Thomas v. Mrkonich, 36759

• Decision Date: 15 June 1956
• Docket Number: No. 36759,36759
• Citation: 78 N.W.2d 386,247 Minn. 481
• Parties: Nick THOMAS et al., Appellants, v. Anna MRKONICH, Respondent,
• Court: Minnesota Supreme Court

Page 386

78 N.W.2d 386

247 Minn. 481

Nick THOMAS et al., Appellants, v. Anna MRKONICH, Respondent,

No. 36759.

Supreme Court of Minnesota.

June 15, 1956.

Syllabus by the Court

1. Evidence that original stairway between two two-story buildings was in open and constant use by defendant and her predecessors in title from 1909 to 1952 and during all such time encroached a maximum of 4 1/2 inches onto plaintiffs' adjoining property and that such encroachment was visible to any one using stairway or viewing it from rear of buildings Held sufficient to sustain trial court's finding that defendant had acquired title by adverse possession to space occupied by a second stairway constructed to replace original, which did not extend beyond the 4 1/2 inches of plaintiffs' property previously occupied.

2. To establish disseizen it is not necessary to show that disseizor entered claimed premises under color of title or that he believed or asserted right to enter. It is only necessary that he enter and take possession of them as if they were his own with intent to hold them for himself to the exclusion of all others. Evidence that defendant and her predecessors in title at all times between 1909 to 1952 had used to its full extent and as the owners thereof original stairway which encroached upon plaintiffs' property Held sufficient to sustain finding that she had acquired title to area on plaintiffs' property which it occupied by adverse possession.

3. That new stairway occupied small space approximately one inch in width which previously was open, between edge of 2 4 uprights and stairway wall and stringers which formed part of original stairway, which space was within the 4 1/2 inches of plaintiffs' property to which the uprights of the prior stairway extended, Held such minor variation of area occupied by prior stairway as not to require finding that defendant had not acquired adverse title thereto.

Cohen, Kaner & Dubow, Eveleth, for appellants.

Stone, Manthey & Carey, Virginia, for respondent.

THOMAS GALLAGHER, Justice.

Plaintiffs seek removal of that portion of a stairway constructed by defendant on her property described as Lot 16, Block 24, Re-Arrangement of First Addition to Eveleth, which encroaches a few inches over onto plaintiffs' property, north of and adjacent to Lot 16 above, described as Lot 15 of such block and addition. There are two-story structures fronting on Grant Avenue in Eveleth on both lots. The trial court ordered judgment in defendant's favor, holding she had acquired title to the disputed area by adverse possession. This is an appeal from the judgment.

In 1909 defendant's predecessor in title constructed an enclosed frame stairway which was attached to the north wall of the building on Lot 16 and which afforded access to the second floor thereof. The stairway for the most part was on Lot 16, but two upright 2 4's were attached to the south wall of the building on Lot 15 to which the stairway stringers and the north wall or enclosure of the stairway were attached. The 2 4's rested on a concrete foundation of plaintiffs' structure, the south edge of which was some 2 1/2 inches within plaintiffs' lot line, so that the north edges of the 2 4 uprights attached to plaintiffs' building were about 4 1/2 inches north of the south line of plaintiffs' lot. In 1909 plaintiffs placed a face board 8 inches wide and approximately 9 feet in length upright on the front of their building to cover the space between such building and the north wall of defendant's stairway. In 1910 they placed a metal flashing from the southerly wall of their building across to the roof of defendant's stairway, thus enclosing it from the top. The stairway remained in this condition thereafter until 1952.

In May of 1952 defendant removed the old stairway and replaced it with a modern concrete block stairway in substantially the same area previously occupied. During the course of this construction, plaintiffs protested that the new stairway was extending onto their property and subsequently instituted the present action requiring the removal of that portion thereof which extended over and within the south line of Lot 15. Defendant answered, claiming title to this area by adverse possession, and as indicated the trial court made findings in defendant's favor on this issue.

1. It would appear that there is ample evidence to sustain the trial court's finding that the defendant had acquired title to the disputed area by actual, open, continuous, hostile possession for a period of at least 15 years as required by M.S.A. § 541.02. Engquist v. Wirtjes, 243 Minn. 502, 68 N.W.2d 412; Fishman v. Nielsen, 237 Minn. 1, 53 N.W.2d 553. The evidence is undisputed that the stairway, as originally constructed in 1909 by defendant's predecessor, had been used constantly to gain access to the second floor of the building on Lot 16. The evidence further indicates that it occupied substantially all the area between the two buildings and actually was attached to plaintiffs'...