Mark A. Wytaske, Appellant, vs. Robert W. Peterson, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-488

 

 

Mark A. Wytaske,

Appellant,

 

vs.

 

Robert W. Peterson,

Respondent.

 

 

Filed November 28, 2000 Affirmed Halbrooks, Judge

 

Mower County District Court

File No. C1-98-1574

 

 

Robert M. Maus, Baudler, Baudler, Maus & Blahnik, 108 North Main Street, Austin, MN  55912 (for appellant)

 

Fred W. Wellmann, Hoversten, Johnson, Beckmann, Wellmann & Hovey, LLP, 807 West Oakland Avenue, Austin, MN  55912 (for respondent)

 

 

 

            Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Mark A. Wytaske commenced the present action to establish adverse possession over a parcel of land that is owned by respondent Robert W. Peterson and located east of appellant's property.  The trial court ruled that Wytaske failed to satisfy by clear and convincing evidence all the elements for a claim of adverse possession.  On appeal, Wytaske argues that the trial court clearly erred in determining that he had failed to satisfy the elements of hostility, exclusivity, and continuity.  Because we find no error, we affirm.

FACTS

            In May 1956, L.R. and Wilda Tucker carved out a portion of their land for Tucker's sister and her husband, Wilma and Albert Nobbs.  The families shared water from a well located in the Tuckers' basement and propane gas from a tank placed east of the Nobbses' house.

            In December 1958, after her husband's death, Tucker decided to sell her property.  Prior to the sale, she expanded the Nobbses' portion by deed, creating Tract I:

Commencing 90 feet North of the Southwest corner of the Northwest Quarter of the Southwest Quarter, Section 15, Township 103 North, Range 18 West, Mower County, Minnesota, thence due East 200 feet, thence North 83 feet, thence West 200 feet, thence South 83 feet, to the point of beginning.

 

Tucker sold the remaining property (Tract II), which is described as:

The South Quarter of the North Half of the West Half of the Southwest Quarter of Section 15, Township 103 North, Range 18 West, excepting therefrom the following parcel of land: Commencing 90 feet North of the Southwest corner of the Northwest Quarter of the Southwest Quarter, Section 15, Township 103 North, Range 18 West, Mower County, Minnesota, thence due East 200 feet, thence North 83 feet, thence West 200 feet, thence South 83 feet, to the point of beginning.

 

A second liquid propane tank was installed for the new owners, while the Nobbses continued to use the original tank.  This new tank is located in an area designated as Tract III, which extends immediately east of Tract I and is described as:

Commencing 90 feet North of the Southwest corner of the Northwest Quarter of the Southwest Quarter, Section 15, Township 103 North, Range 18 West, Mower County, Minnesota, State of Minnesota, thence due East 200 feet to the point of beginning, thence due East 54 feet, thence North 83, thence West 54 feet, thence South 83 feet, to the point of beginning.

 

Tract III is within the paper title of Tract II.

            Appellant purchased Tract I directly from Wilma Nobbs on October 27, 1986.  Respondent is the successor-in-interest from the Tuckers, having purchased Tract II from Gary Moeykens on August 15, 1977.

            Since 1986, appellant and his family have used Tract III as their own land, including routine gardening, removing dilapidated structures, storing motor vehicles, and twice replacing the liquid propane tank.  In November 1997, respondent ordered a survey of the property after appellant's nephew upset him by burning diapers on Tract III.  It was then that respondent discovered that Tract III is within the paper title of Tract II.  Appellant offered to purchase Tract III, but the negotiations were unsuccessful.  In the fall of 1998, respondent barred appellant's access to Tract III by erecting a chain link fence.

            Appellant brought suit on December 18, 1998, making three claims:  an easement by prescription for a shared driveway, an easement by prescription for the shared well, and ownership of Tract III by adverse possession.  As part of his claim, appellant relied on the "tacking doctrine," so both parties introduced substantial evidence regarding the various relationships of previous title-holders.

            In addition to his own testimony, appellant introduced testimony from Blaine Nobbs, the son of Wilma and Albert Nobbs, regarding what his family believed were the boundaries of Tract II.  But Nobbs also testified that when he visited the property on May 2, 1999, most of the boundary markers his family erected had been destroyed or were missing.  Appellant did not introduce any other testimony establishing when these markers were removed or who removed them. 

            Respondent and his wife testified that Wilma Nobbs had asked permission to use Tract III to park cars for a funeral service.  Respondent also testified over appellant's objection that Wilma Nobbs stated that Tract III was part of respondent's property and that she did not want much land.  Although respondent acknowledged that he and his family did not mow or maintain Tract III, respondent testified that he had an arrangement with Albert Nobbs to clear snow from their shared driveway in exchange for the Nobbses' maintaining Tract III.

            Respondent testified that his immediate predecessor-in-interest, Moeykens, had told him that Tract III was a portion of Tract II.  Moeykens owned Tract II from 1972 until 1977 and had used Tract III to pasture horses.  Respondent also claimed that he had made some improvements on Tract III, including removing a fence and sign that Moeykens had erected, installing a security light, and burying power lines.

            The trial court found in favor of appellant on the issues of the easement by prescription for a shared driveway and the easement by prescription for a shared well.  But the trial court held that appellant had failed to prove by clear and convincing evidence that he adversely possessed Tract III.  Specifically, the trial court found that appellant had failed to show his use of Tract III was hostile or exclusive for the statutory period.

D E C I S I O N

            The issue of whether appellant introduced sufficient evidence to support his claim of adverse possession of Tract III involves review of the findings of fact made by the trial court.  This court will only reverse a trial court's findings of fact if those findings are clearly erroneous.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999).  Findings of fact are considered clearly erroneous only if they are not reasonably supported by the evidence.  Id.

            To establish title by adverse possession, appellant must "show, by clear and convincing evidence, an actual, open, hostile, continuous, and exclusive possession for * * * 15 years."  Ehle v. Prosser, 197 N.W.2d 458, 462 (Minn. 1972); see also Minn. Stat. § 541.02 (1998).  A trial court must strictly construe the evidence "without resort to any inference or presumption in favor of the disseizor, but with the indulgence of every presumption against him."  Phillips v. Blowers, 281 Minn. 267, 269-70, 161 N.W.2d 524, 527 (1968) (quotation omitted).  Here, the trial court found that "[a]ny use [appellant] or his predecessor in title may have made of said property was intermittent, non-exclusive, and with [respondent's] permission until 1997."  On this record, we conclude that the trial court could reasonably determine that appellant did not prove all the elements necessary for his claim.

            Appellant's own adverse possession has run, at most, for a period of 12 years.  Appellant took possession of Tract I in 1986 and began using and maintaining Tract III.  After the survey, respondent reasserted his rights to Tract III by erecting the chain link fence in the fall of 1998.  Further, appellant's offer to purchase Tract III in 1998 indicates "an acknowledgement of the owner's title" and ends his adverse possession.  Stanard v. Urban, 453 N.W.2d 733, 736 (Minn. App. 1990) (citation omitted).  Even if the use was minimal, appellant admits that respondent also used Tract III.

            Because appellant's adverse possession fails to meet the statutory minimum, he must be able to prove that he can "tack" together the respective periods that he and Wilma Nobbs adversely possessed Tract III in order to satisfy the statutory period.  Successors-in-interest can tack together their periods of adverse possession to satisfy the statutory time limit if these periods are consecutive.  Burns v. Plachecki, 301 Minn. 445, 449, 223 N.W.2d 133, 136 (1974) (all parties to be "tacked" together must have been using property adversely "to permit a proper tacking").

            But the record does not show that Wilma Nobbs adversely possessed Tract III.  Because "a close family relationship" existed between the original owners of Tracts I and II, we begin with an "inference, if not [a] presumption, that the original possession by [Wilma Nobbs] was permissive and not adverse."  Norgong v. Whitehead, 225 Minn. 379, 383, 31 N.W.2d 267, 269 (1948) (citations omitted).  There is ample evidence, including testimony by appellant's own witness, Blaine Nobbs, that the Tuckers permitted much of the Nobbses' activities on Tract III.  The inference of permissiveness established by the familial relationship ended once the Tuckers sold their property.  Boldt v. Roth, ___ N.W.2d ___, (Minn. Nov. 2, 2000).  And appellant failed to introduce any evidence on the relationship between the subsequent owners of Tract II and Wilma Nobbs on the use of Tract III.  Although this might be a difficult evidentiary burden for appellant, the trial court must strictly construe the evidence and find all permissible inferences against appellant.  Phillips, 281 Minn. at 269-70, 161 N.W.2d at 527.  Here, there is sufficient evidence in the record to support the district court's finding that Wilma Nobbs's use of Tract III was permissive.  For example, respondent and his wife testified that Wilma Nobbs continued to ask respondent for permission on occasion to continue to use the disputed parcel, and the Nobbses arranged for shared maintenance of Tract III in exchange for respondent maintaining the shared driveway. 

            Even if these elements could be satisfied, Wilma Nobbs's adverse possession of Tract III, if at all, would have begun on December 24, 1958, when the Tuckers sold Tract II and thus ended the familial relationship between the owners of Tract I and Tract II.  But the two periods of adverse possession are not consecutive.  Moeykens, respondent's immediate predecessor in title, let his horses run on Tract III sometime after he took possession of Tract II in December 1972.  Moeykens also placed a large archway and a sign along the border of Tract I and Tract III.  These acts suggest a reassertion of the true owner's rights, thereby creating a 14-year break between appellant's and the Nobbses' adverse possession.

            Affirmed.