Larson v. Tonneson

• Citation: 933 N.W.2d 84
• Decision Date: 12 September 2019
• Docket Number: No. 20180169,20180169
• Parties: Teresa L. LARSON, Janet F. Schelling, and Lynette A. Helgeson, Plaintiffs and Appellees v. Jon TONNESON, Mary Issendorf, in her personal capacity and in her capacity as the personal representative of the Estate of Vesper Shirley, the Estate of Vesper Shirley, and all other persons interested either as heirs, creditors, or otherwise, in the estates of the above-mentioned persons or entities, and all other persons unknown, claiming any interest in or encumbrance upon the property described in the complaint, Defendants and Appellants
• Court: United States State Supreme Court of North Dakota

933 N.W.2d 84

Teresa L. LARSON, Janet F. Schelling, and Lynette A. Helgeson, Plaintiffs and Appellees

v.Jon TONNESON, Mary Issendorf, in her personal capacity and in her capacity as the personal representative of the Estate of Vesper Shirley, the Estate of Vesper Shirley, and all other persons interested either as heirs, creditors, or otherwise, in the estates of the above-mentioned persons or entities, and all other persons unknown, claiming any interest in or encumbrance upon the property described in the complaint, Defendants and Appellants

No. 20180169

Supreme Court of North Dakota.

Filed September 12, 2019

James A. Teigland, Fargo, ND, for plaintiffs and appellees.

Michael S. McIntee, Bottineau, ND, for defendants and appellants.

VandeWalle, Chief Justice.

[¶1] Jon Tonneson and Mary Issendorf, in her personal capacity and as personal representative of the estate of Vesper Shirley, ("defendants") appealed from a judgment quieting title to certain property in Teresa Larson, Janet Schelling, and Lynette Helgeson ("plaintiffs"). We conclude the district court did not clearly err in finding Larson, Schelling, and Helgeson acquired the disputed property by adverse possession. We affirm the judgment but remand the case for entry of a corrected judgment.

I

[¶2] The plaintiffs and defendants are successors in interest to certain property at Lake Metigoshe in Bottineau County. The parties acquired their respective properties through their families beginning in the 1950s. In 2012, the plaintiffs became aware of property boundary issues after a survey was conducted when plaintiffs were attempting to replace a mobile home on the property. At that time, the plaintiffs also discovered a platted roadway ran through their property, though no such roadway existed on the property. The plaintiffs thereafter took steps to vacate the road.

[¶3] In 2014, the Roland Township Board of Supervisors granted a petition to discontinue and vacate a portion of the platted roadway. Landowners in the area also signed an easement covering the roadway actually in use by the owners and the public to ensure access to the various lots, which runs along the northern boundary of the subject property in this case. While the plaintiffs were able to reach some boundary line agreements with neighbors, a dispute remained regarding ownership of the disputed property involved in this case.

[¶4] The lake property at issue is within or adjacent to property platted in July 1950 as Larson’s Beach Addition and is an irregularly-sized tract referred to at trial as comprised of specific parcels making up the whole. The undisputed portion of the property is located along the shore of Lake Metigoshe. The 1950 plat for Larson’s Beach shows the platted roadway—which the district court found had neither been opened nor used—running through the property from an easterly and westerly direction, as well as from a northwesterly direction. A small triangle of land located along the northwesterly edge of the parcel was referred to as the "Tonneson triangle." A larger triangle located along the northeasterly boundary of the parcel was called the "Issendorf triangle." The parties did not dispute plaintiffs' ownership of the largest part of the parcel along the southerly portion of the tract. Rather, the parties disputed ownership of the Tonneson triangle, the Issendorf triangle, and the platted roadway.

[¶5] In 2015, plaintiffs Larson, Schelling, and Helgeson commenced this action to quiet title to disputed portions of that property, claiming they had acquired title to the disputed property by adverse possession. They requested the district court to quiet title to the property in them and decree that the defendants had no estate or interest in, or lien or encumbrance upon, the property. The plaintiffs amended their complaint to include claims for the doctrines of agreed boundaries, acquiescence, and estoppel, and a claim for a prescriptive easement. The defendants Tonneson and Issendorf answered, alleging the plaintiffs were not owners of any property owned by them and requested the complaint be dismissed.

[¶6] On April 27 and 28, 2017, the district court held a bench trial on whether Larson, Schelling, and Helgeson had acquired the Tonneson triangle, the Issendorf triangle, and the platted roadway property by adverse possession. The court received exhibits and heard testimony from plaintiffs Larson and Schelling, defendants Tonneson and Issendorf, the parties' expert land surveyors, and Bottineau County employees. The court and the parties' attorneys also inspected the property.

[¶7] In its subsequent findings the district court detailed the activity of the plaintiffs, including their families and predecessors, on the property:

Since the early 1960s there have been a total of three trailer homes placed on the property, with the 1964 trailer home being replaced by the 1993 mobile home. During the inspection of the property following the trial, it was observed that there were no wheels on the axles of the two trailer homes on the property; however, neither were the trailer homes sufficiently attached to the land so as to become affixed to the real estate. There was cement poured for a mudroom which was attached to Janet’s trailer, although the mud room is no longer there.

While there has been ordinary lawn maintenance, the Plaintiffs and their families also spent time and effort in removing trees and brush, so that the trailer homes could be placed, and the property used for its main recreational purpose at Lake Metigoshe. Primarily the property has been used in the summer months, but there was a period of time that the Plaintiffs also used it in the winter, for such activities as ice fishing and snowmobiling, as well as use during a family wedding in the winter. In addition to ordinary lawn care and removing trees and brush, there was also gravel put down on the property, both to provide a stable base for the trailer houses, as well as to maintain the road into the property and parking for vehicles. The Plaintiffs have used the property for storing large items, such as campers, lake toys and boats, and have put two storage sheds on the property, one in 1972 and one in 2005. The 1972 storage shed sits in part on the Issendorf triangle as well as on part of the platted roadway.

There was a well drilled into the property, and a fence erected by the well. There has also been a firewood shelf on the property, with cement being poured under the shelving unit. The Plaintiffs and their families have used the subject property, including portions of the platted roadway, the Tonneson triangle, and the Issendorf triangle as if it were their own property, since the early 1960’s to the present. It is true that a portion of the Issendorf triangle is still in its wooded condition, and has not been cleared by the Plaintiffs or their families.

[¶8] In a December 2017 opinion, the district court quieted title to the property in Larson, Schelling, and Helgeson, finding the plaintiffs had acquired the disputed property by adverse possession under N.D.C.C. § 28-01-11. On March 2, 2018, the court entered its findings of fact, conclusions of law, and order for judgment, and judgment was entered. On March 12, 2018, defendants filed an objection to costs and disbursements. After further proceedings, the court entered an order regarding costs on April 27, 2018, and ordered a corrected judgment be entered.

[¶9] On May 3, 2018, Tonneson and Issendorf filed their notice of appeal in this Court, appealing from the March 2018 judgment. On May 4, 2018, one day after the notice of appeal was filed, the district court entered purported "corrected findings of fact, conclusions of law, and order for judgment" and a "corrected judgment."

II

[¶10] In an appeal from a bench trial, the district court’s findings of fact are reviewed under the clearly erroneous standard of review, and its conclusions of law are fully reviewable. Sauter v. Miller , 2018 ND 57, ¶ 8, 907 N.W.2d 370 ; Moody v. Sundley , 2015 ND 204, ¶ 9, 868 N.W.2d 491. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all of the evidence, this Court is convinced a mistake has been made. Sauter , at ¶ 8 ; Moody , at ¶ 9. "In a bench trial, the district court is the determiner of credibility issues and we will not second-guess the district court on its credibility determinations." Sauter , at ¶ 8. "Findings of the trial court are presumptively correct." W. Energy Corp. v. Stauffer , 2019 ND 26, ¶ 5, 921 N.W.2d 431 (citing Brash v. Gulleson , 2013 ND 156, ¶ 10, 835 N.W.2d 798 ).

III

[¶11] Tonneson and Issendorf argue that the district court erred in finding the plaintiffs acquired title to the Tonneson triangle, the Issendorf triangle, and the platted roadway by adverse possession.

[¶12] Generally, N.D.C.C. § 28-01-07 provides a presumption against the adverse possession of real property "unless it appears that such premises have been held and possessed adversely to such legal title for twenty years before the commencement of such action." Section 28-01-10, N.D.C.C., states: "When there has been an actual continued occupation of premises under a claim of title exclusive of any other right, but not founded upon a written instrument or upon a judgment or decree, the premises actually occupied and no other must be deemed to have been held adversely." (Emphasis added.)

[¶13] In this case, the district court found the plaintiffs established adverse possession of the disputed property under N.D.C.C. § 28-01-11, which provides:

For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument nor upon a judgment or decree, land shall be deemed to have been possessed and occupied only in the following cases:

1. When it has been protected by a substantial enclosure; or

2. When it has been usually cultivated or improved.

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