Ehle v. Prosser

• Decision Date: 05 May 1972
• Docket Number: No. 43138,43138
• Citation: 293 Minn. 183,197 N.W.2d 458
• Parties: Fayette EHLE, et al., Appellants, v. Margaret K. PROSSER, et al., Respondents.
• Court: Minnesota Supreme Court

Page 458

197 N.W.2d 458

293 Minn. 183

Fayette EHLE, et al., Appellants, v. Margaret K. PROSSER, et al., Respondents.

No. 43138.

Supreme Court of Minnesota.

May 5, 1972.

Rehearing Denied May 31, 1972.

Syllabus by the Court

1. Payment of taxes for 5 consecutive years by an adverse possessor of property is not a prerequisite under Minn.St. 541.02 to establish adverse title where the disputed property is not separately assessed for taxation.

2. Possession by an adverse holder must be actual, open, hostile, continuous, and exclusive. Evidence which clearly shows that for the period required by the statute the adverse claimant treated the disputed property in a manner generally associated with the ownership of similar type properties in the same area is sufficient to establish title by adverse possession.

3. Acquiescence and permissive use are not synonymous, and a record owner who silently permits acts of ownership to be exercised by a disseizor of his property for the statutory period will be divested of his record title.

4. Adverse possession for the statutory period not only bars any remedy of the record owner, but extinguishes his rights in the property and vests a perfect title in the adverse holder.

William A. Lindquist, Winona, for appellants.

Peterson, Challeen, Delano & Thompson, Winona, for respondents.

Heard before KNUTSON, C.J., and OTIS, ROGOSHESKE, and TODD, JJ.

TODD, Justice.

Plaintiffs appeal from a judgment of the District Court of Winona County denying their claims to certain disputed property by reason of adverse possession or establishment of boundary lines as provided by our statutes. Plaintiffs challenge the trial court's holding that payment of real estate taxes for 5 years is an absolute prerequisite in all cases for establishing title by adverse possession. The evidence supports the claim of plaintiffs to title to the disputed property, and the decision of the trial court is reversed.

Plaintiffs Kay Ehle Kobus and James Ehle are the fee owners, subject to a life estate in plaintiff Fayette Ehle, of the following described property situated in Winona County, Minnesota:

'Commencing at a point where the meander line of the Mississippi River would intersect the easterly line of Monroe Street in the Village of Homer, Winona County, Minnesota, if the same were extended northerly; thence southerly along said extension and along the westerly line of Block 22 to the northerly line of Ann Street; thence easterly along the northerly line of said Ann Street to the easterly line of Lot 5, Block 22; thence northerly along said easterly line of said Lot 5, in a direct line north to said meander line of said Mississippi River; thence westerly along said meander line of said Mississippi River to the place of beginning, excepting the right of way of the Chicago, Milwaukee & St. Paul Railway Company.

'Also conveying a strip of land 33 feet wide extending from the north line of said Chicago, Milwaukee & St. Paul Railway Company's right of way to the Mississippi River, the east boundary of said strip of land being the east line of Monroe Street Produced to said river, together with the perpetual right to cross Lots One, Two, Three and Four (1, 2, 3 & 4) in said Block No. 22 in said Village of Homer.'

Defendants, brother and sister, are the record owners of the following described property adjacent to the above-described property:

'Commencing at a point where the meander line of the Mississippi River would intersect the westerly line of Lot 4 in Block 22 in the Village of Homer, if said westerly line of said Lot 4 were extended northerly in a straight line to the Mississippi River, thence southerly along the extension of said westerly line of Lot 4 to the northerly line of Ann Street, which point is also the southwesterly corner of said Lot 4, thence easterly along the northerly line of Ann Street to the easterly line of Lot 3 in Block 22, thence northerly along the easterly line of said Lot 3 to the northeast corner of said Lot 3, thence continuing in a straight line northerly along what would be the extension of the easterly line of said Lot 3 if the same were extended northerly, in a straight line to the Mississippi River, thence westerly along the meander line of said Mississippi River to the place of beginning, excepting the right of way of the Chicago, Milwaukee, St. Paul and Pacific Railway Company. Also a perpetual right to cross Lots 1 and 2 in Block 22 of said Village of Homer.'

Plaintiffs acquired title to their property under a probate decree in the estate of Mayda O. Roesner on September 25, 1968. Mrs. Roesner acquired title on May 31, 1957, from the estate of her husband, Louis G. Roesner, who acquired title to the property by deed dated June 30, 1920.

Defendants acquired title to their property by probate deed from the estate of Theodore Heck dated September 3, 1948. Theodore Heck, Alfred Meier, and Otto Weibel owned both properties prior to the conveyance in 1920 to Louis Roesner. Theodore Heck subsequently acquired the interest of Meier and Weibel on December 17, 1942.

Louis Roesner built a year-round home on his property in 1928. In 1936 Mr. Roesner married Mayda Ehle, the mother of plaintiff Fayette Ehle. At this time Mr. Roesner made substantial improvements to his property and to a portion of Lot 4 of the above-described property of the defendants lying easterly of the property of which Roesner was record owner. The disputed property consists of the westerly 37 feet of the defendants' property, the parties having stipulated to the location of the common boundary line between Lots 4 and 5 following a survey of plaintiffs' property.

In 1936 when Mr. Roesner made improvements to his home, he also landscaped his yard, including the disputed area. He established a parking area on the easterly edge of the disputed area; constructed a stone walkway from that parking area to his home; placed two stone monuments at the beginning of the stone walkway; placed, and planted flowers in, a 3-foot urn just south of the above monuments; erected clothes poles near the easterly edge of the disputed area, constructing a walkway from the clothes poles area to his home; planted three sets of hedges, two parallel with the clothes pole area and one near the parking area; planted grass in the disputed area; and maintained the area.

Sometime thereafter, Mayda Roesner had a tree removed in the disputed area, and there appeared on one of the trees in the disputed area a sign placed there by Mr. Roesner, saying 'Private--Keep Out.' There is no evidence that the defendants or their predecessors in interest in any way objected or asserted any claim to the disputed property prior to 1966, at which time defendants asserted ownership. The dispute arising therefrom led to this litigation.

Defendants claim that they were aware of the true location of the property line at the time of their acquisition of title in 1948, but admit that they never communicated this alleged knowledge to the plaintiffs or any of their predecessors in title. There is some evidence that the defendants on occasions used the clothes poles and the parking area, but there is no evidence that this use was under a claim of ownership. Further, it appears that defendant Margaret Prosser in 1965 removed one of the hedges planted on the easterly side of the clothes pole area and adjacent to the disputed boundary line because the hedge had suffered damage in the 1965 flood, but she admitted that she caused this removal to be made for esthetic reasons and not by reason of any claim of ownership.

The parcels of real estate of the plaintiffs and the defendants were separately assessed and taxed. There was no separate assessment or taxation of the 37-foot strip of disputed property. There is no evidence that either the plaintiffs or the defendants intended that the roadway easement reserved in the deed of the plaintiffs' predecessors in title across Lots 3 and 4 of Block 22, Village of Homer, would be affected in any way by this litigation.

The matter was tried before the court without a jury on October 10 and 11, 1968, the Honorable Arnold Hatfield presiding. The court entered its findings in favor of the defendants on November 26, 1968, and the plaintiffs moved for amended findings or a new trial before Judge Hatfield on December 9, 1968. On September 1, 1969, without ruling on plaintiffs' motion, Judge Hatfield retired for reasons of ill health. Subsequently, by appointment of the chief judge of the judicial district, Judge Hatfield served as a retired judge from January 26, 1970, to June 30, 1970. On July 8, 1970, he entered his order correcting some typographical errors as to direction in the original order, but otherwise denying plaintiffs' motion.

Thereafter, plaintiffs moved the court, the Honorable Glenn E. Kelley presiding, for an order adjudging the amended findings of Judge Hatfield dated July 8, 1970, null and void, and asking for a rehearing of plaintiffs' original motion for amended findings or a new trial. At the same time, a supplemental motion was filed asking for amended findings or a new trial. Both motions were denied, and judgment was entered in favor of defendants on April 5, 1971, adjudging defendants the owners of the disputed land and holding that plaintiffs had no interest whatever in the property of the defendants, a determination which necessarily terminated the easement reserved in the original deed. From this judgment and the orders denying their motions for a new trial, the plaintiffs appeal.

Plaintiffs question the validity of Judge Hatfield's order of July 8, 1970, upon which the judgment is based, since his appointment as a retired judge had expired before that date. We do not reach the issue, since this case will be disposed of on other grounds.

1. The trial court in a memorandum accompanying its order of November 26, 1968, stated that the plaintiffs, in order to acquire title to land by adverse...