Lyle Batton, 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This opinion will be unpublished and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
A19-0289

Lyle Batton, et al.,
Appellants,

vs.

Terry Hawk, et al.,
Respondents.

Filed December 9, 2019
Affirmed in part and remanded
Hooten, Judge

Pennington County District Court
File No. 57-CV-17-229

Delray Sparby, Ihle Sparby & Haase P.A., Thief River Falls, Minnesota (for appellants)

Michael L. Jorgenson, Charlson & Jorgenson, P.A., Thief River Falls, Minnesota (for
respondent)

Considered and decided by Hooten, Presiding Judge; Worke, Judge; and Klaphake,
Judge.

U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this boundary dispute between neighbors, appellants argue that the district court
erred by denying their request for damages and determining that appellants failed to prove

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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adverse possession and the establishment of a boundary by practical location. We affirm
the district court’s conclusion that appellants had adversely possessed land which includes
the area immediately adjacent to, and including a portion of, their residence and its denial
of all of appellant s’ other claims of adverse possession, establishment of a boundary by
practical location, and damages. But, because the district court failed to provide a remedy
after finding that appellants adversely possessed a portion of land on respondents’ side of
the original boundary, we remand for further proceedings.
FACTS
Appellants Lyle Batton and Katherine Batton bought land in Thief River Falls on
July 20, 2000. At the time, they shared their southern boundary line with Daniel Bylander
and Kathy Bylander. During the time that the Battons and Bylanders were neighbors,
neither knew where the exact boundary line existed between their properties. The
Bylanders planted evergreen trees on what they believed was their property on the western
side of their northern boundary line. The Bylanders believed that their property line was
about eight to ten feet north of the line of evergreen trees and mowed that area accordingly.
The Battons believed that the tree line was the boundary line.
Also, during the time that the Bylanders were their neighbors, the Battons planted
various trees along what they believed was their southern boundary line in the eastern part
of the land, extending to the edge of Thief River. They began planting the trees in 2001 or
2002. A second tree line, made up of about 12 spruce trees, sat north of the Bylanders’
home on the west side of the adjoining properties and acted as a windbreaker for their
house. The Battons gave the Bylanders permission to plant more trees along the line.

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On October 25, 2013, respondents Terry and Dawn Hawk purchased the Bylanders’
property, becoming the Battons’ neighbors to the south. The next year, the Hawks wanted
to erect a fence along the northern line of their property. The Hawks spoke with the Battons
about the location of the property line, and the Battons explained that they believed it was
along the tree line.
Following their discussion, the Hawks hired Houston Engineering to do a survey of
the boundary line. The survey indicated that the Battons’ understanding of the boundary
line was incorrect, as the boundary line went through , or was very close to , the southeast
corner of the Battons’ house.
In August 2015, Lyle Bat ton and Terry Hawk met with a Houston Engineering
surveyor to discuss the survey results. At the meeting, Lyle Batton and Terry Hawk
discussed establishing a new boundary line with the surveyor’s help. The new boundary
line was shaped as a very shallow “v.” On the west end of the property, the new boundary
line ran 13.5 feet north of the original boundary line and wou ld become the Hawks’
property. The surveyor labeled this “Tract A.” Tract A included the wind -breaking tree
line that sat north of the Hawks’ home. On the east end of the properties, the new boundary
line was 25 feet south of the original boundary line and would become the Battons’
property. The surveyor labeled this “Tract B,” which included an area south of the Battons’
home. Tract A is .021 acres , and Tract B is .326 acres. The parties agreed that Tract A
would become the Hawks’ land and Tract B would become the Battons’ land. After the
meeting, surveyors from Houston Engineering placed markers along the new boundary
line.

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The Hawks began to build a fence near the mar kers placed by the surveyors. The
parties disagree about what happened next. According to the Hawks, they started to build
the fence about three feet south of the new boundary line, but after discussing the issue, the
Battons told them to build the fence directly on the new boundary line, and gave the Hawks
permission to enter their land to maintain the fence. According to the Battons, when Terry
Hawk was finishing the eastern part of the fence near the river, Lyle Batton realized that
the fence was over the new boundary line by a few inches ba sed on the marker’s location.
The Battons alleged that the markers placed by the surveyors were not in the correct spots
and that the fence built by the Hawks was “maybe a few inches up to many feet” north of
what the Battons believed was the new boundary line.
The parties also dispute what happened to four trees in the disputed area. The
Battons argue that the Hawks cut down four of their spruce trees on the western side o f
their property in order to build the fence. The Hawks maintained that during the summer
of 2015, when the Hawks were building the fence, several trees fe ll down due to a heavy
storm.
Following a hostile confrontation between Lyle Batton and Terry Ha wk in July
2016, the Battons brought suit against the Hawks and requested that the district court (1)
order the parties to exchange deeds to Tract A and Tract B , (2) determine the practical
boundary line of the property, and (3) rule that the Battons had a dversely possessed some
of the Hawks’ property. Their summons and complaint had a typographical error and,
instead of requesting that the district court determine they had adversely possessed Tract
B, they requested Tract A, which was already part of their property by deed.

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The Hawks answered the complaint, alleging that the parties had discussed
exchanging deeds to the tracts of land, but that they had never come to an agreement to
exchange the deeds. The Hawks counterclaimed that (1) the Battons had trespassed on
their land, (2) the Battons damaged their property by removing the survey markers, and (3)
the Hawks relied on the Battons’ promise to grant them an easement.
The district court held a bench trial over two days in August 2018. The issue with
the Battons’ complaint soon surfaced, as well as confusion over exactly what land the
Battons claimed they owned. When the Battons rested, they moved to amend the pleadings
to indicate that they adversely possessed Tract B, and the district court granted the motion.
They then moved to amend the complaint further to state that they adversely possessed the
land that extended from Tract B to the middle of the tree line. The district court never ruled
on this motion.
The following December, the district court issued its decision. It concluded that the
Battons failed to establish their claim for adverse possession of most of the disputed land:
The evidence established that they and their successors openly
and continuously possessed an undefined area of land
immediately surrounding their residence. But, the evidence
did not establish that they openly and continuously possessed
the rest of the la nd that they claim north of the tree line. . . .
[T]he Battons did not prove by clear and convincing evidence
that they possessed property north of the tree line for the
required 15-year period.

The district court then determined that the boundary line between the parties’ land is the
“original survey line.” It noted that, “While the [Battons] adversely possessed land that
includes a portion of their residence and land that is immediately adjacent to their

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residence, the court cannot determine a legal description for this land based on the evidence
introduced by the parties.”
The district court also ruled that the Battons failed to establish a claim for boundary
by practical location, even though the parties made an express agreement, because they
failed to acquiesce to the agreed line for a substantial period of time. After concluding that
the Battons’ claim to the entire disputed land failed, the district court stated that “i t is not
clear to the Court if [the four removed] trees are on land that belongs to the Battons.” And,
because the Battons did not meet their burden of demonstrating the value of the trees, the
district court ruled that the Battons were not entitled to damages.
This appeal follows.
D E C I S I O N
I. The district court did not err by determining that the Battons failed to prove
by clear and convincing evidence that they adversely possessed the entirety
of the disputed land.

The Battons argue that they proved adverse possession of all of the disputed land by
clear and convincing evidence. The primary land in dispute is Tract B.
Individuals claiming adverse possession must show, by clear and convincing
evidence, that their possession was actual, open, continuous, exclusive, and hostile for 15
years. Ehle v. Prosser, 197 N.W.2d 458, 462 (Minn. 1972). Whether a plaintiff establishes
the elements of adverse possession is a question of fact. Ganje v. Schuler , 659 N.W.2d
261, 266 (Minn. App. 2003) (citing Wortman v. Siedow, 216 N.W. 782, 783 (Minn. 1927)).
Evidence presented in support of adverse possession must be strictly construed, with every
presumption or inference to be taken against the party claiming adverse possession.

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Ebenhoh v. Hodgman , 642 N.W.2d 104, 108 (Minn. App. 2002). This court will not
reverse a district court’s findings of fact absent clear error. Minn. R. Civ. P. 52.01. Before
such a finding will be deemed clearly erroneous, this court “must be 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) (quotation omitted).
The district court found that the Battons had not established open, ho stile, and
continuous use of all of the land. “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. But it must give “unequivocal notice to the true owner that some one is in
possession in hostility to his title.” Skala v. Lindbeck, 214 N.W. 271, 272 (Minn. 1927).
There is sufficient e vidence when “visible and notorious acts of ownership have been
continuously exercised over the land for the time limited by the statute.” Young v. Grieb, 104 N.W. 131, 131 (Minn. 1905).
The Battons and the Hawks have different understandings of where the boundary
line fell. The Battons testified that they treated the tree line as the boundary, while the
Hawks, and the Bylanders before them, treated the boundary line as eight to ten feet north
of the tree line. Before the Hawks moved in, t he Bylanders mowed up to that line and,
when the Hawks moved in, the Bylanders instructed them to continue to mow up to that
line. While both parties testified that they used the land for other purposes, there is no
dispute that the Bylanders and the Hawks mowed part of the disputed land. For that reason
alone, we cannot conclude that the Battons gave the Hawks unequivocal not ice of their
hostile possession of all of the disputed land.

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The district court also found that the Battons’ use of the land was not continuous.
The Battons testified that they used the disputed land for fishing, playing Frisbee and soccer
with their kids, planting a garden and trees, and placing birdhouses and bird feeders . The
Battons testified that they treated the disputed land as their own because they planted a
garden, but could not remember how long it was there. Lyle Batton testified that he placed
birdhouses and bird feeders on the disputed land, but all had been removed for several years
by the time of trial. The district court found that these were occasional uses of the land and
were insufficient to meet the standards required to prove adverse possession. Because
evidence tending to support adverse possession must be strictly construed , the district
court’s finding that the Batt ons’ use of the land was simply occasional is not clearly
erroneous. The district court, therefore, did not err by determining that the Battons failed
to prove adverse possession over all of the disputed land by clear and convincing evidence.
II. The district court did not err by determining that the Battons failed to prove
a boundary by practical location.

The Battons argue that the district court erred by determining that they had not
proven a boundary line by practical location.
A party atte mpting to prove a boundary by practical location must do so by clear
and convincing evidence. Phillips v. Blowers, 161 N.W.2d 524, 526–27 (Minn. 1968). A
district court’s ruling on a practical location issue is a question of fact. Allred v. Reed, 362
N.W.2d 374, 376 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985). This court will
not disturb the district court’ s findings regarding practical location unless they are

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“manifestly and palpably contrary to the evidence.” Gifford v. Vore, 72 N.W.2d 625, 626
(Minn. 1955).
A boundary by practical location may be established in one of three ways: “(1) by
acquiescing in the boundary for a sufficient period of time to bar a right of entry under the
statute of limitations; (2) by expressly agreeing with the other party on the boundary and
then by acquiescing to that agreement; or (3) by estoppel.” Slindee v. Fritch Investments,
LLC, 760 N.W.2d 903, 907 (Minn. App. 2009). On appeal, the Battons argue that they
proved boundary by practical location based on acquiescence and express agreement.
A. Acquiescence
The Battons argue first that they established a boundary by practical location by
acquiescence. The district court did not expressly address whether they had established a
boundary by acquiescence. But the district court noted that there must be acquiescence to
a boundary line for the statutorily required 15 years in order to be established as a boundary
by practical location.
“If a party acquiesces in a boundary for a sufficient length of time to b ar a right of
entry under the statute of limitations, the district court may establish the boundary by
practical location.” Ruikkie v. Nall, 798 N.W.2d 806 , 819 (Minn. App. 2011) (quotation
omitted), review denied (Minn. July 19, 2011). Because the statu te of limitations is 15
years, “this ‘acquiescence’ basis is more demanding.” Id.
Because the Hawks have not lived in the home long enough to meet the 15 -year
requirement, we look to their predecessors—the Bylanders. As previously mentioned, the
Battons and Bylanders treated the boundary line differently. While the Bylanders believed

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the boundary was eight to ten feet north of the tree line, the Battons believed the boundary
was along the tree line. The disputed eight to ten feet shows that the parti es did not
acquiesce to a boundary line to “bar a right of entry.” See id. The Battons therefore have
failed to establish a boundary by acquiescence.
B. Express Agreement
The Battons argue second that they established a boundary by an express agreement.
The district court ruled that “[w]hile the parties entered into an express oral agreement for
the location of a new boundary line, the parties failed to acquiesce in it for the substantial
period of time required.”
Unlike practical location by acquiescence, to establish a boundary line by practical
location through express agreement, the Battons have the burden to prove that an express
agreement between the landowners set an “exact, precise line” between their parcel and the
Hawks’ parcel and that the agreement had been acquiesced to “for a considerable time.”
See id. (citing Beardsley v. Crane, 54 N.W. 740, 742 (Minn. 1893)). This period of time
has not been defined or limited by caselaw and “m ust necessarily depend upon the
particular circumstances of each case.” Beardsley, 54 N.W. at 742. “[A]cquiescence in
the agreed-upon boundary must be for a substantial period of time, although not necessarily
the full 15 years required under the acquies cence theory.” Ruikkie, 798 N.W.2d at 818;
see, e.g., Beardsley, 54 N.W. at 743 (nine years following survey and establishment of
fence); County of Houston v. Burns , 148 N.W. 115, 115 (Minn. 1914) (nearly ten years
following survey and establishment of fence).

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Here, the Battons and Hawks met with Houston Engineering in early August 2015
to discuss establishing a new boundary line. In July 2016, the Hawks were nearly finished
with constructing the fence when the disagreement about the boundary line began. At that
time, the parties had acquiesced to the boundary line for less than one year, which is not a
“considerable time” in light of the caselaw. Accordingly, t he district court did not err by
ruling that the Battons failed to establish boundary by practical location based on an
express agreement.
III. The district court did not err by denying the Battons’ request for damages.
The Battons argue that the district co urt should have awarded them damages for
four trees that the Hawks allegedly removed from their land.
Again, we review findings of fact for clear error. Rasmussen, 832 N.W.2d at 797.
“That is, we examine the record to see if there is reasonable evidenc e in the record to
support the court’s findings.” Id. (quotation omitted). If we are “left with the definite and
firm conviction that a mistake has been made,” a reversal is warranted. Id. (quotation
omitted).
The district court concluded that it could not determine if the four trees were on the
Battons’ land. Based on this inability, the district court did not award them treble damages
for trespassing and felling under Minn. Stat. § 561.04 (2018) . Lyle Batton testified that
the Hawks cut down four trees that were on the Battons’ land in order to erect their fence.
The Hawks testified that during the summer of 2015, a storm downed some trees and the
Hawks removed them from the property. Terry Hawk testified that he did not cut down
any trees north of the fence line. Because the district court sits in the best position to weigh

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the credibility of witnesses, Minn. R. Civ. P. 52.01, we are not left with the firm conviction
that, based on the conflicting testimony, the district court made a clear error. We affirm
the district court’s denial of the Battons’ request for damages.
IV. While the district court correctly determined that it was unable to provide
the parties with a legal description of the land adversely pos sessed by the
Battons, this matter must be remanded for the district court’s consideration
of an equitable remedy.

The Battons argue that the district court erred by failing to provide a legal
description of the land they had adversely possessed. While the district court held that the
Battons did not prove adverse possession of all the land that they claimed for the requisite
time period, it held that they had adversely possessed “an undefined area of land
immediately surrounding their residence.” But because “the court cannot determine a legal
description for this land based on the evidence introduced by the parties,” the district court
determined that the boundary line between the pr operties was the original surve y line,
which effectively awarded the land to the Hawks. This includes a corner of the Battons’
house.
District courts generally have broad discretion in fashioning remedies. Gabler v.
Fedoruk, 756 N.W.2d 725, 730 (Minn. App. 2008). “A court may fashion equitable
remedies based on the exi gencies and facts of each case so as to accomplish justice.”
Pooley v. Mankato Iron & Metal, Inc. , 513 N.W.2d 834, 837 (Minn. App. 1994), review
denied (Minn. May 17, 1994). Adverse possession is an equitable action. Gabler, 756
N.W.2d at 730. In Gabler, this court addressed whether “a district court is free to disregard
the basic remedy that has always been granted in Minnesota’s long and consistent

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jurisprudence.” Id. In that case, the district court found that the appellants had established
a boundary by practical location. Id. Instead of recognizing that boundary and transferring
titles, the district court granted the appellants an easement by prescription, providing them
“substantially less relief.” Id. On appeal, this court held that the distr ict court erred by
failing to apply the “uniform and plainly nondiscriminatory” remedy of establishing the
boundary and transferring titles. Id. at 731.
In other boundary dispute cases, appellate courts have also remanded and directed
the district court to establish a boundary. For example, in Ebenhoh, after concluding that
appellants had established adverse possession, we directed the district court to “enter
judgment in favor of appellants and to enter an order establishing the bou ndary between
the two parcels.” 642 N.W.2d at 112. In SSM Investments v. Siemers, the supreme court
reversed and remanded to the district court for “issuance of amended findings of fact,
conclusions of law, and order for judgment” consistent with supreme court’s finding t hat
appellants had established adverse possession. 291 N.W.2d 383, 386 (Minn. 1980).
After finding that the Battons had adversely possessed part of the disputed land in
Tract B, the district court should have considered providing Battons with a remedy. The
district court found that the Battons adversely possessed the area located at the corner of
their home and “an undefined area of land immediately surrounding their residence.”
While the district court is correct that the parties did not provide the d istrict court with
sufficient evidence of a legal description, the parties will not be able to obtain such legal
description until the district court has provided more guidance as to what constitutes the
“area immediately surrounding” the Battons’ residenc e. Accordingly, we remand this

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matter to the district court for its further consideration of a remedy. We leave it to the
discretion of the district court to determine if additional testimony and briefing by parties
is required in d efining the area surro unding the Battons’ residence, including, if it deems
appropriate, the issuance of an order t hat the parties conduct a new land survey reflecting
the land that has been adversely possessed by the Battons.
Affirmed in part and remanded.