Gimbel v. Magrum
Decision Date | 27 August 2020 |
Docket Number | No. 20190412,20190412 |
Citation | 947 N.W.2d 891 |
Parties | Leslie GIMBEL, Plaintiff and Appellee v. Jeff MAGRUM and Donna Magrum, Defendants and Appellants |
Court | North Dakota Supreme Court |
Garrett D. Ludwig, Mandan, ND, for plaintiff and appellee.
Mary E. Depuydt, Wishek, ND, for defendants and appellants.
[¶1] Jeff and Donna Magrum appeal from a district court judgment quieting title to real estate in Leslie Gimbel. The Magrums argue the court erred when it determined they did not acquire ownership of the property by adverse possession or acquiescence. We affirm.
[¶2] The dispute concerns two parcels of real estate located in Emmons County. Gimbel owns the northern parcel. The Magrums own the southern parcel. A trail runs in a general east-west direction near the southern border of Gimbel's property and the northern border of the Magrums’ property. The Magrums annually cut and remove hay from the area south of the trail. Their predecessors-in-interest did the same. The Magrums built a fence south of, and parallel to, the trail.
[¶3] Gimbel commissioned a survey after the Magrums built the fence. The surveyor determined the property line was located south of the trail, within the area enclosed by the Magrums’ fence. Gimbel submitted a plat of the survey to the County for approval. The County approved the plat, and Gimbel recorded it. Gimbel informed the Magrums he believed they had encroached on his property and requested they remove the fence.
[¶4] This litigation ensued. Gimbel filed a complaint requesting the district court quiet title in his favor. The Magrums brought a counterclaim asserting that they hold legal title to the property or, alternatively, that they acquired ownership by adverse possession or acquiescence. After a bench trial, the court found Gimbel owned the property and the Magrums did not acquire any interest by adverse possession or acquiescence.
[¶5] We apply the following standard when reviewing an appeal from a bench trial:
Larson v. Tonneson, 2019 ND 230, ¶ 10, 933 N.W.2d 84.
[¶6] The Magrums assert the district court erred when it determined they did not obtain ownership of the property by adverse possession. Their claim to title is based on actual occupancy and is not founded upon a written instrument.
[¶7] The requirements for adverse possession not founded upon a written instrument are explained in Tonneson , 2019 ND 230, ¶¶ 12-14, 933 N.W.2d 84 :
[¶8] The Magrums claim they acquired ownership of the disputed property by adverse possession because they and their predecessors hayed the land annually for more than twenty years.
[¶9] The district court found the annual cutting of hay, "which occurred once annually the years it occurred, was not cultivation, continuous, and exclusive of Gimbel's right of title ...." The court also found the haying was not adverse to Gimbel. The court's findings are supported by the evidence. Gimbel testified he always allowed others to hay the disputed property for free because it was uneconomical to hay and he did not want the hay. In addition, it is undisputed that the property is raw pasture land existing in its natural state. Because the evidence supports the district court's findings concerning a lack of adversity and a lack of cultivation, the court's determination that the Magrums did not establish adverse possession is not clearly erroneous.
[¶10] The Magrums assert the district court erred when it determined they did not obtain ownership of the property by acquiescence.
[¶11] The doctrine of acquiescence applies when parties mutually mistake a boundary as a property line. Sauter, 2018 ND 57, ¶ 10, 907 N.W.2d 370.
Moody, 2015 ND 204, ¶ 23, 868 N.W.2d 491.
[¶12] The Magrums claim they, their predecessors, and Gimbel all mistook the trail as the property line. They argue the district court erred by finding no mutual mistake concerning the property...
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