Ren Xu, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1741

Ren Xu, et al.,
Appellants,

vs.

Scott E. Sterling,
Respondent.

Filed July 22, 2019
Affirmed
Reilly, Judge
Dissenting, Johnson, Judge

Hennepin County District Court
File No. 27-CV-17-7742

William L. Davidson, João C.J. G. de Medeiros, Lind, Jensen, Sullivan & Peterson, P.A.,
Minneapolis, Minnesota; and

Robert B. Fine, Minneapolis, Minnesota (for appellants)

William M. Hart, Nicholas J. O’Connell, Julia J. Nierengarten, Meagher & Geer, P.L.L.P.,
Minneapolis, Minnesota; and

Wayne E. Gilbert, Lutter, Gilbert & Kvas, LLC, Eagan, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
After a court trial in this dispute between neighboring lakefront -property owners
over respondent’s construction of a dock, appellants argue that the district court erred in
concluding that they failed to establish the elements of trespass. We affirm.
FACTS
Respondent Scott Sterling and appellants Ren Xu and Baiqing Liu own neighboring
parcels of land in the City View Acres subdivision of the C ity of Plymouth. City View
Acres is located on the west side of the northern portion of Gleason Lake. The original
City View Acres plat was recorded in 1939, which is represented in the following diagram
introduced at trial:

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Appellants own part of Lot 1 and part of Lot B of the subdivision . Lot B is
underwater, with water levels rising and receding seasonally; the lot was originally
reserved to Hennepin County for lake flowage. Sterling owns Lot 3 of the subdivision.
According to the originally recorded plat, the southern edge of Sterling’s property abut s
the original shoreline of Gleason Lake.1
When Sterling purchased his property in 2015, it included a dock that had fallen into
disrepair. Shortly after closing on the purchase , Sterling constructed a new dock that
begins on his property, extends over the submerged Lot B through an area containing dense
reeds and other aquatic vegetation, and into the open -water area of Gleason Lake. When
Xu noticed the new dock in October 2015, he asked Sterling to remove the dock, claiming
it trespassed on Lot B. Sterling refused to remove the dock.
In April 2017, appellants served Sterling with a summon s and complaint, alleging
trespass and seeking damages and a permanent injunction directing Sterling to remove the
dock. Appellants also alleged that Sterling’s property did not abut the shoreline of Gleason
Lake. In his answer, Sterling denied that his dock trespassed onto appellants’ property ,
denied appellants’ allegation that his property does not abut the shoreline of Gleason Lake,
and pleaded an affirmative de fense of riparian rights on the ground that his property
extends to the original shoreline of Gleason Lake.
The matter was tried to the district court in June 2018. Four witnesses testified, and
the court admitted numerous exhibits. The exhibits included a survey of the originally

1 Lot 1 and Lot 3 are separated by Lot 2, which is not involved in this litigation.

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recorded plat of City View Acres and a 2002 survey of the boundaries of Lot 1 and Lot B,
which was revised in February 2018 to include the location of Sterling’s dock. The revised
survey of Lot 1 and Lot B indicates that Sterling’s dock begins on Lot 3 and extends into
Lot B. Neither party submitted for the court’s consideration a survey of Lot 3.
The district court found that the 2002 survey “establishes that [Sterling’s] dock
begins on [his] property and extends out over Lot B,” but “does not indicate the position
of the wetlands in relation to Lot 3” and “does not establish at what point the dock extends
into the water of the wetlands surrounding Lake Gleason.” Because the survey did not
establish the edge of the wetlands as to Lot 3, the district court relied on other evidence ,
specifically trial testimony , to determine whether Sterling’s property abuts the water of
Gleason Lake.
Based on the trial testimony, the district court found that the wetlands of Gleason
Lake exten d onto Lot 3. Although the district court noted that neither party presented
evidence “conclusively establishing the boundary of the wetlands and whether or not
[Sterling’s] property abuts the water,” it observed that both parties testified that Lot B is
underwater, and credited Sterling’s testimony that his dock begins in an area of water that
is approximately one foot deep. The district court then found, “The evidence tends to
demonstrate that both [ appellants] and [Sterling] are riparian owners.” To be clear, the
district court did not state that a ppellants failed to meet the burden of establishing that
Sterling is not a riparian owner; rather, it found that “[t]he evidence tends to demonstrate
that” Sterling was a riparian owner. The district court therefore concluded that appellants
“failed to me et their burden of proof establishing by the greater weight of the evidence”

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that Sterling made an unlawful entry onto their property , and, therefore, failed to prove
trespass. The district court directed judgment to be entered dismissing appellants’ claims,
and judgment was entered. This appeal follows.
D E C I S I O N
On appeal from judgment following a court trial, we review the district court’s
findings of fact for clear error and issues of law de novo. Porch v. Gen. Motors Acceptance
Corp., 642 N.W.2d 473, 477 (Minn. App. 2002), review denied (Minn. June 26, 2002).
And “we view the record in the light most favorable to the judgment of the district court.”
Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999). We “must disregard any error” that
is harmless. Minn. R. Civ. P. 61.
At the heart of this litigation is whether Sterling possesses riparian rights and,
therefore, is a riparian owner . “[O]ne may have rights to the use and enjoyment of the
water, rights exclusive of the general public, through ownership of lakeshore or lakebed.
These rights the law calls riparian. One does not own the water; one owns riparian rights
to the use and enjoyment of the water.” Pratt v. State, Dep’t of Nat. Res., 309 N.W.2d 767,
772 (Minn. 1981) (footnote omitted). “The riparian owner may, to facilitate access to the
water, build and maintain wharves, piers, landings, and docks on and in front of his land
and extend the same into the water, even beyond low -water mark, to the point of
navigability.” State ex rel. Head v. Slotness, 185 N.W.2d 530, 532 (Minn. 1971).
In the district court, the parties focused on whether Sterling is a riparian owner. On
appeal, appellants focus on civil procedure, specifically whether the assertion of riparian
rights is an affirmative defense and which party bears the burden of proof. Appellants did

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not raise this issue before the district court, and never asked the court to consider and rule
on it. Neither party challenges the district court’s evaluation of the evidence or its findings
of fact.
Appellants argue that the district court erred by assigning them the burden of
proving that Sterling is not a riparian owner. Specifically, appellants contend t hat
Sterling’s assertion of riparian rights is an affirmative defense to their trespass claim, and
that the burden to prove riparian rights lies with Sterling as the party asserting those rights.
In response, Sterling argues that the assertion of riparian rights is an “ordinary” defense to
a trespass claim, and that appellants failed to prove the elements of trespass. Determining
which party has the burden of proof is a question of law subject to de novo review.
Williams v. State, 910 N.W.2d 736, 740 (Mi nn. 2018) (citing Savig v. First Nat’l Bank of
Omaha, 781 N.W.2d 335, 338 (Minn. 2010)).
In general, the party asserting an affirmative defense has the burden of proving that
defense. BankCherokee v. Insignia Dev., LLC , 779 N.W.2d 896, 902 (Minn. App. 2010)
(citing MacRae v. Grp. Health Plan, Inc. , 753 N.W.2d 711, 716 (Minn. 2008)), review
denied (Minn. May 18, 2010). This case, however, does not require us to determine if the
assertion of riparian rights is an affirmative defense to a trespass claim, nor does it require
us to determine which party bears the burden of proving riparian rights. See Pfeil v. St.
Matthews Evangelical Lutheran Church, 877 N.W.2d 528, 535 (Minn. 2016) (declining to
characterize the ecclesiastical abstention doctrine as an affirmative defense or a form of
abstention because it was unnecessary to resolve the case).

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The supreme court recently stated that “a trespass is committed where a plaintiff has
the ‘right of possession’ to the land at issue and there is a ‘wrongful and unlawful entry
upon such possession by defendant.’” Johnson v. Paynesville Farmers Union Coop . Oil
Co., 817 N.W.2d 693, 701 (Minn. 2012) (quoting All Am. Foods, Inc. v. Cty of Aitkin, 266
N.W.2d 704, 705 (Minn. 1978)). In its order for judgment, the district court correctly stated
that riparian rights attach to property that abuts water that is subject to the protection and
control of the state, which includes wetlands. See In re Application of Christenson , 417
N.W.2d 607, 614 (Minn. 1987); Bloomquist v. Comm’r of Nat. Res., 704 N.W.2d 184, 187-
88 (Minn. App. 2005) . Although the district court observed that neither party presented
evidence “conclusively establishing the boundary of the [Gleason Lake] wetla nds and
whether or not [Sterling’s] property abuts the water,” the district court found that the
“evidence supports that the wetlands extend onto” Sterling’s property. Moreover, the
district court credited Sterling’s trial testimony that the area where hi s dock begins is
approximately one foot deep. Specifically, the district court found, “T he testimony as to
the wet conditions at the end of Defendant’s property on Lot 3 were generally consistent
and credible. The evidence supports that the wetlands extend onto Lot 3.” Thus, by finding
that the wetlands extend onto Sterling’s property and by crediting Sterling’s testimony that
the dock begins in an area that is approximately one foot deep, the district court implicitly
found that the area where Sterling’ s dock begins abuts the water of Gleason Lake, and is
therefore riparian land. See Christenson, 417 N.W.2d at 614.
Moreover, the district court expressly found that “[t]he evidence tends to
demonstrate that both [appellants] and [Sterling] are riparian ow ners,” and that “ both

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parties have nonexclusive rights to the use and enjoyment of the wetlands and waters of
Lake Gleason.” We interpret the “tends to demonstrate” language used by the district court
to be equivalent to a “fair preponderance of the evide nce,” which is the standard a party
must meet in order to satisfy its burden of proof in a civil action. See Carpenter v. Nelson,
101 N.W.2d 918, 921 (Minn. 1960). Thus, even if the burden was on Sterling to prove that
his dock begins on riparian land, the district court ’s finding that “[t]he evidence tends to
demonstrate” that he is a riparian owner indicates that he carried this burden. See id. (“It
is not required that the evidence be unequivocable or remove all reasonable doubt.”)
Appellants do not challenge this finding. For these reasons, we do not affirm the district
court’s judgment for reasons entirely different from the reasons stated by the district court.
Rather, it is precisely because of the district court’s reasoning—particularly, its finding
that “[t]he evidence tends to demonstrate” that Sterling is a riparian owner—that we affirm
the district court’s judgment.
We observe that it is not entirely clear whether the assertion of riparian rights is an
affirmative defense to a trespass claim. Minnesota Rule of Civil Procedure 8.03 does not
list riparian rights as one of the enumerated defenses that must be pleaded affirmatively.
Furthermore, neither party cites any precedentia l Minnesota case that has treated riparian
rights as an affirmative defense, and our research does not reveal such a case. Neither party
specifically asked the district court to determine which party bore the burden of proof
regarding riparian rights at trial. But we need not answer that question in this case because
the district court found that Sterling is a riparian owner. A riparian owner possesses rights
to use and enjoy the water that abuts his real property. Pratt, 309 N.W.2d at 772;

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Bloomquist, 704 N.W.2d at 187-88. This includes the right to build and maintain a dock
that begins in the riparian owner’s land and extends into the water to the point of
navigability. Slotness, 185 N.W.2d at 532. Thus, the district court’s finding that Sterling
is a riparian owne r means that he possessed the right to build a dock that began on his
property and extended into the water of Gleason Lake. Accordingly, Sterling’s status as a
riparian owner negates the “unlawful entry” element of tortious trespass. Johnson, 817
N.W.2d at 701. Therefore, any possible error made by the district court in assigning the
burden of proof was harmless. See Minn. R. Civ. P. 61 (requiring courts to disregard
harmless error).
In sum, the district court did not err by concluding that Sterling is a riparian owner,
and, therefore, did not err by concluding that Sterling’s dock did not trespass on appellants’
property.
Affirmed.

D-1

JOHNSON, Judge (dissenting)
The sole issue presented by this appeal is whether the district court erred by
assigning to the plaintiffs the burden of proof with respect to whether the defendant has a
common-law riparian right to place his dock on the plaintiffs’ property. I would resolve
the appeal by answering that question, and I would answer it by concluding that the district
court erred by placing th e burden on the plaintiffs. Therefore, I respectfully dissent from
the opinion of the court.
A.
The answer to the question on which the parties disagree is found in the supreme
court’s opinion in Danielson v. Kyllonen , 126 N.W. 404 (Minn. 1910) . In that case, the
plaintiff sued the defendant for trespass, alleging that he entered the plaintiff’s property
and removed a fence. Id. at 404. The defendant , in his answer, admitted entering the
plaintiff’s property, but “he justified his conduct upon the ground that the fence was within
the limits of a public highway and that he was acting as a public official.” Id. At trial, the
plaintiff introduced evidence that the fence was on his property. Id. The trial court
“dismissed the action upon the ground that no evidence had been introduced to sustain the
allegations of the complaint.” Id. On appeal, the supreme court reversed, stating that “the
burden was upon [the defendant] to prove what he alleged, and, having failed to do so, it
was error for the trial court to dismiss the action at the close of [the plaintiff’s] case.” Id.
Seventy years later, the supreme court again stated that the defendant in a trespass
claim bears the burden of proof with respect to whether he or she had a right to enter the
plaintiff’s property. In Murphy v. City of Minneapolis, 292 N.W.2d 751 (Minn. 1980), the

D-2

supreme court discussed “‘ the various privileges . . . which are recognized as defenses to
intentional torts’” and stated that, in claims of trespass, “‘such intentional invasions of the
interests of another are regarded as prima facie wrongful, and the privilege is a matter of
excuse or defense; while in negligence, . . . it is considered that no wrong at all has occurred
unless the defendant’s conduct has been unreasonable in the light of the risk, and the burden
is upon the plaintiff from the outset to establish the fact .’” Id. at 754 (emphasis added)
(quoting William L. Prosser, Handbook of the Law of Torts § 31, at 148 (4th ed. 1971)).
The Danielson and Murphy opinions are consistent with the Restatement of Torts,
which states that non -consensual privileges “must always be pleaded and proved by one
who seeks thereby to destroy the seemingly tortious character of his conduct, and so protect
himself from being subject to liability.” Restatement (Second) of Torts § 10 cmt. c (1965).
In addition, a well-respected Minnesota treatise states that “privilege in trespass . . . cases”
is an affirmative defense that must be pleaded in the answer pursuant to rule 8.03 of the
rules of civil procedure. 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 8:8,
at 278-79 (6th ed. 2017).
Furthermore, in this case, the defendant, Sterling, pleaded riparian right s as an
affirmative defense in his answer. Under the heading “Affirmative Defenses, ” Sterling
expressly pleaded five affirmative defenses in a detailed manner. As his third affirmative
defense, he alleged as follows:
3. Riparian Rights. Lot 3 extends to the “original
Lake Shore Line” of Gleason's Lake.

A. Defendant and his predecessors in interest h ave
constructed, maintained and replace[d] docks either onto Lot

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3, or extending from Lot 3 to waters lying beneath the shoreline
of Gleason’s Lake.

B. Defendant has riparian rights to use of the waters
of Gleason’s Lake by virtue of his ownership of th e original
shoreline of Gleason’s Lake. Such riparian rights include, but
are not limited to construction, maintenance or replacement of
a dock over the waters of Gleason’s Lake.

Sterling’s answer demonstrates that, when he served and filed his answer, he considered
his alleged riparian right s to be an affirmative defense , not a part of Xu and Liu’s prima
facie case.
On appeal, Sterling argues that he was mistaken when he pleaded his riparian rights
as an affirmative defense , and he asks this court to disregard his answer . He cites no
authority for the proposition that a party’s pleading may be disregarded in such a manner.
Sterling’s argument runs contrary to the well-established principle that parties a re bound
by their pleadings and that matters admitted in a pleading are deemed conclusive for
purposes of that particular case. See, e.g., Roberge v. Cambridge Coop. Creamery Co., 67
N.W.2d 400, 403 ( Minn. 1954); JEM Acres, LLC v. Bruno , 764 N.W.2d 77, 81 (Minn.
App. 2009). An opposing party obviously may be prejudiced if a party is allowed to change
its position after trial with respect to a factual issue that was established by the pleadings .
See Phelps v. Benson, 90 N.W.2d 533, 545-48 (Minn. 1958); see also LaSalle Cartage Co.
v. Johnson Bros. Wholesale Liquor Co. , 225 N.W.2d 233, 23 6-37 (Minn. 1974). In the
present circumstances, the plaintiffs would be justified in relying on the defendant’s answer
by, for example, electing to do less investigatio n and discovery or to introduce less
evidence on that particular issue.

D-4

Thus, based on both the caselaw and Sterling’s answer, I would conclude that
Sterling should have borne the burden of proof with respect to his alleged riparian rights
and that the district court erred by assigning that burden to Xu and Liu.
B.
In Sterling’s responsive brief, he argues only that the district court properly placed
the burden of proof with respect to his alleged riparian rights on Xu and Liu. He does not
argue in the alternative that, if the district court erred in its assignment of the burden of
proof, the error would be harmless. Yet that is the essence of the reasoning in the opinion
of the court. Xu and Liu did not have an opportunity to address the determinative issue in
their reply brief. Resolving an appeal on an issue that was not briefed by either party is
contrary to the basic nature of the adversary system, in which “we rely on the parties to
frame the issues for decision and assign to courts the ro le of neutral arbiter of matters the
parties present.” Greenlaw v. United States , 554 U.S. 237, 243 , 128 S. Ct. 2559, 2564
(2008).
Furthermore, even if Sterling had made a harmless -error argument, the opinion of
the court still would be in error by resting its decision on the district court’s findings of
fact. See supra at 7-8. The essence of Xu and Liu’s argument is that, because the district
court erred by assigning to them the burden of proof with respect to Sterling’s alleged
riparian rights , the erroneous burden of proof is baked into all of the findings of fact,
making them invalid and unreliable. This court should not avoid Xu and Liu’s argument
that the district court’s findings of fact are erroneous and then conclude that the burden of
proof is immaterial because the district court made findings of fact that are adverse to them.

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If the district court applied an erroneous burden of proof, it necessarily follows that all of
the district court’s findings of fact concerning Sterling’s alleged riparian rights are invalid
and unreliable. See Texas Commerce Bank v. Olson , 416 N.W.2d 456, 461 (Minn. App.
1987) (reversing and remanding for new trial because jury instructions assigned burden of
proof to wrong party).
Moreover, it is not at all clear that the district court would decide the case in
Sterling’s favor after assigning the burden of proof to him. Sterling’s evidence is
contradicted by Xu and Liu’s evidence. For example, Xu and Liu introduced evidence that
the average water level of Lake Gleason is 944 feet above sea level and that all of Lot 3 is
higher in elevation than 944 feet. The majority emphasizes the district court’s statements
that “[t]he evidence tends to demonstrate that both Plaintiff s and Defendant are riparian
owners” and that “both parties have nonexclusive rights to the use and enjoyment of the
wetlands and waters of Lake Gleason.” Supra at 7-8. But those statements are made near
the end of the district court’s conclusions of law, and they are sandwiched between
statements that “Plaintiffs have the burden of proof of establishing Defendant’s entry as
unlawful by the greater weight of the evidence” and that “Plaintiffs hav e therefore failed
to meet their burden of proof establishing by the greater weight of the evidence that
Defendant’s entry is unlawful.” In other words, those statements are made with an
incorrect understanding of which party bears the burden of proof. Near the beginning of
the findings of fact, the district court states, “Neither party offered evidence or testimony
clearly establishing the boundaries of Lake Gleason , and its surrounding wetlands , in
regards to the metes and bounds of Lot B and Lot 3.” That statement illustrates the

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importance of the burden of proof in this case. Sterling’s brief confirms it. He contends
that “Appellants had to show where the water falls in relation to a survey of Lot 3 to show
that Sterling had no legal right to access Lake Gleason,” that the only survey in the record
was of Lot 1 and Lot B, and that “[t]here was no evidence presented establishing that Lot
3 does not abut the shores of Lake Gleason, which is necessary to demonstrate a trespass
onto Lot B.” In short, Sterling’s argument depends on the lack of evidence introduced by
Xu and Liu. The only way to know how the district court would find the pertinent facts
based on the proper burden of proof is to reverse and remand so that the district court can
do so.
For these reasons, I would reverse the judgment of the district court and remand the
case to the district court for amended findings of fact and conclusions of law based on an
assignment to Sterling of the burden of proof with respect to his affirmative defense of
alleged riparian rights.