Benson v. Taralseth

• Decision Date: 20 February 1986
• Docket Number: No. 10968,10968
• Parties: Richard M. BENSON, Plaintiff and Appellant, v. A.R. TARALSETH, Kenneth M. Skuza and June T. Skuza, John Aitcheson and Thelma Aitcheson, Thomas K. Klimpel, Merle L. Zahn and Eunice A. Zahn, Bill L. Grosche and Bette J. Grosche, American Bank and Trust Company, Theodore W. Handeland and Ethel May Handeland, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 649

382 N.W.2d 649

Richard M. BENSON, Plaintiff and Appellant, v. A.R. TARALSETH, Kenneth M. Skuza and June T. Skuza, John

Aitcheson and Thelma Aitcheson, Thomas K. Klimpel, Merle L.

Zahn and Eunice A. Zahn, Bill L. Grosche and Bette J.

Grosche, American Bank and Trust Company, Theodore W.

Handeland and Ethel May Handeland, Defendants and Appellees.

Civ. No. 10968.

Supreme Court of North Dakota.

Feb. 20, 1986.

Rehearing Denied March 19, 1986.

Teevens, Johnson, & Montgomery, Minot, for plaintiff and appellant; argued by Bruce R. Montgomery.

McGee, Hankla, Backes & Wheeler, Minot, for defendant and appellee A.R. Taralseth; argued by Robert A. Wheeler.

Kenner, Halvorson & Sturdevant, Minot, for defendants and appellees Kenneth M. Skuza and June T. Skuza, John Aitcheson and Thelma Aitcheson, Thomas K. Klimpel, Merle L. Zahn and Eunice A. Zahn, Bill L. Grosche and Bette J. Grosche, American Bank and Trust Company, Theodore W. Handeland and Ethel May Handeland; argued by Robert A. Wheeler and Harris P. Kenner.

ERICKSTAD, Chief Justice.

Richard M. Benson, plaintiff, appeals from the district court judgment and from the order denying his motion for a new trial. Benson's motion for a new trial challenged the court's conclusion that the defendants had acquired title, pursuant to Section 47-06-03, N.D.C.C., to several lots in the Lake Metigoshe area of Bottineau County. We affirm.

In September 1951 Ruby Benson acquired a parcel of undeveloped and unplatted land in the area of Lake Metigoshe in Bottineau County. The parcel of land was described as follows "COMMENCING at the Northeast corner of Lot 15 in First Addition to Central Park in Section 34, Township 164, Range 75, thence along said addition to the Northwest corner of Lot 7, thence due North 600 feet, thence due east 450 feet thence due South 600 feet to point of beginning being part of Lot 7, Sec. 34, T. 164 R. 75.

"ALSO Lots 14 and 15 in First Addition to Central Park above described."

Richard Benson acquired most of this parcel of land from the estate of Ruby Benson by a deed dated July 3, 1978, and recorded September 7, 1978. ¹

In 1956, Arthur Taralseth acquired a parcel of land adjacent to the undeveloped property then owned by Ruby Benson. Taralseth surveyed, subdivided and platted this land in 1960. A part of the Ruby Benson property was mistakenly included in this plat. That part of Ruby Benson's property included in the plat was part of lot 16 and lots 17 through 22 of what was platted by Taralseth as "First Addition of Longview Addition to Lake Metigoshe." Taralseth testified that he included this part of Ruby Benson's property in the plat because he mistakenly believed it was a part of the property he had purchased in 1956. The property actually purchased by Taralseth in 1956 only included lots 1 through 15 and part of lot 16.

In 1960 and 1961 Taralseth did some minor cleaning of the disputed premises and drove small stakes into the ground to mark the corners of lots 16 through 22.

Lot 17 was conveyed by Taralseth to defendants John and Thelma Aitcheson by a deed dated August 19, 1964, recorded March 25, 1965. A cabin was constructed by Aitchesons on lot 17 in August 1965.

Taralseth conveyed lot 18 to Vernon and Darlene Skaaden by deed dated August 2, 1965, recorded October 27, 1969. Skaadens conveyed lot 18 to defendant Thomas K. Klimpel and Mary Jane Klimpel by deed dated August 31, 1979, recorded February 20, 1980. Klimpels began construction of a cabin on lot 18 in 1980. This cabin was destroyed by a fire in January 1983.

Sometime prior to July 1966, Taralseth deeded lot 19 to Francis and Gloria Olson. In July 1966 Francis and Gloria Olson conveyed lot 19 to Oscar and Verna Olson. Oscar and Verna constructed a cabin on the lot and then conveyed it to Arlin Roland in June 1967. Roland conveyed lot 19 to defendants Merle and Eunice Zahn by a deed dated April 17, 1974, recorded April 18, 1974.

Lot 20 was conveyed by Taralseth to Erling and Luella Martinson by a deed dated August 2, 1965, recorded August 31, 1965. Construction of a cabin on lot 20 began in 1966. Defendants Bill and Bette Grosche are successors in interest to lot 20 through a chain of conveyances.

In 1964 Oscar Handeland received a deed to lot 21 from Taralseth. Improvements were made by Handeland on lot 21 beginning in April 1972. Taralseth deeded lot 22 to Handeland in 1963. Handeland built a cabin on this lot the same year. In 1977 Handeland deeded lots 21 and 22 to defendants Theodore and Ethel Handeland who are presently in possession of these lots.

The district court found that for more than ten years prior to the commencement of this action both Benson and the defendants had been paying taxes on the disputed premises. Benson was assessed and paid taxes as though the land was unplatted while the defendants were assessed taxes on the basis of the plat and improvements. Neither party was aware that the other party was also paying taxes. The County did not discover this double taxation because of the differing land descriptions.

In 1981 Taralseth discovered the overlapping property descriptions and informed Benson of the problem. On July 16, 1982, Benson commenced a quiet title action relative to lots 16 through 22. Taralseth responded by denying that Benson had any interest in lots 16 through 22. In the alternative, Taralseth asserted title to the land was acquired by adverse possession for a period of more than 20 years pursuant to Section 28-01-04, N.D.C.C., or, that the land was acquired by undisputed possession under color of title for a period of more than ten years pursuant to Section 47-06-03, N.D.C.C.

The court concluded that Benson's predecessors in interest held title to the disputed premises prior to losing part of the premises through adverse possession. The court also concluded that the defendants did not have actual, open, and adverse possession for a period of 20 years, and thus, Section 28-01-04, N.D.C.C., was not applicable. It concluded, however, that there had been continuous actual, open, adverse, and undisputed possession of each lot by the defendants commencing at the following times:

"a) Lot 17 in August, 1965;

"b) Lot 18 in 1980;

"c) Lot 19 between July of 1966 and June, 1967;

"d) Lot 20 in 1966;

"e) Lot 21 in April, 1972;

"f) Lot 22 in summer, 1963;"

In addition, the court found that both the plaintiff and defendants had paid all the taxes levied for more than ten years prior to the commencement of this action. In light of these findings, the court concluded that the plaintiff had title to lot 18 and that the defendants had obtained title to lots 17, 19, 20, 21, and 22 by satisfying the requirements of Section 47-06-03, N.D.C.C. The court also found that the parties had stipulated to dismissal of Benson's claim as to lot 16.

On August 21, 1984, Thomas K. Klimpel filed a motion to amend the findings of fact made by the court to include the permanent improvements he had made to lot 18 which he alleged increased the value of the lot by $12,000. This motion also asked the court to amend the conclusions of law to include a lien on lot 18 in favor of Klimpel in the sum of $12,000. The court granted this motion.

Benson made a motion for a new trial pursuant to Rules 59(b)(6) and 59(c)(1) of the North Dakota Rules of Civil Procedure. In his brief in support of motion for new trial, Benson challenged the court's decision to grant Klimpel a $12,000 lien on lot 18, and the court's conclusion that the defendants had satisfied the requirements of Section 47-06-03, N.D.C.C., as it related to lots 17, 19, 20, 21, and 22. The court denied this motion.

Benson has appealed from the court's amended judgment and from the order denying his motion for a new trial. Two issues have been raised on appeal. First, whether or not the court erred in quieting title to lots 17, 19, 20, 21, and 22 in the name of the individual defendants. Second, whether or not the court erred in creating a $12,000 lien on lot 18 in favor of Klimpel for improvements made to lot 18.

The parties entered into an agreement dismissing Benson's claim as to lot 16. Accordingly, lot 16 is not involved in this appeal.

I

The court concluded that the defendants possessing lots 17, 19, 20, 21, and 22 had individually obtained title to these lots by satisfying the requirements of Section 47-06-03, N.D.C.C., which reads, in pertinent part:

"Title to real property--Adverse possession. --A title to real property, vested in any person who has been or hereafter shall be, either alone or including those under whom he claims, in the actual open adverse and undisputed possession of the land under such title for a period of ten years and who, either alone or including those under whom he claims, shall have paid all taxes and assessments legally levied thereon, shall be valid in law."

To be entitled to a decree of adverse possession the property of another must be held by open and hostile possession for a specific time. Burlington Northern, Inc. v. Hall, 322 N.W.2d 233, 241 (N.D.1982). Under Section 28-01-04, N.D.C.C., the required period of time is 20 years. Section 47-06-03, N.D.C.C., permits acquisition of title after 10 years if the adverse possession is under color of title coupled with the payment of taxes. Cranston v. Winters, 238 N.W.2d 647, 650 (N.D.1976). The burden of proving adverse possession rests with the person alleging it and must be established by clear and convincing evidence. Torgerson v. Rose, 339 N.W.2d 79, 84 (N.D.1983); Burlington Northern, Inc. v. Hall, 322 N.W.2d at 241. The determination of whether or not there has been an adverse use is a question of fact which will not be set aside on appeal unless it is clearly erroneous. Torgerson v. Rose, 339 N.W.2d at 84; Burlington Northern, Inc. v. Hall, 322 N.W.2d at 241.

The first argument Benson makes to support his contention that Section 47-06-03, N.D.C.C., was not adequately satisfied by the defendants is that...