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Adverse actions attract appellate attention

The doctrine of adverse possession is one that law students invariably encounter early in their education and rarely see again later in their careers.

The ancient tenet, which allows title to real estate to be obtained without an acquisition or conveyance, was given attention recently in a trio of decisions of the Minnesota Court of Appeals.  Two of the cases concurrently-decided involved boundary disputes in which the trial court found in favor of the adverse possession claimants; and the appellate court affirmed those determinations.  The other was an intra-family dispute in which the adverse claimant lost.

Dike decision

A dispute over a property line between two real estate parcels in Norman County resulted in a victory for the adverse claimant in Schnabel v. Rask, 2012 WL 302423 (Minn. App. July 23, 2012)(unpublished).  After about two years of disputing a boundary location between the respective pieces of property, the brouhaha escalated when a survey showed that a large portion of a dike that apparently was on one piece of property actually was on the property of the neighbors and, conversely, a low road and wooded area that was thought to be on the neighbor’s property actually was on the next door land.

The Norman County District Court granted the dike area and a 10-foot easement to repair and maintain the dike to one side, while awarding the low road and wooded area to the other property owners.   In both cases, the rulings were based upon adverse possession of their respective land, despite the legal title to those pieces of properties belonging to the other land owners. The land awarded around the dike area was not challenged on appeal, but the property owner who lost ownership of the low road and wood on adverse possession grounds appealed that determination.

The Appellate Court affirmed, holding that the low road and wooded area was acquired by adverse possession. The elements of adverse possession were established, consisting of “actual, hostile, exclusive, and continuous possession” for a 15-year statutory period.  These factors must be shown “by clear and convincing evidence.”  The low road on the land “had long been used by tenant farmers to access the property,” adjacent to a strip of woods.  All of the elements of adverse possession existed, including “maintaining and using the low road, trimming trees, installing a culvert, and digging a ditch on the disputed property … as if it belonged to them.

The drawing of boundary lines by the trial court also was upheld.  The boundary location developed by the trial court was “reasonably supported by the evidence,” including testimony of one of two competing surveyors.  Therefore, the low road and adjoining wooded area was transferred, by adverse possession, from one land owner to the other.

Commercial clash

A dispute between owners of residential property near Hermantown and the owner of an adjacent gas station, including a restaurant, which all were once part of a common parcel, was the subject of an adverse possession ruling in The LeBlanc Brothers v. Fish, 2012 WL 3023488(Minn. App. July 23, 2012)(unpublished).  The dispute revolved around three separate parcels on the residential property, which were encroached upon by activity from the next-door gas station property.

The St. Louis County District Court granted title to the three parcels of land by adverse possession by the owner of the commercial facility and the homeowners appealed.  The Appellate Court affirmed, holding that the three dispute parcels were acquired by the owner of the commercial property by adverse possession.  The current commercial owners had owned the property for only 11 years, 4 years short of the statutory 15 year minimum. Therefore, to prevail, they needed their possession to be “tacked together” with the predecessor owner.

The evidence established that there was sufficient evidence for “tacking purposes” to link the continuity of ownership for purposes of adverse possession.  The prior owner was “in privity” with the current owner, which is an essential requirement to have their respective ownership periods “properly tacked … together” to meet the 15-year statutory minimum.

The other elements of adverse possession – actual, open, hostile, and continuous and exclusive use – also were established for each of the three parcels.  One of the parcels was subject to adverse possession, in part, because the owner of the commercial property and the predecessor owner “mowed the grassy area in the summer and plowed snow … in the winter,” which constitutes a “continuous and hostile” use of the land.  Another parcel came within the purview of adverse possession by installing underground petroleum tanks and a swal, and these “improvements constitute actual, open, and hostile possession … continuous” for the 15 year period.   Another parcel also was deemed to fall within the adverse possession doctrine because of the construction of a berm to retain spilled petroleum products and placement of a light fixture illuminating a portion of the gas station, which also constitute “possession of the land with the intent to hold it and exclude others.”

Intestate Issues

An adverse possession claim by the sole surviving child of a farmer who died intestate thirty years ago was rejected in Jokela v. Jokela, 2012 WL 3553110 (Minn. App. Aug. 20, 2012)(unpublished).  The case concerned about 600 acres of farmland in Becker County, which the surviving son claimed by adverse possession after children of his two deceased siblings sought equal division of the property among the three descendants and their families.

The Becker County District Court divided the property equally, despite the adverse possession claim by the surviving son who lived on the homestead.  The appellate court affirmed, reasoning that the son did not establish “hostile possession,” one of the criteria for his claim.

Following their father’s death, the siblings did not probate the estate but got along “harmoniously.”  The two other siblings were allowed to hunt on the property, one of them harvested trees on it, and the other sold farming produce with the homesteading family.  Because there was a co-tenancy relationship, the adverse claimant must show “an express or implicit ouster” of the others, which he failed to do in his deposition or post-deposition affidavit.  The permissive use of the property by the siblings and their generally harmonious relationships” did not establish “the type of hostility” necessary to restrict the legal parameter of equal ownership by the three defendant co-tenants.

A claim based on “general principles of equity” also failed.  Equitable relief was inappropriate because it would conflict with the requirements of adverse possession, which did not exist in this case.

The usual methods of conveying title to real property remain purchase, sale and inheritance.  But, as this pair of cases reflects, ownership may, in limited circumstances, be obtained through the time-honored doctrine of adverse possession.

Originally published in the October 8, 2012 edition of Minnesota Lawyer.