James A. Compart, et al., Appellants,

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0705

James A. Compart, et al.,
Appellants,

vs.

Justin J. Wolfstellar, et al.,
Respondents,

Bank of West,
Defendant.

Filed January 16, 2018
Reversed and remanded
Hooten, Judge

Sherburne County District Court
File No. 71-CV-16-513

Matthew C. Berger, Dean M. Zimmerli, Gislason & Hunter, LLP, New Ulm, Minnesota
(for appellants)

Jeffrey A. Scott, Brian W. Varland, Heley, Duncan & Melander, PLLP, Minneapolis,
Minnesota (for respondents)

Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Smith, T.,
Judge.
S Y L L A B U S
I. An adverse claimant’s acceptance of a conveyance of real property from the
record title holder, before the statutory period has run, only interrupts his adverse
possession if the adverse claimant acknowledges the grantor’s superior title in the
conveyed interest.
2
II. A purchaser who obtains title at a mortgage foreclosure sale takes title subject
to a prior adverse possession unless, within the applicable statutory period, either the
adverse claimant abandons its possession or one with a superior right to possess the real
property ejects the adverse claimant.
O P I N I O N
HOOTEN, Judge
Appellants contend that the district court erred by granting summary judgment in
favor of res pondents on appellants’ adverse possession claim and on res pondents’ quiet
title counterclaim. Appellants argue that their possession of the disputed real property was
hostile for the required 15 years, and that their interest is superior to respondents’ interest.
We reverse and remand.
FACTS
This case focuses on real property in Sherburne County, Minnesota , which is
divided into four parcels: A, B, C, and D.

3
Parcels A and B are each square -shaped and approximately 5 acres, with Parcel A
immediately north of Parcel B. Parcel C is approximately 12 acres and is immediately east
of Parcels A and B, with the same northern boundary as Parcel A and the sam e southern
boundary as Parcel B . Parcel D is the disputed parcel. It is a n approximately 3-acre L-
shaped parcel running along the west ern boundary of P arcels A and B and along the
southern boundary of Parcels B and C. Parcels A and B are separate tax parcels, but Parcels
C and D together form one tax parcel.
Appellants James Compart and Diana Compart own Parcels A and B, and
respondents Justin Wolfsteller1 and Janeen Wolfsteller own Parcel C.2 Both the Comparts
and the Wolfstellers claim an ownership interest in Parcel D.
For the purpose of this summary judgment appeal, the following facts are not
disputed. In 1992, Philip and Donna Larson acquired an interest in Parcels A, B, C, and D
by entering into a contract for deed for the purchase of the parcels with Berlinson
Associates, the title owners of the parcels . Five years later , the Comparts entered into a
purchase agreement to buy “13.03+/-acres” from the Larsons for $71,775. On September
15, 1997, the Larsons delivered a quitclaim deed, and Berlinson Assoc iates delivered a
warranty deed, to James Compart for Parcels A and B, which included the grant of “an

1 The case title incorporates the spelling of respondents’ last name , Wolfstellar, from the
district court’s order. See Minn. R. Civ. App. P. 143.01. But because he spelled his last
name as Wolfsteller in his deposition, we use his spelling throughout this opinion.

2 Respondent Alerus Financial, N.A., holds a mortgage on Parcels C and D, as does
Defendant Bank of West. Both Alerus and Bank of West played no role in the underlying
facts because the events at dispute occurred before either party had an interest in the
disputed land. And, Bank of West is not a party to this appeal.
4
easement for ingress and egress and utility purposes” over Parcel D. The Comparts argue
the deeds were in error because their purchase from the Larsons also included Parcel D and
the deed s should have conveyed title to the Comparts for Parcel D , with an easement
granted in favor of the Larsons. Before September 15, 1997, the Comparts leased Parcels
A, B, and D for farming purposes, and they farmed these parcels since the 1997 purchase.
The Larsons fully paid their contract for deed for Parcels C and D, and Berlinson
Associates conveyed a warranty deed to the Larsons for those parcels on August 16, 2000.
In 2008, the Larsons granted a mortgage encumbering Parcels C and D. Then, on March
5, 2012, the Comparts granted the Larsons an easement over Parcel s B and D in a Road
Agreement and Easement. 3 The agreement, signed by the Comparts and the Larsons,
recognized the Comparts as owners of Parcel D, and the Larsons as owners of only Parcel
C. Nine days later, on March 14, the Larsons conveyed Parcel D by quitclaim deed to the
Comparts. The deed states it was “given to correct an error in the legal description set forth
in” the August 16, 2000 warranty deed.
The Wolfstellers claim ownership of Parcels C and D through a chain of title going
back to the Larsons’ 2008 mortgage. In 2012, that mortgage was foreclosed, Parcels C and
D were sold at a sheriff’s sale, and , after a conveyance between financial institutions, the
Wolfstellers purchased Parcels C and D from Wells Fargo.
The Comparts brought this lawsuit in 2016, alleging adverse possession of Parcel D
and two boundary-line claims. In their answer, the Wolfstellers filed a quiet title

3 There is a road traversing Parcels B and D that connects Parcel C to Highway 169.
5
counterclaim. The Wolfstellers moved for summary judgment on all claims, and the
district court granted the motion in favor of the Wolfstellers on all three of the Comparts’
claims, but set the Wolfstellers’ quiet title counterclaim for trial. Both parties filed motions
for reconsideration . The d istrict court denied the Comparts’ reconsideration motion,
granted the Wolfstellers’ reconsideration motion, declared that the Comparts “have no
right, title, or interest in Parcel D,” and granted summary judgment to the Wolfstellers on
their quiet title counterclaim. The Comparts appeal the summary judgment decisions on
their adverse possession claim and the Wolfstellers’ quiet title counterclaim.
ISSUES
I. Did the district court err in determining that the Comparts’ possession of
Parcel D was not hostile for the 15 -year statutory period and, on that basis,
granting summary judgment to the Wolfstellers on the Comparts’ adverse
possession claim?

II. Did the district court err in granting summary judgment to the Wolfstellers on
their quiet title counterclaim?

ANALYSIS
I. Adverse Possession
The Comparts contend that the district court erred in granting summary judgment
to the Wolfstellers because the ir possession of Parcel D was hostile for the required 15 -
year period. “On appeal from summary judgment, [appellate courts review] de novo
whether there are any genuine issues of material fact and whether the district court erred in
its application of the law to the facts.” Harmon v. Comm’r of Revenue, 894 N.W.2d 155,
159 (Minn. 2017) (quotation omitted). In doing so, appellate courts “view the evidence in
the light mos t favorable to the party against whom summary judgment was granted ,”
6
Lubbers v. Anderson , 539 N.W. 2d 398, 401 (Minn. 1995), and resolve all doubts and
factual inferences against the moving party, Rochester City Lines, Co. v. City of Rochester,
868 N.W.2d 655, 661 (Minn. 2015). But, “a ‘metaphysical doubt’ as to a factual issue will
not defeat a summary judgment motion.” DLH, Inc. v. Russ , 566 N.W.2d 60, 71 (Minn.
1997).
To succeed on an adverse possession claim, a plaintiff must prove , “by clear and
convincing evidence, an actual, open, hostile, continuous, and exclusive possession for the
requisite period of time which, under our statute, is 15 years.” Ehle v. Prosser, 293 Minn.
183, 189, 197 N.W.2d 458, 462 (1972); see also Minn. Stat. § 541.02 (2016) ( providing
that statutory period is 15 years). It is the adverse claimant’s burden “to come forward
with the essential facts establishing the elements of adverse possession. The evidence must
be strictly construed and amount to clear a nd positive proof before title by adverse
possession will be granted.” Stanard v. Urban, 453 N.W.2d 733, 735 (Minn. App. 1990)
(citation omitted), review denied (Minn. June 15, 1990) . There is also a statutory
requirement that, in certain instances, the adverse possessor must pay property taxes on the
disputed parcel for “ at least five consecutive years” during the period of adverse
possession. Minn. Stat. § 541.02.
The district court determined that the Comparts did not have hostile possession of
Parcel D for the required 15 years. It reasoned that because the Comparts had a permissive
easement from 1997 until March 2012, and held title via a quitclaim deed granted by the
Larsons from March 2012 until the July 26, 2012 mortgage foreclosure, any posse ssion
during that timeframe was not hostile and therefore did not count toward the period of
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adverse possession. For the purposes of this appeal, the Wolfstellers do not dispute that
the Comparts’ possession was actual, open, and ex clusive or that the Com parts were in
possession of Parcel D for the required 15 years. 4 But, the Wolfstellers argue that the
Comparts’ possession of Parcel D was not continuously hostile for the re quired 15 years
and that, as an alternative ground to defeat the their adverse possession claim, the Comparts
failed to pay property taxes as required by Minn. Stat. § 541.02.
Hostile possession “does not refer to personal animosity or physical overt acts
against the record owner of the property.” Ehle, 293 Minn. at 190, 197 N.W.2d at 462.
Rather, hostility only requires that one “enter and take possession of the lands as if they
were his own, and with the intention of holding for himself to the exclusion of all others.”
Thomas v. Mrkonich, 247 Minn. 481, 484, 78 N.W.2d 386, 388 (1956) (quotation omitted).

4 The Comparts argue that when the other four elements of an adverse possession claim are
met, hostility can be presumed and the burden shifts to the defendant to show that the use
was permissive. This argument is supported by caselaw on prescriptive easements, but has
not been sq uarely addressed in the adverse possession context. See Boldt v. Roth, 618
N.W.2d 393, 396 (Minn. 2000) (“A prescriptive easement claim involves the same
elements of proof as an adverse possession claim . . . . [and ] [w]here the claimant of an
easement by prescription has shown open, visible, continuous, and unmolested use for the
statutory period, inconsistent with the rights of the owner of the servient estate . . . the use
will be presumed to be under claim of right and adverse, so as to place on the owner of the
servient estate the burden of rebutting the presump tion by evidence that the use was
permissive.” (quotation omitted)). Because we have determined for purposes of reviewing
this summary judgement that the Wolfstellers have not identified any events that
interrupted the hostility period, we decline to deci de whether the presumption of h ostility
applies in the adverse possession context. Cf. Ebenhoh v. Hodgman, 642 N.W.2d 104, 110
n.2 (Minn. App. 2002) (analyzing Boldt and stating that supreme court “ has at least
implicitly suggested that this p resumption a pplies in adverse -possession cases, ” but
declining to address issue because appellants did not argue they were entitled to
presumption).
8
On appeal, the Wolfstellers do not defend the district court’s reasoning that the grant
of an easement interrupted the period of hostility. The Comparts’ use of Parcel D was
hostile because their use exceeded the express gran t of the easement, which was “for
ingress and egress and utility purposes over, under and across” Parcel D. “It is well settled
that the extent of an easement should not be enlarged by legal construction beyond the
objects originally contemplated or expre ssly agreed upon by the parties.” Minneapolis
Athletic Club v. Cohler, 287 Minn. 254, 258, 177 N.W.2d 786, 789 –90 (1970). Here, the
Comparts argue that they have farmed the property consistently since purchasing the
property in 1997. Because farming is a use other than entering and exiting property , and
is not a “utility purpose ,” the Comparts’ farming of Parcel D was hostile.5 See Ebenhoh,
642 N.W.2d at 111 –12 (holding that cultivating crops and grazing cattle was hostile
because it constituted entering “the disputed tract and [taking] possession as if the tract was
their own ”); cf. Nordin v. Kuno , 287 N.W.2d 923, 927 (Minn. 1980) ( noting that “ an
easement for ingress and egress . . . is not an easement for parking or picnicking ”).
Moreover, there is nothing in Ganje v. Schuler, 659 N.W.2d 261 (Minn. App. 2003), the
case relied upon by the district court, which suggests that an easement for ingress, egress,
and utility purposes makes the Comparts’ farming of the land a permissive use.
Instead, the Wolfstellers argue that the 2012 quitclaim deed, the 2008 mortgage, and
the 2012 foreclosure and sheriff’s sale interrupted the hostility period, and that ,

5 Because the Wolfstellers, for purposes of this appeal, do not challenge that the Comparts
were farming the land, we treat as fact that the Comparts farmed Parcel D openly and
exclusively and only decide the legal effect of that fact if it is established at trial.
9
alternatively, the Comparts failed to comply with a statutory requirement to pay c ertain
real estate taxes while in hostile possession of Parcel D.
A. 2012 Quitclaim Deed
The Wolfstellers argue that the Comparts’ acceptance of the March 2012 quitclaim
deed from the Larsons is an acknowledgment by the Comparts that the Larsons held
superior title, interrupting the hostility period and the continuity of their adverse
possession. See Olson v. Burk , 94 Minn. 456, 458, 103 N.W. 335, 336 (1905) (“ An
acknowledgment by the adverse claimant of the owner ’s title before the statute has run in
his favor breaks the continuity of his adverse possession . . . .”). The Comparts counter by
relying on Dozier v. Krmpotich, 227 Minn. 503, 509, 35 N.W.2d 696, 700 (1949) , which
states that “[t]he continuity of adverse possession is not broken by the adverse claimant’ s
taking a written conveyance of the interest claimed by him from parties claiming ownership
of the property or some interest therein.”
In evaluating the significance of the quitclaim deed, the key question is whether the
adverse claimant obtained title as a way “to get rid of the outstanding title and unite it to
the one un der which he has been holding,” or if instead he attempted a “purc hase of the
land from the owner. ” Id.; Olson, 94 Minn . at 458, 103 N.W. at 336. An attempt to
purchase the real property from the record owner acknowledges that superior title rests
with the record owner and interrupts adverse claimant’s continuous, hostile possession
because he is no longer holding the real property out as his own. See Olson, 94 Minn. at
458, 103 N.W . at 336 –37. But, an adverse claimant who takes “ a conveyance from the
owner of record does not defeat his claim by right of adverse possession. A disseizor may
10
strengthen his adverse claim by taking as many conveyances from those claiming or having
an interest in the land as he sees fit.” Skala v. Lindbeck, 171 Minn. 410, 413, 214 N.W.
271, 272 (1927); see also Dozier, 227 Minn. at 509, 35 N.W.2d at 700 (“[T]aking a written
conveyance . . . . admits, and admits only, that the occupant deems it worth while to get rid
of the outstanding title and unite it to the one under which he has been holding. It does not
prove, and alone it does not even tend to prove, a change in the character of the possession
or the recognition of a title paramount.” (quotation omitted)). Thus, if the adverse claimant
merely accepts a written conveyance, instead of purchasing or attempting to purchase the
land, accepting that conveyance is not an acknowledgement of superior title and the
adverse possession claim continues to run.
Based on these undisputed facts the Comparts did not purchase Parcel D as part of
the 2012 transaction , and their acceptance of the quitclaim deed was not an
acknowledgement that the Larsons held superior title.
The Larsons sent the Comparts an email relating to the 2012 quitclaim deed, which
shows the Larsons acknowledging that superior title rests with the Comparts, and does not
support the argument that the Comparts acknowledged the Larsons as superior title holders.
In the email, Donna Larson told the Comparts that the Larsons had “done some calculating
on the property taxes on the 2.98 acres that should be in your name since the sale (way
back in 1996!).” The Comparts paid the Larsons $754 as reimbursement of the prope rty
taxes, and t he Wolfstellers argue that this payment makes the conveyance a purchase
acknowledging superior title in the Larsons.
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But the fact that money changed hands is not dispositive in this case. First , under
Dozier, the payment of money to obtain a written conveyance is not dispositive of whether
the conveyance was a purchase. See 227 Minn. at 506, 35 N.W.2d at 698. In Dozier, the
defendant obtained, “for a consideration of one dollar and other considerations, . . . an
easement to use the driveway in question,” and the court concluded that the conveyance
did not break the defendant’s continuous, hostile use of the driveway. Id.
Second, the spreadsheet attached to the email shows that the $754 the Comparts
paid the Larsons was the parties’ estimate of the property tax on Parcel D that the Larsons
had been paying, and was paid to the Larsons as reimbursement for those tax payments.
Reimbursing the Larsons for the property tax paid on Parcel D recognizes that the
Comparts, as the party having superior title, owed those taxes, not the Larsons. And, based
on the Comparts’ original purchase price of $71,775 for 13 acres, approximately $5,500 an
acre, the Wolfstellers’ assertion that the $754 was the purchase price for 3 acres o f farm
land is insufficient to create a fact issue.
Third, the deed itself states that it is a corrective deed, which is also evidence that it
was not a purchase by the Comparts, but a recognition by the Larsons that the Comparts
held the rightful claim to Parcel D.6 Fourth, the Road Agreement and Easement —signed
by the Larsons and the Comparts only nine days before granting the quitclaim deed —

6 We reject the Comparts’ argument that this deed has any actual effect as a corrective deed
because this deed did not include the original grantor . However, the fact that the deed —
signed by both the Comparts and the Larsons —states that it is an attempt to correct an
earlier error is evide nce supporting the conclusion that the Comparts ’ acceptance of the
2012 quitclaim deed was not an acknowledgement of superior title in the Larsons.
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recites that the Comparts are the owners of Parcel D. These events in March 2012 show
the Larsons acknowledging the Comparts’ superior title, not the Comparts acknowledging
the Larsons’ superior title.
In response, the Wolfstellers point to James Compart’s affidavit, arguing:
James Compart testified in his Affidavit opposing summary
judgment about negotiations with the Larsons in early 2012 to
obtain a “Quit Claim Deed” “to settle the adverse interest
claim” over “the disputed Parcel D tract.” James Compart also
testified to h is agreement to pay the Larsons “for real estate
taxes paid on what was Parcel D dating back from when [the
Comparts] should have received ownership . . . .” James
Compart further testified to the veracity of email
communications from Donna Larson from th at timeframe in
which the Larsons stated: “ As soon as that agreement is
reached and money is ready to be paid, we’ll sign the papers
and this should be able to [be] completed!!”

The statement that the deed was to settle the adverse possession claim suppor ts the
Comparts’ argument that they were not purchasing Parcel D, but obtaining rec ord title to
property that they were possessing as their own and to which they had a rightful claim .
Additionally, James Compart’s claim that he “should have received ownership” in 1997 is
not an acknowledgement that the Larsons had superior title. Rather, the affidavit states,
“That your affiant in 2012 when agreeing to settle the matter with [the] Larsons, agreed to
reimburse them for real estate taxes paid on what was Parcel D dating back from when [the
Comparts] should have received ownership and took possession as an owner in 1996 to
1997.” (Emphasis added.) None of this evidence supports the conclusion that the
Comparts’ acceptance of the quitclaim deed acknowledges superior title in the Larsons.
13
Finally, the cases upon which the Wolfstellers rely are distinguishable. In Olson,
the adverse claimant entered into multiple contracts to purchase the contested real property
from the record owner. 94 Minn. at 458 –59, 103 N.W. at 336–38. The adverse claimant
in Cluss v. Hackett , 127 Minn. 397, 398, 149 N.W. 647, 648 (1914), “entered into
negotiations with the holder of the record title for the purchase of the property.” And, in
Stanard, the adverse claimant “testified that he instructed a realtor . . . to approach [the
record title holder] and see if he would sell the disputed property to [the adverse claimant].”
453 N.W.2d at 736. All of these cases relied on facts showing an attempt to purchase the
disputed property . H ere, the facts in the record show that the Comparts were not
purchasing or attempting to purchase Parcel D.
Moreover, if the Comparts had not accepted th e quitclaim deed, their adverse
possession claim would have continued to run and, assuming they prove the other elements
of adverse possession at trial, they would be entitled to fee title. We will not deem acts
undertaken to strengthen the Comparts’ adverse possession claim to have the effect of
abandoning it —at lea st not where the evidence shows that the y did not acknowledge
superior title in the Larsons.
We hold, based upon these undisputed facts and the caselaw , that the Comparts’
acceptance of the 2012 quitclaim deed was not an acknowledgement of superior title in the
Larsons and therefore did not interrupt the hostility or continuity of their adverse
possession claim.
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B. 2008 Mortgage, Foreclosure, and Sheriff’s Sale
The Comparts’ continuous, hostile possession of Parcel D, which predates the
mortgage granted by the Larsons in 2008, was not interrupted by the grant of the mortgage
or the mortgage foreclosure sale. The purchaser at the foreclosure sale and all subsequent
purchasers took title to Parcel D subject to the Comparts’ possession. “It is well settled by
the decisions in this state that actual possession and occupancy of land by a party, other
than the [seller] thereof, is notice sufficient to put a purchaser on inquiry as to the
particulars of the occupant’s claim of title.” Nellas v. Carline , 161 Minn. 157, 159, 201
N.W. 299, 300 (1924) . One who purchases or takes an encumbrance on land, while that
land “is in the actual possession” of one other than the se ller, “is bound to make inquiries
of the occupants, and to ascertain the nature and extent of their interests.” Morrison v.
March, 4 Minn. 422, 429 –30, 4 Gil. 325, 331 (1860) (quotation omitted). If there is a
dispute on this point, it is whether the Com parts’ had “actual possession and occupancy”
of Parcel D, and that is a question for the trier of fact. See Sage v. Morosick, 69 Minn. 167,
169–70, 71 N.W. 930, 931 (1897) (“The question whether there has been actual possession
for the purpose of establis hing title by adverse possession under the statute of limitations
is usually one of fact for the jury.”); see also Skala, 171 Minn. at 413, 214 N.W. at 272
(“The law prescribes no particular manner in which possession shall be maintained or made
manifest. It must be of such a character as to be unequivocal notice to the true owner that
someone is in possession in hostility to his title. Much depends on the nature and situation
of the land and the uses to which it is adapted.”); Murphy v. Doyle, 37 Minn. 113, 115, 33
N.W. 220, 221 (1887) (“[T]o constitute adverse possession there need not be a fence or a
15
building . . . it is sufficient if visible and notorious acts of ownership have been exercised
over the premises for the time limited by statute.”).
The Wolfstellers argue that because the Comparts acc epted a quitclaim deed from
the Larsons, they had an obligation to redeem their interest in Parcel D a t the mortgage
foreclosure sale, and that the Comparts’ failure to redeem the interest they obtained through
the quitclaim deed would extinguish not only that interest, but would also end the hostility
of their adverse possession claim. See Minn. Stat. § 580.23, subd. 1(a) (2016) (“When
lands have been sold in conformity with the preceding sections of this chap ter, the
mortgagor, the mortgagor’s personal representative or assigns, within six months after such
sale . . . may redeem such lands, as hereinafter provided, by paying the sum of money for
which the same were sold . . . .”); see also Minn. Stat. § 580.12 (2016) (“[U]pon expiration
of the time for redemption, the [sheriff’s certificate of sale] shall operate as a conveyance
to the purchaser or the purchaser’s assignee of all the right, title, and interest of the
mortgagor in and to the premises named there in at the date of such mortgage . . . .”) . We
disagree.
First, the Wolfstellers’ argument about the effect of a mor tgage sale without
redemption is irrelevant. The rule as stated in Dozier is that
[w]here land in the possession of an adverse claimant i s
purchased by another at a foreclosure sale of the mortgagor’s
estate, the sale does not interrupt the continuity of the adverse
possession of one not a party to the proceedings, and the
purchaser succeeding only to the estate of the mortgagor must
bring his action to recover the land within the period of the
adverse possession.

16
227 Minn. at 510, 35 N.W.2d at 700 (quotation omitted). The foreclosure sale did not
preclude the Comparts’ adverse possession claim because the Comparts were still in
possession of Parcel D. See id.; see also Minn. Stat. § 580.12 (“[T]he [sheriff’s certificate
of sale] shall operate as a conveyance to the purchaser or the purchaser’s assignee of all
the right, title, and interest of the mortgagor in and to the premises named therein at the
date of such mortgage . . . .” (emphasis added)). The Larsons, as mortgagors, were at risk
of losing title to Parcel D, unless either the Comparts abandoned their adverse possession
of Parcel D or the Larsons or their assigns ejected the Comparts. Unless one of those events
were to happen within the statutory period, the title obtained at the mortgage sale w as
subject to the same risk.
A mortgagor, before the expiration of the statutory period of adverse possession ,
holds the right to eject parties in possession. See Levine v. Twin City Red Barn No. 2, Inc.,
296 Minn. 260, 263, 207 N.W.2d 739, 741 (1973) (“Ejectment can be maintained only
against a person in possession by one having a present exclusive right to possession.”). If
the Comparts adversely possessed the property for 15 years, they acquired title to the
property and neither the mortgagor nor their successors in interest could eject the m. See
Ross v. Cale, 94 Minn. 513, 515, 103 N.W. 561, 561 (1905) (“[T]itle acquired by adverse
possession is a title in fee simple, and is a s perfect as a title by deed.”). As the Michigan
Supreme Court succinctly explained , a mortgagee cannot “assert a right against one in
possession of land holding adversely that could not be asserted by the mortgagor if the
mortgage had not been made.” Schafer v. Hauser, 111 Mich. 622, 625, 70 N.W. 136, 137
(1897); see also Dozier, 227 Minn. at 509–10, 35 N.W.2d at 700 (adopting that principle).
17
The mortgagor, after the Comparts perfected their adverse possession claim, could not
assert a superior right, and the same is true for the mortgagor’s assigns. Because no one
with the right to possess Parcel D acted to eject the Comparts before or after the mortgage
foreclosure sale, the 15-year period continued to run.
Second, even assuming the Wolfstellers are correct th at the mortgage foreclosure
sale had the power to extinguish the Comparts’ interest in Parcel D, there is no evidence in
the record that the Comparts received actual notice of the mortgage foreclosure sale. The
mortgage foreclosure sale statute requires t hat, “at least four weeks before the appointed
time of sale a copy of such notice shall be served in like manner as a summons in a civil
action in the district court upon the person in possession of the mortgaged premises, if the
same are actually occupied.” Minn. Stat. § 580.03 (2016). The record reflects that actual
notice was provided to the Larsons, but not to the Comparts. As the Minnes ota Supreme
Court has explained:
The purpose of requiring this notice [is] . . . . to prevent a wrong
which might result if no notice was required to be given to
persons not only in possession, but also in actual occupation.
“Actual occupancy” is defined as an open, visible occupancy,
as distinguished from the constructive possession which
follows the legal title. “Actual possession” has practically the
same meaning. It means possession in fact, effected by actual
entry upon the premises and actual occupancy. The word
“actual” is usually used in a statu te in opposition to “virtual”
or “constructive,” and calls for an open, visible occupancy.

Cutting v. Patterson , 82 Minn. 375, 380, 85 N.W. 172, 173 (1901). “Whether land is
‘actually occupied’ is primarily a question of fact.” Pipkorn v. Dunn , 408 N.W.2d 705,
707 (Minn. App. 1987), review denied (Minn. Sept. 30 , 1987). Under these facts the
18
Comparts occupied Parcel D by farming it, and therefore were required to be served with
actual notice of the foreclosure proceedings. See Cutting, 82 Minn. at 381, 85 N.W. at 173
(holding that where “[t]he mortgaged tract was inclosed with a substantial fence, and in the
growing season was under cultivation as a garden . . . . the mortgagor was in actual
occupation of the premises, within the meaning of the statute, and was entitled to notice of
the proceedings”).
Viewing the record in the light most favorable to the non -moving party, including
the lack of evidence that the Comparts received notice of the foreclosure or otherwise
participated in the foreclosure action, we conclude that the Wolfstellers have failed to show
that the mortgage foreclosure sale interrupted the Comparts’ continuous, hostile possession
of Parcel D.
C. Tax Payment
The Wolfstellers argue in the alternative that the Comparts failed to pay the required
real estate taxes on Parcel D for “at least five co nsecutive years” during the time that the
Comparts claim they adversely possessed Parcel D. See Minn. Stat. § 541.02. The statute
reads as follows:
No action for the recovery of real estate or the possession
thereof shall be maintained unless it appears that the plaintiff,
the plaintiff’s ancestor, predecessor, or grantor was seized or
possessed of the premises in question within 15 years before
the beginning of the action.

Such limitations shall not be a bar to an action for the recovery
of real estate assessed as tracts or parcels separate from other
real estate, unless it appears that the party claiming title by
adverse possession or the part y’s ancestor, predecessor, or
grantor, or all of them together, shall have paid taxes on the
19
real estate in question at least five consecutive years of the time
during which the party claims these lands to have been
occupied adversely.

Id. The Comparts argue that Parcel D is not “real estate assessed as tracts or parcels
separate from other real estate,” and thus it was not necessary for them to have paid the
real estate taxes in order to prev ail on their adverse possession claim . See id. It is
undisputed that Parcel D is not a separate parcel for tax purposes. Parcels A and B are
separate tax parcels, but Parcels C and D together form one tax parcel.
The supreme court’s interpretation of Minn. Stat. § 541.02 is inconsistent with the
Wolfstellers’ argument but consistent with the Comparts’ argument. In Ehle, there were
two separate tax parcels adjacent to each other, and the plaintiffs were attempting to acquire
title to 37 feet of the defendants’ parcel immediately adjacent to the plaintiffs’ parcel. 293
Minn. at 186 –89, 197 N.W.2d at 460 –62. The disputed portion was not separately
assessed, and the court h eld that the plaintiffs were exempt from the requirement to pay
taxes because the disputed land was not assessed separately for tax purposes. Id. The
Wolfstellers argue that this court expanded on Ehle in Grubb v. State , 433 N.W.2d 915,
920 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989), and that Grubb requires the
Comparts to meet the tax-payment requirement.
While the Wolfstellers are correct that Grubb goes further than Ehle, Grubb does
not support their position. In Grubb, the adverse claimant was attempting to obtain title to
“approximately 13 acres of his neighbor’ s 16 –acre parcel.” 433 N.W.2d at 919. We
concluded that “the legislature intended the tax -payment requirement to apply to actions
where the disseizor claims all or substantially all of an assessed tract or parcel” because
20
“if such were not the legislative intent, a disseizor could always avoid the tax -payment
requirement and consequent notice to the owner by claiming anything less than all of the
assessed tract or parcel.” Id. at 920 (emphasis added). We held that the adverse claimant
in Grubb was required to have met the tax-payment requirement because the disputed real
property made up “ approximately 80% of a separately assessed parcel .” Id. at 920–21.
Here, however, Parcel D is about 3 acres out of the approximate 15-acre separately assessed
tax parcel consisting of Parcels C and D , or around 20% of the tax parcel. There is no
reasonable argument that 20% is “substantially all” of the tax parcel at dispute in this case.
The Wolfstellers also rely on Bryant v. Gustafson , 230 Minn. 1, 40 N.W.2d 427
(1950), or—more specifically—on Grubb’s explanation of what Bryant held, to support
their position. Bryant involved a separately assessed road that was dedicated to the use of
the local lot owners. See id. at 4–5, 40 N.W.2d at 43 0–31. The Wolfstellers argue that
Bryant held that the tax -payment requirement applied even when only a portion of a
separately assessed parcel was being claimed under a theory of adverse possession. Grubb
states:
Nowhere did the court indicate that the portion of the roadway
the respondent disseizors claimed must also be separately
assessed. Rather, the entire roadway was separately assessed
for taxes, and the adverse claim to a portion of that roadway
was defeated because the disseizor had not paid such taxes, as
required under Minn. Stat. § 541.02.

Grubb, 433 N.W.2d at 921 (emphasis added). This language goes further than the actual
holding of Grubb, and goes further than Bryant.
21
First, Bryant relied on Skala, and Skala does not support the Wolfstellers’ argument.
See Bryant, 40 N.W.2d at 433 –34. This court in Wagner analyzed Skala and stated that
the land at issue in Skala “was 6.2 acres south of a fence purportedly separating two parcels
of land, but the district court found that only 4.7 acres of that land had been adversely
possessed.” Wagner v. McPhaill, No. A07-2265, 2008 WL 4909420, at *2–3 (Minn. App.
Nov. 18, 2008) (citing Skala, 171 Minn. at 411, 214 N.W.2d at 271), review denied (Minn.
Feb. 17, 2009) .7 Resolving the tax dispute, the Skala court stated that “[t]he fact that
defendant paid no taxes on the 4.7 acres is of no importance. There is no proof, and it is
not to be supposed, that this land was separately assessed.” Skala, 171 Minn. at 413 –14,
214 N.W. at 272. “Thus, in Skala, the disseizor’s failure to pay taxes on the portion of the
disputed land that was adversely possessed was ‘of no importance’ because that portion of
the disputed land had not been separately assessed.” Wagner, 2008 WL 4909420, at *3.
Second, the applicable syllabus point from Bryant states, “Where t he land in
question is separately assessed, the payment of taxes by a disseizor —or his predecessors
in adverse possession—for a period of five consecutive years during the period of adverse
occupancy is a prerequisite to the acquisition of title by adverse possession.” 230 Minn. at
2, 40 N.W.2d at 429. And while Bryant implies that the adverse claimant in that case was
required to pay the real estate taxes on the road, that implication is not controlling because
the court first held that the adverse claim ants had not satisfied the 15 -year requirement,

7 While Wagner is unpublished and not precedential, Minn. Stat. § 480A.08, subd. 3 (2016),
we adopt its reasoning here because we find it persuasive and it explains the erro r in the
Wolfstellers’ argument.
22
making it irrelevant whether they had paid taxes. Id., 230 Minn. at 10, 40 N.W.2d at 433–
34. Finally, it also appears from the relevant portion of the plat map, included in the Bryant
opinion, that the adverse claimant in Bryant was attempting to acquire title to
approximately greater than 50% of the separately assessed roadway, while here the
attempted acquisition is approximately 20% of the separately assessed parcel. See id., 230
Minn. at 4–5, 40 N.W.2d at 430–31. Thus, the Comparts were not required to pay the real
estate taxes on Parcel D and any lack of such payment does not bar their adverse possession
claim.8
II. Quiet Title
Because we hold that the district court erred in granting summary judgment against
the Comparts on their adverse possession claim, we also hold that the district court erred
in granting summary judgment in favor of the Wolfstellers on their quiet title counterclaim
because there are material disputes of fact over wheth er the Comparts obtained title to
Parcel D through adverse possession.
D E C I S I O N
Because we hold that the Comparts’ acceptance of the 2012 quitclaim deed was not
an acknowledgement of superior title in the Larsons , that neither the execution of the
mortgage nor the foreclosure sale interrupted the continuity or hostility of the Comparts’
adverse possession claim, and that the tax -payment requirement of Minn. Stat. § 541.02

8 The Comparts also argue that they met the tax-payment requirement by reimbursing the
Larsons for the taxes paid by the Larsons. Because we hold that the Comparts were not
required to meet this requirement, we do not address whether their payment to the Larsons
satisfies the requirement.
23
does not apply to the Comparts, we reverse the district court’s grant of summary judgment
in favor of the Wolfstellers on the Comparts’ adverse possession claim. Because there are
material disputes of fact over whether the Comparts obtained title to Parcel D by adverse
possession, we reverse the district court’s grant of summary judgment in favor of the
Wolfstellers on their quiet title counterclaim.
Reversed and remanded.