Mark G. Warrington v. Donald E. Falk, Robert A. Schmaltz

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1639

Mark G. Warrington, et al.,
Respondents,

vs.

Donald E. Falk, et al.,
Appellants,

Robert A. Schmaltz, et al.,
Defendants.

Filed May 18, 2015
Affirmed
Smith, Judge

Goodhue County District Court
File No. 25-CV-12-2789

Clinton McLagan, Clinton McLagan Attorney at Law, PA, Eagan, Minnesota (for
respondents)

Gary A. Van Cleve, Connor T. McNellis, Larkin, Hoffman, Daly & Lindgren, Ltd.,
Bloomington, Minnesota (for appellants)

Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and

Smith, Judge.
 UNPUBLISHED OPINION

SMITH, Judge

We affirm the district court’s order denying appellants’ motion for new and

amended findings because the district court did not clearly err in finding that the

respondents satisfied the elements of adverse possession.

FACTS

In 1974, respondents Mark and Ann Warrington purchased a home at Wacouta

Beach. Appellants Donald and Nancy Falk live immediately west of the Warrington

property. This dispute focuses on a 60-foot-wide tract of land located to the north of the

Falk property, which is designated on the original plat as “Sand Beach.” The sand beach

and hillside area spans 133 feet to the north of the Falk property and abuts Lake Pepin.

Wacouta Beach was platted in 1920 and included areas dedicated to public use.

Although the disputed area was believed to be public land for many years, the sand beach

itself was not listed in the plat’s dedication clause, thus there was no statutory dedication

to the public. In 1929, the owners vacated a public right-of-way that ran east of the

disputed area before selling the land.

When the Warringtons moved into their home in 1974, the beach’s maintenance

was handled primarily by the neighboring residents, rather than the township in which it

was located, even though the beach was generally believed to be public. The

Warringtons began maintaining the disputed area and using it for recreation. The

Warringtons regularly stored equipment on the beach; and, in 1978, they built a moveable

dock and used it at the waterfront. In 1991, the township wrote Mark Warrington a letter

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instructing him not to exercise control or ownership rights over the sand beach because it

was public property.

In November 2012, the Warringtons sued, seeking a declaratory judgment that

they had adversely possessed the disputed area from 1974 to 1989. The Falks denied that

the Warringtons adversely possessed the disputed area and, in the alternative,

counterclaimed that they and the previous owner of their home had adversely possessed

the disputed area after the Warringtons.

At a district court trial, witnesses testified that, by 2001 when the Falks moved in,

the Warringtons had begun using the beach on a neighbor’s land and described the

disputed area as public. Mark Warrington, however, testified that he continued

maintaining and using the disputed area. In March 2013, the heirs of the original platters

conveyed title of the disputed area to the Falks. The district court ordered judgment for

the Warringtons. The Falks then moved for new and amended findings or a new trial,

and the district court denied the motion.

DECISION

I.

The Falks first argue that the district court made impermissible presumptions and

inferences in favor of the Warringtons when weighing the evidence. They cite Ganje v.

Schuler, 659 N.W.2d 261, 266 (Minn. App. 2003), to support their contention that

evidence of adverse possession must be strictly construed without the benefit of any

inferences or presumptions. This standard was first articulated in Vill. of Newport v.

Taylor, 225 Minn. 299, 303, 30 N.W.2d 588, 591 (1948). The year after Taylor, the

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supreme court limited Taylor’s holding to its facts, allowing the no-inference rule to be

applied “only where the evidence was controlling or where the claimant sought by means

thereof to supply a deficiency” in evidence demonstrating actual possession for the

statutory period. Alstad v. Boyer, 228 Minn. 307, 311, 37 N.W.2d 372, 375 (1949). We

apply the standard of clear and convincing evidence, as the district court did, because

there was testimony and evidence presented on the Warringtons’ actual possession of the

disputed area. See Rogers v. Moore, 603 N.W.2d 650, 657 (Minn. 1999).

II.

The Falks next argue that the district court erred by finding Mark Warrington’s

testimony credible and giving it undue weight. We defer to the credibility determinations

of the district court and do not reweigh the evidence. Alam v. Chowdhury, 764 N.W.2d

86, 89 (Minn. App. 2009); see also Rogers, 603 N.W.2d at 658. “Rather, we look to the

record for evidence that could reasonably support the findings of the district court.”

Rogers, 603 N.W.2d at 658. Accordingly, we defer to the district court regarding Mark

Warrington’s credibility and the weight given to his testimony.

III.

As a threshold matter, we must determine if the disputed area was public land

because an adverse-possession claim cannot be made for public land. See Minn Stat.

§ 541.01 (2014). The Falks argue that the district court erred by finding that the land’s

original platters vacated a public right-of-way in front of their lot before selling the land.

The district court stated that it “did not make any findings that the disputed land was in

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any way public land or contained a public roadway” because “there was insufficient

proof of public ownership.”

The Falks point to the testimony of a land surveyor that he believed the area “was

intended . . . to be dedicated as public” and that “[i]t, actually, is a public road” because it

was shaded in yellow on the plat. It is not clear whether the surveyor meant that the area

is a public road or was clarifying that it was intended as a public road. Later, however,

the surveyor conceded that there is nothing on the plat to indicate that the area in yellow

shading is public land, nor is there any such convention in surveying. He also testified

that the road to which the right-of-way connected was vacated before the land was sold.

If he did intend to testify that he believed the disputed area was currently a public right-

of-way, he did not explain how he arrived at such an opinion. In addition, while many

residents and former residents testified as to whether they believed at the time that the

disputed area was public, no other witnesses testified about use of the area as a right-of-

way or about a vacation. Wacouta Township was named as a defendant but made no

claim to the disputed area. Based on this record, the district court did not clearly err in

finding that there was insufficient evidence that the disputed area was public land.

In the alternative, the Falks argue that the disputed area became a public right-of-

way through common-law dedication. However, the Falks did not present argument on

common-law dedication to the district court. To the contrary, in their responsive posttrial

brief, the Falks said, “we will never know if the Township could have made a successful

public claim by common law dedication, prescription or some other theory.” Because we

do not consider issues not presented to and decided by the district court, we will not

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consider the Falks’ common-law dedication argument. See Thiele v. Stich, 425 N.W.2d

580, 582 (Minn. 1988).

IV.

Next, we must determine whether the district court’s findings of fact on each

element of adverse possession were supported by clear and convincing evidence.

Whether the elements of adverse possession have been established is a question of fact,

Ganje, 659 N.W.2d at 266, which we review for clear error, “view[ing] the evidence in

the light most favorable” to the district court’s ruling and reversing only if we are “left

with the definite and firm conviction that a mistake has been made,” Rasmussen v. Two

Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013). To succeed in their claim, the

Warringtons must show actual, open, hostile, continuous, and exclusive possession of the

disputed area for 15 years. See id.

Actual possession

The Falks argue that the district court’s finding that the Warringtons demonstrated

actual possession is clearly erroneous. “The law does not prescribe any particular manner

by which an adverse possessor must possess a disputed tract of property.” Ganje, 659

N.W.2d at 266. An adverse possessor may only claim the area that he occupies, not

adjoining land left in its natural state. Markusen v. Mortensen, 105 Minn. 10, 14, 116

N.W. 1021, 1023 (1908).

First, the Falks argue that there was no evidence that the Warringtons used the

hillside or the area of the land covered in vegetation in front of the hillside. The district

court found that the Warringtons actually possessed the entire disputed area because they

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used the land for “walking, boating, swimming, canoeing, and storing equipment, in

addition to time spent clearing and maintaining the beach.” While these activities did not

take place on the hillside or vegetation-covered area, actual possession only requires that

the adverse possessor use the land as an actual owner would, given the purposes to which

it is suited. See Skala v. Lindbeck 171 Minn. 410, 413, 214 N.W. 271, 272 (1927)

(stating that actual possession “depends on the nature and situation of the land and the

uses to which it is adapted”). The hillside and vegetation comprise only a small portion

of the disputed area that was not suited to any distinctive use. Even so, Mark Warrington

testified that he rip-rapped some of the disputed hillside and ran electrical cable in the

bank. Considering the nature of the land, the district court did not clearly err in finding

that the Warringtons actually possessed the entire disputed area.

Second, the Falks argue that the district court’s finding that the disputed area was

not appropriate for permanent structures or signage was clearly erroneous because a shed

and some signs were on the property. Because no particular method of possession is

required, building permanent structures or installing signs are possible, but not necessary,

methods of demonstrating actual possession. See Costello v. Edson, 44 Minn. 135, 138-

39, 46 N.W. 299, 301 (1890). The record indicates that the Warringtons used the

disputed area primarily for recreation and did not require permanent structures or signs

for that purpose. Their recreational use of the disputed area was consistent with the

manner other neighbors used similar, nearby land. Therefore, any error by the district

court was harmless because the element of actual possession was satisfied by Mark

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Warrington’s testimony that his family used the disputed area for recreational purposes

and equipment storage. See Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

Open Possession

The Falks argue that the district court’s finding that the Warringtons demonstrated

open possession was erroneous. To satisfy the open-possession requirement, the adverse

possessor must demonstrate possession that is “visible from the surroundings, or visible

to one seeking to exercise his rights,” throughout the statutory period. Hickerson v.

Bender, 500 N.W.2d 169, 171 (Minn. App. 1993).

The record supports the district court’s findings. Had the true owners of the land

visited the disputed area, they would have found a beach that was well maintained and

showed signs of use. Mark Warrington testified that he and his wife began using and

maintaining the beach immediately upon moving into their home in 1974. He testified

that, during the adverse-possession period, they cleared and maintained the beach, built

fires to burn debris, stored a tractor and moveable dock on the beach, cut trees, and

generally used the beach for recreation. The Warringtons also stored boats on the beach

and occasionally boat lifts. Although the tractor and the dock are items that could be

moved, they are not objects that one would bring for a temporary visit to the beach;

therefore, the true owner would be on notice of the Warrington’s possession by their

presence. In addition, Mark Warrington testified that, when he saw people he did not

know on the disputed area, he asked them to leave. Based on Mark Warrington’s

testimony, the district court’s finding of open possession was not clearly erroneous.

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Continuous Possession

The Falks argue that the district court’s finding that the Warringtons demonstrated

continuous possession was erroneous because the Warringtons used the disputed area

only sporadically until placing the dock on the beach in 1978. Occasional and sporadic

uses, such as stepping onto a neighbor’s lawn while mowing, do not satisfy the continuity

requirement. Stanard v. Urban, 453 N.W.2d 733, 735-36 (Minn. App. 1990), review

denied (Minn. June 15, 1990). The Falks argue that Stanard is controlling because we

held that mowing and maintaining disputed property during summer, storing equipment

during winter, and allowing kids to play on the land were occasional and sporadic uses.

Id. Applying the standard of clear and convincing evidence, the record supports the

district court’s finding that the Warringtons continuously used at least some part of the

disputed area from 1974 to 1989.

While the facts of this case are very similar to Stanard because both cases involve

a claim of adverse possession based on maintenance, recreational use, and equipment

storage on a disputed area, the alleged uses in this case are more extensive. Mark

Warrington testified that he and his wife started using and maintaining the beach in 1974

and continued to do so during the entire statutory period. Rather than just regularly

mowing the disputed area, Mark Warrington testified that maintenance of the beach area

was an extensive task that required building fires to dispose of debris and sometimes

plowing the beach under. Furthermore, rather than storing equipment only during the

winter, the Warringtons’ equipment was on the disputed area year-round. Mark

Warrington testified that anyone could see that they were regularly using the disputed

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area because boats were stored on the beach starting in 1974, the dock was added in

1978, and boat lifts were sometimes present as well. Mark Warrington also testified that,

instead of occasionally allowing children to play in the disputed area, his children used

the disputed area “every night [in the summer] and in the spring.” Therefore, the district

court did not clearly err by finding that the Warringtons continuously possessed the

disputed area.

Exclusive Possession

The Falks argue that the district court’s finding that the Warringtons demonstrated

exclusive possession was erroneous because neighbors and the public also used the

disputed area. Exclusivity requires “possession of the land as if it were [the adverse

possessor’s] own with the intention of using it to the exclusion of others.” Wheeler v.

Newman, 394 N.W.2d 620, 623 (Minn. App. 1986) (citing Thomas v. Mrkonich, 247

Minn. 481, 484, 78 N.W.2d 386, 388 (1956)). Adverse possessors may permit third

parties to enter the land, but must exclude anyone who enters under claim of title. See

Ebenhoh v. Hodgman, 642 N.W.2d 104, 109 (Minn. App. 2002).

The record demonstrates that the Warringtons and their neighbors all used various

areas of the beach, sometimes in the disputed area and sometimes not. Mark Warrington

testified that he did not object to people he knew using the beachfront in the disputed

area, and that it was a common practice between the neighbors to permit each other

access to the beach. The Falks emphasize that the disputed area was shared between the

previous owners of their home and the Warringtons. However, both the previous owner

and Mark Warrington testified that the neighbors generally kept to one side of the dock

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while the Warringtons kept to the other. The previous owner also testified that he never

claimed title to the disputed area. Therefore, the district court’s finding of exclusivity

was not clearly erroneous based on the occasional presence of neighbors in the disputed

area who were not claiming title.

There also was testimony about public use of the area. Mark Warrington testified

that he would ask people he didn’t know to leave, and at least one former neighbor

corroborated this testimony. Another former neighbor testified that windsurfers and

boaters would park in her driveway and use the beach. But she did not provide clear

testimony on whether the windsurfers accessed the water by crossing the disputed area or

by another route. Therefore, the district court’s finding of exclusivity was not clearly

erroneous based on testimony about members of the public using the lake.

Hostile Possession

The Falks argue that the district court’s finding that the Warringtons demonstrated

hostile possession was erroneous because the neighbors believed the disputed area was

public land and the Warringtons made no express claims of ownership.

‘[H]ostile’ possession does not refer to personal animosity or
physical overt acts against the record owner of the property
but to the intention of the disseizor to claim exclusive
ownership as against the world and to treat the property in
dispute in a manner generally associated with the ownership
of similar type property in the particular area involved.

Ehle v. Prosser, 293 Minn. 183, 190, 197 N.W.2d 458, 462 (1972). In Ehle, occasional,

minimal uses of the property by record owners did not defeat an adverse possession claim

when there was no evidence that those uses were made under claim of ownership. Id.,

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197 N.W.2d at 462-63. The Ehle court also distinguished permissive use of disputed

property from uses made “under circumstances from which [the record owner’s]

knowledge and acquiescence may be inferred,” allowing the presumption of hostility. Id.

at 190-91, 197 N.W.2d at 463 (defining “acquiescence” as “passive conduct” including

failure to assert ownership).

The Falks argue that the Warringtons’ use of the disputed area was permissive

because the previous owner of their home or the township would have objected had the

Warringtons made an overt declaration of ownership. But the previous owner testified

that he knew the Warringtons treated the property differently than he did, but he never

objected. In addition, the previous owner testified that he was aware Mark Warrington

“had chased some people off,” and an attorney had even advised him that leaving docks

and boats on the beachfront would create the appearance of ownership to third parties,

which is exactly what the Warringtons did. The township similarly would have seen

signs of the Warringtons’ possession had a representative visited the beach. The

township letter dated July 5, 1991, demonstrated awareness that the Warringtons were

performing maintenance on the property and preventing public access, but the township

did not object until after the statutory period had passed. Therefore, the district court did

not clearly err in finding that the neighbors and the township acquiesced in the

Warringtons’ possession of the disputed area.

The Falks also argue that adverse possession is defeated if the adverse possessor

recognizes the record owner’s title and that the Warringtons recognized they did not own

the land when they stated it was public land. However, caselaw applies this rule in

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situations in which the adverse possessor offered to purchase or lease the disputed area or

agreed to the record owner’s request to vacate the land during the adverse possession

period, not when the adverse possessor makes mere statements about who owns the

property. See, e.g., Mitchell v. Green, 125 Minn. 24, 28, 145 N.W. 404, 405 (1914)

(contract for sale of disputed land); Cluss v. Hackett, 127 Minn. 397, 398, 149 N.W. 647,

648 (1914) (negotiations for sale of land); Stanard, 453 N.W.2d at 736 (offer to

purchase). The Warringtons never made an offer to purchase or lease the disputed area,

nor did they agree to vacate during the adverse-possession period. And, even if mere

statements were sufficient, there was insufficient evidence for the district court to

determine that any of the land was public, therefore it is not clear that the Warringtons’

statements recognized the correct record owner’s claim. Accordingly, the district court

did not clearly err in finding that the elements of adverse possession were met, despite the

Warringtons’ subsequent statements.

V.

The Falks next argue that the district court erred because it did not consider

evidence they presented of conduct after 1989.1 The supreme court has held that title by

1
The Falks also argue that the district court erred by excluding statements made by the
Warringtons that the disputed area was public and should be shared by the neighbors.
The statements were made during a meeting between the Warringtons, the Warringtons’
attorney, and the Falks. The district court held that the statements were irrelevant and
akin to settlement negotiations. See Minn. R. Evid. 408 (“Evidence of conduct or
statements made in compromise negotiations is . . . not admissible.”). Any error in
excluding the statements was also harmless because the statements were needlessly
duplicative. See Minn. R. Evid. 403. The district court admitted evidence that Mark
Warrington began treating the land as public after receiving a letter from the township in

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adverse possession accrues at the end of the statutory period and that such title can only

be divested by operation of law, such as through a sale or subsequent adverse possession

by another. Todd v. Weed, 84 Minn. 4, 6, 86 N.W. 756, 756-57 (1901). After an adverse

possessor acquires title, the adverse possessor’s actions or statements inconsistent with

ownership are not sufficient to defeat his claim. See id. at 6-7, 86 N.W. at 757 (“[I]f the

evidence on the subject of adverse possession be conclusive, title acquired thereby could

not be devested by subsequent verbal declarations and admissions.”). The Falks correctly

point out that, in Todd, the supreme court found subsequent conduct to be relevant and

probative of the adverse possessor’s state of mind. See id. at 6-7, 86 N.W. at 756-57.

But intent to take the land as one’s own is not currently a required element of adverse

possession, only intent to exclude others from the land. Compare id. at 6, 86 N.W. at 757

(holding that subsequent conduct is “proper evidence, as bearing upon and as tending to

characterize . . . purpose and intent”) with Ganje, 659 N.W.2d at 266 (“Intent to take the

land is not necessary; an individual can gain title by adverse possession even though the

disseizor does not intend to take land not belonging to him so long as he does intend to

exclude all others.” (quotation omitted)).

Finally, the Falks argue that the evidence was probative of their adverse-

possession counterclaim. The district court found that the Falks had not possessed the

disputed area for the statutory period because they purchased their property in 2001. But,

an adverse possessor may tack on a prior occupant’s possession, if they are in privity.

1991. In addition, Mark Warrington admitted that he called the disputed area a public
beach at various times.

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Ebenhoh, 642 N.W.2d at 109. The district court’s memorandum demonstrates that it did

consider the post-1989 statements in connection with the Falks’ adverse-possession

counterclaim. However, given the limited amount of evidence presented regarding any

adverse possession by the prior owners of the Falk home, we cannot say that the district

court clearly erred in finding that the Falks did not satisfy their burden of demonstrating

adverse possession for the statutory period.

Affirmed.

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