Ebenhoh v. Hodgman, C4-01-1439.

• Decision Date: 23 April 2002
• Docket Number: No. C4-01-1439.,C4-01-1439.
• Citation: 642 N.W.2d 104
• Parties: James E. EBENHOH, et al., Appellants, v. Frank J. HODGMAN, et al., Respondents.
• Court: Minnesota Court of Appeals

642 N.W.2d 104

James E. EBENHOH, et al., Appellants, v. Frank J. HODGMAN, et al., Respondents.

No. C4-01-1439.

Court of Appeals of Minnesota.

April 23, 2002.

Steven J. Hovey, Hoversten, Johnson, Beckmann & Hovey, Austin, for appellants.

Brian L. Weber, Weber Law Offices, Dodge Center, for respondents.

Considered and decided by G. BARRY ANDERSON, Presiding Judge, HARTEN, Judge, and STONEBURNER, Judge.

OPINION

G. BARRY ANDERSON, Judge.

Appellants James and Carma Ebenhoh brought a district court action against respondents claiming ownership of a disputed tract of property through adverse possession and boundary by practical location. The district court concluded that appellants failed to show exclusive, continuous, and hostile use of the disputed tract and therefore did not satisfy the elements of adverse possession. Likewise, the district court concluded that respondents did not sufficiently acquiesce to a fence line and therefore appellants failed to establish a boundary by practical location. We reverse and remand.

FACTS

In 1942, Richard and Alma Tincher owned an 80-acre parcel of farmland in Dodge County. On the same day in 1942, the Tinchers deeded the north 40 acres (Hodgman parcel) to LeRoyal Sanders (Sanders), and the south 40 acres (Ebenhoh parcel) to Edward Ebenhoh, father of appellant James Ebenhoh (Ebenhoh). That same year, Ebenhoh's father constructed an east-west fence, made of steel and wood posts and barbed wire, dividing the two parcels. It is unclear why Ebenhoh's father constructed the fence.

Ebenhoh testified that between 1942 and 1955 his father repaired the fence every year to ensure that the cattle that grazed on the Ebenhoh parcel, after the crops were harvested, would not stray. In 1956, the cattle operation ceased. After 1956, however, Ebenhoh and his father continued to farm the Ebenhoh parcel. Ebenhoh testified that they would plant crops close to the fence, probably within a foot of the fence line where possible.

On February 6, 1968, Ebenhoh purchased the Ebenhoh parcel from his father. Between 1969 and 1984, Ebenhoh continued to farm the Ebenhoh parcel in the same manner by planting crops close to the fence line. In 1985, Ebenhoh experienced financial difficulties and leased the Ebenhoh parcel to respondent Frank Hodgman and another individual. Between 1986 and 1996, Ebenhoh leased the Ebenhoh parcel to a canning company, which cultivated asparagus. Since 1996, Ebenhoh's son-in-law has leased the Ebenhoh parcel, and continues to farm the property.

Respondent Frank Hodgman testified that he purchased the Hodgman parcel from his parents in 1976, who had purchased the property from Sanders in 1955. He also testified that he sold the Hodgman parcel to his brother, respondent Donald Hodgman, in 1993.

A surveyor testified that respondent Donald Hodgman retained him in 1993 to survey the Hodgman parcel (1993 survey). The surveyor testified that the 1942 fence line was located approximately 11 feet north of the "true" boundary line dividing the two parcels. Appellants concede that the 1993 survey correctly locates the true boundary line between the two parcels.

In August 2000, appellants brought a district court action to establish the boundary between the two parcels. Ebenhoh alleged that the 1942 fence line constituted the boundary between the two parcels and that he, his father, and his lessees, have adversely possessed the disputed tract for the 15-year statutory period. Ebenhoh also alleged that the fence line constituted a boundary by practical location.

The district court concluded that although Ebenhoh showed that he openly and actually used the disputed tract for 15 years, he failed to show that his use was exclusive, continuous, or hostile. The court also concluded that Ebenhoh failed to show that the fence line constituted a boundary by practical location. This appeal followed.

ISSUE

Are appellants entitled to the disputed tract through adverse possession?

ANALYSIS

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

Minn. R. Civ. P. 52.01; see also Grubb v. State, 433 N.W.2d 915, 917 (Minn.App. 1988),

review denied (Minn. Feb. 22, 1989). In boundary-line cases, the findings of the district court will not be disturbed unless "the evidence taken as a whole furnishes no substantial support for them or where it is manifestly or palpably contrary to the findings." Engquist v. Wirtjes, 243 Minn. 502, 506, 68 N.W.2d 412, 416 (1955) (quotation omitted). 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. Donovan v. Dixon, 261 Minn. 455, 460, 113 N.W.2d 432, 435 (1962) (noting that "it is for this court to determine whether the findings support the conclusions of law and the judgment").

Before title through adverse possession can be established, there must be clear and convincing evidence of actual, open, hostile, continuous, and exclusive possession by the alleged disseizor for the statutory 15 year period. Engquist, 243 Minn. at 504, 68 N.W.2d at 415; see also Minn.Stat. § 541.02 (2000). Evidence tending to establish adverse possession must be strictly construed, "without resort to any inference or presumption in favor of the disseizor, but with the indulgence of every presumption against him." Village of Newport v. Taylor, 225 Minn. 299, 303, 30 N.W.2d 588, 591 (1948); see also Standard v. Urban, 453 N.W.2d 733, 735 (Minn. App.1990)

("The evidence must * * * amount to clear and positive proof before title by adverse possession will be granted." (citation omitted)), review denied (Minn. June 15, 1990).

[T]he erection of a fence by an adjoining landowner has little significance on the issue of adverse possession unless the disseizor uses and occupies the land up to the line established by the fence.

Engquist, 243 Minn. at 505, 68 N.W.2d at 415 (citation omitted).

Appellants argue the district court erred as a matter of law when it concluded that Ebenhoh's use of the disputed tract was not exclusive, continuous, or hostile. Respondents do not challenge the district court's conclusions that Ebenhoh's use of the disputed tract was both actual and open; therefore, our review is limited to whether Ebenhoh's use of the disputed tract constituted, as a matter of law, exclusive, continuous, and hostile use of the disputed tract for the statutory 15-year period.

We conclude the district court erred as a matter of law when it concluded that Ebenhoh did not establish, by clear and convincing evidence, exclusive, continuous, and hostile use of the disputed tract for 15 years.

A. Exclusivity

The exclusivity requirement is met if the disseizor takes "possession of the land as if it were his own with the intention of using it to the exclusion of others." Wheeler v. Newman, 394 N.W.2d 620, 623 (Minn.App.1986) (citing Thomas v. Mrkonich, 247 Minn. 481, 484, 78 N.W.2d 386, 388 (1956)).

The district court found that respondents and other parties "continued to use the disputed area for hunting and fishing purposes throughout the years." Consequently, the district court concluded that Ebenhoh did not exclusively use the disputed tract for the statutory period. The district court's factual finding that respondents and other third parties used the disputed tract for hunting and fishing is clearly erroneous. There is nothing in the record that suggests the disputed tract was ever used for hunting and fishing. Respondents agree. Respondents, however, argue that there is other evidence in the record that suggests Ebenhoh's use of the disputed tract was not exclusive: (1) respondents' father, Ralph Hodgman, briefly entered the area in 1964 to straighten a creek that meandered near the fence line; and (2) the parties assisted each other with their respective farm operations.

The record, however, is clear that Ebenhoh, his father, and his lessees were the only individuals to use the disputed tract, save for the brief and insubstantial entries onto the property referenced by respondents. Ebenhoh testified that between 1942 and 1956 the fence prevented cattle from leaving the Ebenhoh parcel. It is also undisputed that for 30 years, between 1956 and 1986, Ebenhoh, his father, or his lessees planted crops as close as possible to the fence line.¹ Respondent Frank Hodgman testified that during his ownership of the Hodgman parcel between 1976 and 1993 he never used the property abutting the fence line. It is also undisputed that it was not until 1998, 56 years after the fence was constructed, that respondent Donald Hodgman placed white flags in Ebenhoh's soybean field marking the 1993 survey line.

There is simply no evidence in the record that the disputed tract was used, save for a few intermittent entries, by anybody but Ebenhoh, his father, and his lessees. Therefore, the district court's finding of fact that the tract was used for hunting and fishing is clearly erroneous. Moreover, the court's conclusion of law that Ebenhoh did not exclusively use the disputed tract for the statutory period was also erroneous and appellants have established, as a matter of law, that they exclusively used the disputed tract for the statutory period.

B. Continuity

Adverse possession for any consecutive 15 year period is sufficient to establish continuity of use, Kelley v. Green, 142 Minn. 82, 84, 170 N.W. 922, 923 (1919), and the statutory period must only be completed before bringing an adverse-possession action. Dean v. Goddard, 55 Minn. 290, 293-94, 56 N.W. 1060, 1061 (1893). "The possession of successive occupants, if there is privity between them, may be tacked to make adverse possession for the requisite period." Fredericksen v. Henke, 167 Minn. 356, 360, 209 N.W. 257, 259 (1926). "The possession of a tenant is, as to third parties, the...