Moody v. Sundley

• Decision Date: 24 August 2015
• Docket Number: No. 20140408.,20140408.
• Citation: 868 N.W.2d 491
• Parties: Larry MOODY and Janice Moody, Plaintiffs and Appellees v. Dale SUNDLEY, Defendant and Appellant.
• Court: North Dakota Supreme Court

868 N.W.2d 491

Larry MOODY and Janice Moody, Plaintiffs and Appellees

v.Dale SUNDLEY, Defendant and Appellant.

No. 20140408.

Supreme Court of North Dakota.

Aug. 24, 2015.

Jordon J. Evert (argued) and Peter H. Furuseth (on brief), Williston, N.D., for plaintiffs and appellees.

Lisa M. Dynneson (argued) and Garth H. Sjue (appeared), Williston, N.D., for defendant and appellant.

Opinion

McEVERS, Justice.

[¶ 1] Dale Sundley appeals from a judgment quieting title to certain real property in favor of Larry and Janice Moody and dismissing Sundley's adverse possession counterclaim. Sundley argues the district court erred in finding he did not acquire ownership of the disputed property by adverse possession and failing to find the boundary of his property was established by acquiescence. We affirm.

I

[¶ 2] Sundley and the Moodys own adjacent real property in Burke County in the southeast quarter of the southwest quarter of section 23, township 159 north, range 94 west, north of a railroad right-of-way. The parties dispute the ownership of a portion of the east 540 feet of the southeast quarter of the southwest quarter of section 23, located west of a fence on land owned by the Moodys.

[¶ 3] In 1948, Nuell Herseth acquired by quit claim deed the southeast quarter of the southwest quarter of section 23, township 159 north, range 94 west, which includes the properties currently owned by Sundley and the Moodys. A building is located on Sundley's property that was previously used as a school and later as a township community center. It is not clear from the record how, but the Powers Lake Public School District acquired the property from Herseth. Evidence shows the School District conveyed the property to Battleview Township by warranty deed in 1974. The 1974 warranty deed described the property as, “A portion of of [sic] the SE1/4SW1/4 of Section 23, Township 159 North, Range 94 West, commonly called and known as the Battleview School and School Grounds[.]” The deed further provided, “this conveyance is made subject to the existing agreement between the School District and NUELL HERSETH, from whom the property was acquired.” In 1986, Nuell Herseth conveyed the property to Battleview Township by quit claim deed. The deed described the property as, “All that portion of the SE1/4SW1/4 of Section 23, Township 159 North, Range 94 West, lying north of the Burlington Northern Railroad's right-of-way ... except the east 540 feet thereof, according to the attached map. (1.5 acres more or less)”

[¶ 4] In 2001, Sundley acquired property by quit claim deed from Battleview Township. The deed described the property as, “All that portion of the SE1/4SW1/4 of Section 23, Township 159 North, Range 94 West, lying north of the Burlington Northern Railroad's right-of-way ... except the east 540 feet thereof, according to the attached map. (1.5 acres more or less)”

[¶ 5] In 1989, Herseth conveyed the east 540 feet of the southeast quarter of the southwest quarter of section 23 to Daniel Schroeder by quit claim deed. In 2005, the Estate of Daniel Schroeder conveyed the property by personal representative's deed of distribution to Eugene Schroeder, Daniel Schroeder's father. In 2006, Eugene Schroeder conveyed the property to the Moodys by warranty deed, which described the property as:

TOWNSHIP 159 NORTH, RANGE 94 WEST

SECTION 23: The East 540 feet of the SE1/4SW1/4 lying North of the

Burilington [sic] Northern Railway

[¶ 6] In June 2012, the Moodys sued Sundley, alleging Sundley was trespassing on their property. The Moodys claimed Sundley placed two modular homes, sheds, and a septic tank on their property and refused to remove the items. They requested the district court order Sundley to remove his property and to award damages. Sundley answered and counterclaimed for adverse possession, claiming his predecessors-in-interest adversely possessed the disputed property for more than twenty years and the disputed property was part of the property he purchased from Battleview Township.

[¶ 7] A bench trial was held, and the parties submitted post-trial briefs. Sundley argued a governmental entity can adversely possess real property in the same manner as a private party, the School District possessed the disputed property from 1951 until 1974 and acquired the property by adverse possession under N.D.C.C. 28–01–10 and 28–01–11, and the School District conveyed its interest in “the Battleview School and School Grounds” to Battleview Township by the 1974 recorded warranty deed. He alternatively argued Battleview Township acquired ownership of the disputed property under N.D.C.C. 28–01–08 and 28–01–09, the township had a deed for “the Battleview School and School Grounds,” the disputed property is part of the school grounds, the township possessed the disputed property from 1974 until 2001, and therefore the township acquired ownership of the disputed property. Sundley also argued the township acquired the property by adverse possession under N.D.C.C. 28–01–10 and 28–01–11, or the township acquired ownership of the property by adverse possession under N.D.C.C. 47–06–03.

[¶ 8] The district court quieted title to the disputed property in favor of the Moodys and dismissed Sundley's counterclaim. The court found the Moodys are the legal owners of the disputed property and Sundley failed to meet his burden of proving the elements of adverse possession.

II

[¶ 9] In an appeal from a bench trial, the trial court's findings of fact are reviewed under the clearly erroneous standard of review and its conclusions of law are fully reviewable. Savre v. Santoyo, 2015 ND 170, ¶ 8, 865 N.W.2d 419. 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. Id. “ ‘In a bench trial, the trial court is the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations.’ ” Id. (quoting Brash v. Gulleson, 2013 ND 156, ¶ 7, 835 N.W.2d 798 ).

III

[¶ 10] Sundley argues the district court erred by failing to conclude that he owns the disputed property through adverse possession.

[¶ 11] Whether there has been an adverse possession is a question of fact, which will not be reversed on appeal unless it is clearly erroneous. Gruebele v. Geringer, 2002 ND 38, ¶ 6, 640 N.W.2d 454. “To satisfy the elements for adverse possession, the acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant.” Id. at ¶ 7. All of the elements must be satisfied, and if any elements are not satisfied the possession will not confer title. Id. “The burden is on the person claiming property by adverse possession to prove the claim by clear and convincing evidence, and every reasonable intendment will be made in favor of the true owner.” Id. at ¶ 8.

[¶ 12] The district court found the Moodys are the legal owners of the disputed property and Sundley failed to establish that he or any of his predecessors-in-interest satisfied all of the elements of adverse possession:

It was clear from the testimony of the witnesses that, prior to the surveys, no one knew for sure who owned the disputed property. When Larry Moody was asked if he assumed he owned the property, he testified, “Not really.” He testified that Sundley never said anything about owning the property either. Janice Moody testified that Larry and Eugene [Schroeder] had an idea, but were not sure of the western boundary line of the Moody's property. Janice testified that they had the property surveyed, because they had their house for sale and wanted to be able to tell the next owner where the property line was. Janice also testified that after “all this came up,” she talked to Alan Erickson and Leanne Updahl, members of the Battleview Township Board at the time, and they told her the disputed property was part of the Moody's property. Sundley testified he was not aware of the property line when he bought the property, but thought the disputed property was part of the school grounds.

Sundley argued in closing that Nuell Herseth had no interest to convey when he executed Quit Claim Deeds to Battleview Township in 1986 and to Daniel Schroeder in 1989, because the property had already been conveyed to Battleview Township in 1974 by Warranty Deed from the Powers Lake Public School District. The Warranty Deed conveyed “a portion of of (sic) the SE1/4SW1/4 of Section 23 ... commonly called and known as the Battleview School and School Grounds.” ... There was no evidence presented about what portion of the property was “commonly called and known as the Battleview School and School Grounds.”

In addition, the 1974 Warranty Deed states, in part, “.... this conveyance is made subject to the existing agreement between the School District and HUELL [sic] HERSETH, from whom the property was acquired.” There was no evidence of the agreement that existed between the School District and Nuell Herseth or how such an agreement might have limited the conveyance.

At trial, the fencing, the mowing, and the playground equipment were testimonial areas of focus, presumably elicited to establish the actual, visible, continuous, notorious, distinct, hostile, and exclusive elements of adverse possession.

Eugene Schroeder testified that his son Daniel Schroeder constructed a fence in 1989 to enclose a pasture for his sheep and later cattle. It was agreed by several witnesses that the fence started at a post in the road at the entrance to the Moody's property and went north along the now-existing tree row on the Moody's property. Janice Moody testified that the fence was removed by Eugene Schroeder after the property was sold to the Moodys. Sundley testified the Moody's property line was roughly where the tree line is now.

Eugene testified that Daniel

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