Opinion
No. C4-98-795.
Filed January 12, 1999.
Appeal from the District Court, Pennington County, File No. C2-97-436.
Michael L. Jorgenson, Charlson, Marben Jorgenson, P.A., (for respondents)
Lawrence A. McDowell, Wurst McDowell, Ltd., (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Fred A. Mykleby appeals from a judgment awarding land along the boundary of his property to respondents, Robert N. Brooten and Mary G Brooten, after finding that respondents had acquired title by adverse possession and practical location. We affirm.
FACTS
In 1955, respondents purchased Lots 19 and 20 of Block 8, Porter's Addition to the City of Thief River Falls, Minnesota. At that time, Hazel Bakken owned Lots 17 and 18 of Block 8. The south boundary line of Lot 19 abuts the north line of Lot 18. In 1980, appellant purchased the Bakken property. In 1994, appellant had his property surveyed and determined that the property line between his and respondents' property was 3.5 feet north of the line that had been relied on since 1955.
In 1955, Bakken showed respondents what she believed to be the boundary line between their respective properties, which was marked at the west-end by a stake and a tin can and followed a row of trees on Bakken's property. From that point on, respondents mowed, raked and watered the property up to that line, chained their dogs so that they could go up to the edge of that boundary line, and piled snow up to that line. In 1958, respondents put a rock garden in the now disputed area; in 1971, respondents built a concrete patio that extended into the area; and, sometime during 1989, planted a maple tree in the area. Bakken never used the property in the disputed area.
Appellant was aware of the boundary line that Bakken and respondents had relied on and did not use the property north of that line until at least 1985. Appellant did not inform respondent of his objection to this line until 1993. Both parties then used the property through 1997.
The district court concluded, as a matter of law, that respondents are the owners of the north three and one-half feet of Lot Eighteen (18), Block Eight (8), Porter's Addition to the City of Thief River Falls, as a result of both adverse possession and practical location.
DECISION
This court's review is limited to the question of whether the evidence sustains the trial court's findings of fact and conclusions of law. Pickar v. Erickson , 382 N.W.2d 536, 538 (Minn.App. 1986). A trial court's findings of fact will not be set aside unless they are clearly erroneous. Grubb v. State, 433 N.W.2d 915, 917 (Minn.App. 1988), review denied (Minn. Feb. 22, 1989). Once the trial court has found adverse possession by clear and convincing evidence, appellant has the burden to show 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)).
In order to gain title by adverse possession, a party must show by clear and convincing evidence that the possession was actual, open, hostile, continuous, and exclusive for 15 years prior to the action determining title. Minn. Stat. § 541.02 (1996) (requiring possession within 15 years before bringing of action); Roemer v. Eversman , 304 N.W.2d 653, 653 (Minn. 1981) (citing Ehle v. Prosser , 293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972), for actual, open, hostile, continuous, and exclusive requirements).
Appellant argues that the requirements for actual possession were not satisfied until 1971, when respondents built their patio partially on the disputed property. The trial court concluded that the actions of respondents, which included mowing, raking, and watering the land, as well as building a rock garden on the disputed property, were enough to demonstrate actual possession, and we agree. See Stanard v. Urban, 453 N.W.2d 733, 735 (Minn.App. 1990) (although mowing and maintaining property during summer, storing lake equipment on property in winter, and allowing children to play on property did not satisfy requirement of actual possession, additional act of building storage shed on property did), review denied (Minn. June 15, 1990); Grubb , 433 N.W.2d at 918 (actual uses, satisfying requirement of adverse possession, included grazing of cattle and sheep, building and maintaining fences, removing gravel, quarry rock and trees, and engaging in conservation practices on land).
To meet the requirement for open possession, a party must make it known that he is claiming the property so the true owner has warning that if he acquiesces, adverse rights may be established against him. See Romans v. Nadler , 217 Minn. 174, 181, 14 N.W.2d 482, 486 (1944) (requiring disseizor claiming title by adverse possession to show some act additional to periodic entry onto land). Since the purchase of the property in 1955, respondents openly demonstrated their claim of right to the disputed property.
"[H]ostile possession `is manifested by (the disseizor's) acts in improving and occupying [the land] under such apparent claim.'" Roemer, 304 N.W.2d at 653 (quoting Seymour, Sabin Co. v. Carli , 31 Minn. 81, 84, 16 N.W. 495, 496 (1883)). Appellant argues that respondents' possession of the disputed property began as permissive possession and did not become hostile until the construction of the patio in 1971. Appellant relies on Weis v. Kozak , 410 N.W.2d 903, 906 (Minn.App. 1987), to support that where possession and use are permissive at the inception, the continual use is also permissive until the contrary is affirmatively shown.
In Weis , the parties put a fence between their properties, without actually determining the boundary lines, to prevent mingling of cattle. Id. at 905. Shortly after the fence was built, the parties determined the fence was not on the boundary line but agreed to leave the fence in place to avoid moving and surveying costs. Id. The court concluded that, when the parties agreed to leave the fence undisturbed, this was "an apparent mutual grant of permission for each party to use the available land." Id. at 906. The court concluded that there was "no evidence [appellant] communicated an adverse intent to [respondent] or occupied the property in an attempt to claim it as his own." Id.
In contrast here, respondents did not take possession of the property with the owner's permission, but, rather, took possession with the mutual understanding that the property actually belonged to respondent. See Grubb , 433 N.W.2d at 918 (for possession to be hostile, "the disseizor must intend to exclude the world and treat the disputed property" as his own); Fredericksen v. Henke , 167 Minn. 356, 360, 209 N.W. 257, 259 (1926) (occupancy beyond boundary line, under mistake as to true line, but under claim of title, is disseisin and makes possession adverse). The trial court did not err in finding hostile possession of the property by respondent beginning in 1955, because he claimed the property to be his own from then on. See Grubb, 433 N.W.2d at 918 (finding hostile possession where disseizor treated disputed property as part of own property).
The trial court concluded that respondents were in continuous possession of the disputed property from 1955 to 1993, satisfying the 15-year minimum time period. See Minn. Stat. § 541.02 (requiring possession for at least 15 years). The trial court also recognized that, even if the possession requirement was not triggered until the building of the rock garden in 1958, the 15-year time period was satisfied in 1973. The trial court also concluded that once the 15 years had passed, (1970 or 1973), respondents had acquired title by adverse possession. See Fredericksen, 167 Minn. at 361, 209 N.W. at 259 (in maintaining title, acquired by adverse possession, it is not necessary to continue adverse possession beyond time when title is acquired).
Appellant relies on Stanard to contend that the triggering event, which began the 15-year time period, did not occur until respondents built the patio partially on the disputed property in 1971. See 453 N.W.2d at 735-36 (despite mowing and maintaining property in summer, storing lake equipment on it in winter, and allowing grandchildren to play on property, adverse possession was not found until additional act of building storage shed). However, the trial court found that the building of the rock garden in 1958, in addition to the mowing, watering, and raking, was sufficient to trigger the 15-year time period required for adverse possession. We agree.
The trial court did not err in finding that respondents had continuous possession of the property for at least the 15-year time period and that respondents had gained title by adverse possession. Because respondents have taken title of the property by adverse possession, we decline to address the issue of possession by practical location.