C I S I O N

Blanchard argues that she is entitled to the entire strip of disputed land south of the survey line on the grounds of boundary by practical location as well as adverse possession. Blanchard first argues that, because she and the Wilsons initially agreed on a boundary line 32 feet south of the survey line, which the subsequent landowners acquiesced in, a boundary by practical location has been established as a matter of law. The district court so held in its original order.

The district court’s determination of a boundary, including whether a landowner acquiesced in a boundary by practical location, ordinarily is a question of fact, which we review for clear error. Wojahn v. Johnson, 297 N.W.2d 298, 303 (Minn. 1980); Theros v. Phillips, 256 N.W.2d 852, 857 (Minn. 1997). But whether the factual findings support a particular legal conclusion is a question of law subject to de novo review. Pratt Inv. Co. v. Kennedy, 636 N.W.2d 844, 848 (Minn. App. 2001).

Minnesota law authorizes judicial action to determine boundary lines. Minn. Stat. § 559.23 (2004). The underlying doctrine is termed boundary by “practical location.” Theros, 256 N.W.2d at 858. The doctrine of practical location is separate from the legal theory of adverse possession. Engquist v. Wirtjes, 243 Minn. 502, 507, 68 N.W.2d 412, 417 (1955); Pratt, 636 N.W.2d at 848. A boundary by practical location may be established in only one of three ways: (1) by acquiescence for a sufficient length of time to bar a right of entry under the statute of limitations; (2) by an express agreement of the parties claiming the land on both sides of the line and then by acquiescence; or (3) by estoppel. Theros, 256 N.W.2d at 858; Gifford v. Vore, 245 Minn. 432, 436, 72 N.W.2d 625, 628 (1955); Pratt, 636 N.W.2d at 849. The evidence establishing a boundary by practical location must be “clear, positive, and unequivocal.” Gifford, 245 Minn. at 436, 72 N.W.2d at 628. Blanchard contends that a boundary by practical location has been established as a matter of law on the grounds of acquiescence and express agreement.

When determining the existence of a boundary by practical location by acquiescence, a district court must make no inferences or presumptions in favor of the disseizor. Phillips v. Blowers, 281 Minn. 267, 269-70, 161 N.W.2d 524, 527 (1968). Rather, the district court must make all inferences against the disseizor. Id. Only if this heavy burden is met can a boundary by practical location by acquiescence prevail over a contrary survey result. See id. at 274-75, 161 N.W.2d at 529-30.

When adjoining landowners occupy their respective premises up to a certain line that they both recognize and acquiesce in for 15 years, generally they are precluded from contesting that boundary line. Amato v. Haraden, 280 Minn. 399, 403, 159 N.W.2d 907, 910 (1968); see Minn. Stat. § 541.02 (2004). Acquiescence requires actual or implied consent to some action by the disseizor, such as construction of a boundary or other use of the disputed property and acknowledgement of that boundary for an extended period of time. Engquist, 243 Minn. at 507-08, 68 N.W.2d at 417; LeeJoice v. Harris, 404 N.W.2d 4, 7 (Minn. App. 1987); see also Fishman v. Nielsen, 237 Minn. 1, 7-8, 53 N.W.2d 553, 556-57 (1952) (finding practical boundary by acquiescence when two predecessors in title agreed on a line, built a fence on the line, and acquiesced in the line for at least 18 years); In re Zahradka, 472 N.W.2d 153, 156 (Minn. App. 1991) (finding that boundary by practical location by acquiescence when disseizor built parking lot on disseized land and disseized made no claim to ownership of land for more than 15 years), review denied (Minn. Aug. 29, 1991).

Although possession of the land is not a prerequisite to establishing acquiescence in a boundary, the disseizor must take some action to demarcate an actual boundary by erecting a barrier or making some use of the land; otherwise there is no identifiable boundary in which the disseized can acquiesce. Pratt, 636 N.W.2d at 849-50; see also Gifford, 245 Minn. at 434-36, 72 N.W.2d at 627-28 (holding that when disseizor claimed that she labeled boundary with rocks, flowers, and iron monuments but disseized did not recognize these objects as asserting a boundary line, no boundary line was acquiesced in).

Implicit here is the notion that to demonstrate acquiescence in a boundary location, the line must be “certain, visible, and well-known.” Beardsley v. Crane, 52 Minn. 537, 546, 54 N.W. 740, 742 (1893); see also Fishman, 237 Minn. at 8, 53 N.W.2d at 557 (holding that fence constructed on agreement of two neighbors established practical boundary because it was “known, definite, certain, and capable of ascertainment”). The fence or division need not traverse the entire length of the boundary, however. See Allred v. Reed, 362 N.W.2d 374, 375, 377 (Minn. App. 1985) (holding that parties acquiesced in boundary even though fence demarcating boundary did not stretch length of lot), review denied (Minn. Apr. 18, 1985). But when the boundary line is unclear, ambiguous, or contradictory, acquiescence in a particular boundary has not been demonstrated. Theros, 256 N.W.2d at 859; see Phillips, 281 Minn. at 271, 161 N.W.2d at 528. “There can hardly be an acquiescence in a boundary line that is claimed to be located in several different places.” Theros, 256 N.W.2d at 859.

Here, based on the district court’s findings, the only identifying features of the boundary “line” were a stake at the eastern end of the line, a rock near the stake, and a few man-made objects placed in the vicinity of the boundary, none of which was ever intended to serve as a boundary. Blanchard neither constructed a fence along the boundary nor used the full length of the land. Indeed, most of the land lying between Blanchard’s property and that of her neighbors has been left in its wooded, natural state.

Moreover, the stake at the southeastern corner, the only unique and identifiable boundary marker, did not continuously serve as a marker for the requisite 15-year period. Although the boundary was originally staked in 1982, by 1987, when the Wilsons sold their land to the Zercks, the stake had disappeared and the corner had to be restaked. Blanchard testified that Dave Warner placed the new stake near the location where the first stake had been placed, but the record does not disclose how she identified the same line nearly five years after first staking the boundary. In 1992, when Rasmussen purchased the land south of Blanchard, the stake had again been removed. Because by 1992 no visible boundary existed whatsoever, the Zercks told Rasmussen’s son where the boundary line was located by merely estimating the placement of the line. Rasmussen’s son purportedly relayed this information to his father.

The purported boundary line in this case is so ambiguous that it is incapable of being measured. The ambiguity inherent in the purported line’s location is evident from the conflicting trial testimony of those who claimed to have acquiesced in the boundary location. Without unequivocal evidence of one visible and unambiguous boundary, acquiescence in a boundary line has not been established.

In order to conclude, based on found facts, that Blanchard and the adjacent landowners acquiesced in a single visible boundary, we would have to infer that (1) the stake placed at the southeastern corner in 1987 was placed in the exact location as the 1982 stake such that the Wilsons and the Zercks recognized the same boundary line; (2) although the stake had again been removed by 1992, Stanley Zerck was able to identify the same boundary for Rasmussen’s son without resorting to any physical markings; and (3) Rasmussen’s son relayed to Rasmussen, again without any physical reference, the precise location of the boundary. Thus, finding that Blanchard, the Wilsons, the Zercks, and Rasmussen acquiesced in one particular boundary line for 15 years would require us to make a series of inferences, each of which favors Blanchard. Even if the record supported such inferences, under the strict evidentiary standard for demonstrating acquiescence in a boundary, we are not permitted to make inferences in Blanchard’s favor. Accordingly, on this record, Blanchard fails to establish acquiescence by adjacent landowners in an identifiable boundary for at least 15 years.

Blanchard next contends that the district court’s findings establish as a matter of law a boundary by practical location through express agreement. Under this theory, a landowner may establish a boundary by practical location by evidence that neighboring landowners expressly agreed on a boundary location and thereafter acquiesced in the boundary line created. Nadeau v. Johnson, 125 Minn. 365, 366, 147 N.W. 241, 241 (1914). If the neighboring landowners expressly agree on a boundary, they need not acquiesce for the full 15 years. Id. at 367, 147 N.W. at 242. For example, when two adjacent landowners participated in measuring and locating a boundary line, expressly agreed on the dividing line between lots, staked the entire line, and then treated the line as the true boundary line for 10 years, the Nadeau court found that the parties established a boundary by practical location through express agreement. Id. But a boundary by practical location through agreement is not established when neighboring landowners, although they expressly agree on the corner dividing their lots, never agree on an entire boundary line. Phillips, 281 Minn. at 270-71, 161 N.W.2d at 527-28. The Phillips court held that, because the evidence demonstrating agreement and acquiescence and even the “line itself” were ambiguous, the evidence was insufficient as a matter of law to establish a boundary by practical location. Id.at 271, 161 N.W.2d at 528.

As previously addressed, the evidence in this case demonstrating agreement and acquiescence in a visible boundary line is far from clear and unequivocal. Although the district court’s factual findings demonstrate an initial agreement between Blanchard and the Wilsons as to a corner of the boundary line marked by a stake and a large rock, a visible boundary line has not existed for a continuous period of time following this initial agreement as required to demonstrate the subsequent landowners’ clear and unequivocal acquiescence in a boundary. On this record, Blanchard has failed to meet the heavy burden of demonstrating that she and the neighboring landowners expressly agreed to and subsequently acquiesced in a boundary by practical location.

II.

Blanchard alternatively argues that she acquired title to the entire strip of land in dispute, rather than a mere 32-by-160-foot area, by adverse possession. Conversely, Rasmussen contends that Blanchard is not entitled to any portion of the disputed land.

“Whether the adverse possession elements have been established is a question of fact.” Ganje v. Schuler, 659 N.W.2d 261, 266 (Minn. App. 2003) The district court’s findings of fact “shall not be set aside unless clearly erroneous.” Minn. R. Civ. P. 52.01. “In applying this rule, we view the record in the light most favorable to the judgment of the district court.” Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999). “But whether the findings of fact support a district court’s conclusions of law and judgment is a question of law, which we review de novo.” Ebenhoh v. Hodgman, 642 N.W.2d 104, 108 (Minn. App. 2002).

To establish adverse possession, the disseizor, Blanchard, must demonstrate by clear and convincing evidence exclusive, hostile, actual, open, and continuous possession of the property for 15 years. Minn. Stat. § 541.02 (2004); Engquist, 243 Minn. at 504, 68 N.W.2d at 415; Stanard v. Urban, 453 N.W.2d 733, 735 (Minn. App. 1990), review denied (Minn. June 15, 1990). The evidence must be strictly construed, and it must amount to clear and positive proof before a district court will grant the disseizor title by adverse possession. Stanard, 453 N.W.2d at 735. “The evidentiary way of the disseizor is hard,” with the district court making every inference and presumption against the disseizor. Vill. of Newport v. Taylor, 225 Minn. 299, 303, 30 N.W.2d 588, 591 (1948).

The exclusivity requirement for adverse possession is met if the disseizor intends to use the land to the exclusion of all others. Engquist, 243 Minn. at 504, 68 N.W.2d at 415; Ebenhoh, 642 N.W.2d at 108. The district court found that, at the very least, Blanchard’s use of the easternmost 160 feet of the 32-foot strip of land was exclusive. This finding is supported by the record. Once Blanchard and the Wilsons staked the corner dividing their parcels, Blanchard treated the disputed 32-foot strip of land as her own, building an outhouse on the property and piling firewood and lumber near what she believed to be a boundary line. No other individual used the land. Blanchard’s possession of the disputed strip of land was exclusive.

Proof of the inception of the hostile or nonpermissive use of the disputed area also must be “clear and unequivocal.” Johnson v. Raddohl, 226 Minn. 343, 345, 32 N.W.2d 860, 862 (1948); see Lambert v. Bongard, 648 N.W.2d 712, 714 (Minn. App. 2002), review denied (Minn. Sept. 25, 2002). A disseizor establishes hostile use when the disseizor takes possession of land as if it were the disseizor’s to the exclusion of all others. Engquist, 243 Minn. at 504, 68 N.W.2d at 415. The disseizor’s possession must be in the nature of a permanent occupancy rather than a mere trespass. In re Register Title in St. Louis County, 125 Minn. 484, 489, 147 N.W. 655, 657 (1914) (originally titled Sinclair v. Matter). “Hostile” possession need not be truly hostile; it is sufficient that the disseizor occupies the land merely by a mistake as to a true boundary location. Mellenthin v. Brantman, 211 Minn. 336, 340, 1 N.W.2d 141, 143 (1941); Fredericksen v. Henke, 167 Minn. 356, 360, 209 N.W. 257, 259 (1926). But if the disseizor recognizes that the disseized actually owns the land, the possession is no longer adverse. Mitchell v. Green, 125 Minn. 24, 28, 145 N.W. 404, 405 (1914); see also Stanard, 453 N.W.2d at 736 (reasoning that continuous use of property for 15-year period was broken by acknowledgement of the owner’s title by the adverse possessor before the statute had run in her favor).

Here, the district court found that Blanchard’s use of the easternmost 160 feet of the disputed parcel was hostile, and much of the record supports the district court’s findings. The record establishes that Blanchard occupied the easternmost 160 feet of the disputed 32-foot strip of land because she and the Wilsons, after measuring the boundary location, believed she owned the disputed property. Thus, Blanchard initially took possession of the strip of land to the exclusion of the Wilsons based on a mistake as to the actual boundary location. Accordingly, the district court was correct that the possession was originally hostile.

But the district court overlooked a legally significant, uncontroverted fact. The record establishes that five years later, in 1987, when discussing the boundary line with the Zercks, Blanchard admitted that the old outhouse she had built on the 32-foot strip of land was located on the Zercks’ land. Ms. Zerck testified that Blanchard told her “that she thought that her old outhouse was across the line and then when they built a new one she’d be sure that it was moved so it was not on our -- on our property anymore.” Several years later, when Blanchard constructed a new outhouse, she did so north of the survey line.

Blanchard’s statement to the Zercks interrupted her hostile possession. By acknowledging that the Zercks owned the 32-foot strip, continued possession of the land while the Zercks lived on the land to the south was not hostile; it was permissive. See Mitchell, 125 Minn. at 28, 145 N.W. at 405. Thus, at best, Blanchard adversely possessed the land without interruption for only five years, from 1982 to 1987. The district court’s finding that Blanchard’s possession of a portion of the 32-foot strip of land was hostile for the entire statutory period is contrary to the uncontroverted facts in the record and is, therefore, clearly erroneous.

As a disseizor, Blanchard also must actually, openly, and continuously use the land from which she intends to exclude others for 15 years in order to acquire title to it. Engquist, 243 Minn. at 504, 68 N.W.2d at 415. “If the adverse possession is interrupted, the possession of the property reverts to the holder of the legal title.” Ganje, 659 N.W.2d at 268. The possession does not again become adverse until a subsequent repudiation of the title previously acknowledged. Olson v. Burk, 94 Minn. 456, 458, 103 N.W. 335, 336 (1905).

Contrary to the district court’s findings, Blanchard failed to demonstrate continuous use of the land for the requisite 15-year period. When Blanchard acknowledged that the Zercks held title to the disputed strip of land, merely five years into the statutory period, the period of continuous adverse possession was interrupted and title reverted to the Zercks. The record does not disclose a subsequent repudiation of the title Blanchard acknowledged previously. To the contrary, Blanchard kept her promise to the Zercks and built a new outhouse on the north side of the survey line, creating an inference that Blanchard continued to acknowledge that she did not own the 32-foot strip of land. Because Blanchard’s use of the disputed area was not continuous for the statutory period, the district court erred in concluding that Blanchard acquired title to the 32-by-160-foot strip of land by adverse possession.

We note that, even if Blanchard had adversely possessed the land for the requisite statutory period, she would have acquired title only to the 32-by-160-foot strip of land, rather than the entire 32-foot strip of land, because that was the only portion of the land that she actually used consistently. Occasional and sporadic use of a piece of property will not satisfy the elements of adverse possession. Stanard,453 N.W.2d at 735 (holding that using land to store equipment during winter months, mowing the land during the summer, and permitting children to play on the land was not sufficient to establish title by adverse possession). In addition, a disseizor may not claim title by adverse possession to land in its natural state simply because it abuts occupied land; the disseizor must use all land to which title is sought. Markusen v. Mortensen, 105 Minn. 10, 14, 116 N.W. 1021, 1023 (1908); Coleman v. N. Pac. R. Co., 36 Minn. 525, 526, 32 N.W. 859, 859 (1887); LeeJoice, 404 N.W.2d at 6. Because Blanchard did not establish by clear and convincing evidence that she actually and continuously used any of the woods lying west of the outhouse, Blanchard could not have acquired title to the remainder of the 32-foot strip of land by adverse possession. See LeeJoice, 404 N.W.2d at 6 (stating that one may not adversely possess land in its natural state).

In conclusion, because Blanchard acknowledged that the Zercks were the rightful owners of the 32-foot strip of land, the period of hostile possession was interrupted. Thus, the record establishes that Blanchard failed to continuously and adversely possess the land for the requisite 15-year period. Accordingly, we affirm that portion of the district court’s decision concluding that Blanchard was not entitled to the wooded part of the disputed property, and we reverse that portion of the district court’s decision awarding Blanchard a 32-by-160-foot piece of the disputed property.

Affirmed in part and reversed in part.