This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1090
Paul M. Dobis, et al.,
Respondents,
vs.
David L. Scegura,
Trustee of the David L. Scegura Trust,
Appellant,
David Catlin,
Appellant,
Patricia Ann Catlin,
Appellant.
Filed January 30, 2017
Affirmed in part, reversed in part, and remanded.
Reilly, Judge
Stearns County District Court
File No. 73-CV-14-2476
Robert H. Wenner, Anthony E. Toepher, Reichert Wenner, P.A., St. Cloud, Minnesota (for
respondents)
Stuart T. Alger, Patrick B. Steinhoff, Malkerson Gunn Martin LLP, Minneapolis,
Minnesota (for appellants)
Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellants challenge the district court’s findings that respondents proved, by clear
and convincing evidence, that their predecessors-in-interest had actual, open, continuous,
exclusive, and hostile possession of the disputed area for at least the statutory 15-year
period to establish adverse possession. Because we determine that clear and convincing
evidence establishes that respondents adversely possessed the disputed area for the
statutory 15-year period, and because we are unable to determine the exact location of the
recognized boundary, we affirm in part, reverse in part, and remand to the district court
with instructions for additional findings.
FACTS
This boundary dispute can be traced back to Valentine Kociemba, the sole owner of
a parcel of land in Holding Township, Minnesota. In 1968, Valentine divided his land into
three parcels and conveyed one parcel to each of his three sons. He conveyed the 30 acres
in the northwest to his son Mark Kociemba, the 19.5 acres in the east to his son Steve
Kociemba, and the 20.5 acres in the southwest to his son Alois Kociemba.1 Mark’s parcel
was to the north of, and contiguous to, the parcel owned by Alois; and both Mark and Alois
owned land to the west of, and contiguous to, the parcel owned by Steve. This land was
bordered on the north by a public road, 390th Street, and was accessible by the northern
frontage road. A private driveway was later installed along the southern border. The north-
1
Because this case involves family members with the same last name of Kociemba, the
opinion will refer to each member by their first name.
2
south boundary between the parcels conveyed to Alois and Mark and the parcel conveyed
to Steve is the subject of this dispute.
Aerial photographs from 1968 to 2010 demonstrate that the north-south boundary
recognized by the brothers extended beyond the north-south survey boundary, which ran
from the northern access road to the eastern side of the southern private driveway. Survey
measurements revealed a 55-foot variation between the recognized boundary and survey
boundary on the northern end, and a 26-foot variation between the recognized boundary
and survey boundary on the southern end. The area between the survey boundary and
recognized boundary is the subject of this dispute. It contained a grass strip and measured
1,301.42 feet in length, 26 feet in width on the northern end, 54.28 feet in width on the
southern end, and approximately 52,650 square feet, or 1.2 acres.
After Valentine conveyed the property to his sons, they conveyed their parcels to
the parties involved in this dispute. Mark farmed his property from 1968 to 1991, when he
sold the parcel to James Scegura, who later transferred the parcel to his brother David
Scegura. This parcel is currently owned by the David L. Scegura Trust. In 1994, Alois
conveyed his 20.5-acre parcel to his daughter and son-in-law, Patricia and David Catlin.
The Catlins built a house on the southeast portion of the parcel, but reserved the remaining
acreage for agricultural production. Alois continued to farm the tillable portion of the
parcel until 1997, when the Catlins rented the agricultural portion to Paul Dobis. Paul
formed a partnership with his brother Leroy Dobis, and the partnership farmed the land
until 2005, when the Catlins refused to re-let the land to the partnership. Steve and his wife
Louise farmed their 19.5-acre parcel from 1968 to the late 1990s; the couple then leased
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the parcel to the Dobis partnership. When Steve died in 2010, Louise sold the parcel to
Paul and his wife Rebecca (respondents), who then leased the parcel to the Dobis
partnership.
In 2013, respondents initiated this action to quiet title to the disputed area, arguing
that they had actual, open, continuous, exclusive, and hostile possession of the disputed
area for at least the statutory 15-year period. Aerial photographs of the parcels introduced
at trial showed that the brothers and their successors-in-interest relied on an occupational
boundary line that differed from the survey line. The district court found that this
distinction was first observable in the 1965 aerial photograph. The testimony also
established that Steve and Louise farmed beyond the survey boundary and up to the
recognized boundary from 1968 to 2010, even though the couple did not consider the area
to be their property and did not have permission to do so. There was other testimony that
Mark and Steve recognized a separate boundary based on a fence north of 390th Street that
was “slightly to the west” of the recognized boundary introduced at trial. The Catlins also
testified that respondents “slowly crept closer” to the parcels owned by the Catlins and the
Scegura Trust, tilling westward from 2010 to 2013 until portions of the disputed area
“disappeared.”
After weighing this evidence, the district court judge discredited the testimony of
Mark and the Catlins. Relying instead on the aerial photographs, the district court
concluded that
[a]though the width of the grass strip may have changed over
the years, the aerial photographs submitted into evidence make
clear that the boundary line used from 1965 to 2010 ran from
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the access road to 390 at the north of the property to just east
of the driveway at the south of the property, after the driveway
was built.
The district court therefore concluded that (1) respondents proved by, clear and convincing
evidence, that Steve and Louise had actual, open, exclusive, continuous and hostile
possession of the disputed area from 1968 to 2010 and that (2) respondents acquired title
to the property by adverse possession.
This appeal follows.
DECISION
Whether a claimant establishes the elements of adverse possession is a question of
fact, Ganje v. Schuler, 659 N.W.2d 261, 266 (Minn. App. 2003), and this court will not set
aside factual findings unless the findings are “clearly erroneous,” Minn. R. Civ. P. 52.01.
When reviewing a district court’s factual findings, this court gives “due regard . . . to the
opportunity of the trial court to judge the credibility of the witnesses.” Minn. R. Civ. P.
52.01. But this court construes evidence presented in support of adverse possession
strictly, “without resort to any inference or presumption in favor of the disseizor, but with
the indulgence of every presumption against him.” Ebenhoh v. Hodgman, 642 N.W.2d
104, 108 (Minn. App. 2002) (quotation omitted). “[W]hether the findings of fact support
a district court’s conclusions of law and judgment is a question of law, which we review
de novo.” Ganje, 659 N.W.2d at 266 (quotation omitted).
In Minnesota, the elements of proof necessary to establish ownership by means of
adverse possession are well established. Rogers v. Moore, 603 N.W.2d 650, 657
(Minn. 1999). In Ehle v. Prosser, the Minnesota Supreme Court held:
5
In order to establish title by adverse possession, the disseizor
must show, 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. Subjective
intent to take land adversely is not essential in this state and
title by adverse possession may be obtained even though the
disseizor does not intend to take land not belonging to him so
long as he does intend to exclude all others.
293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972).
I. Actual Possession
The threshold issue here is whether respondents had actual possession of the
disputed area. The Catlins and David Scegura, as trustee of the David L. Scegura Trust,
(appellants) argue that because the district court’s factual findings in regards to the northern
and southern boundary markers are clearly erroneous, respondents failed to establish actual
possession of the disputed area by clear and convincing evidence. 2
While “actual” possession requires that an adverse possessor occupy the land and
apply it “to the uses for which it is fit,” Mellenthin v. Brantman, 211 Minn. 336, 341, 1
N.W.2d 141, 143 (1941), the law does not require an adverse possessor to obtain possession
of a disputed tract of property by any particular manner, Ganje, 659 N.W.2d at 266
(quotation omitted). Rather, “possession must give unequivocal notice to the true owner
that someone is in possession in hostility to his title.” Id. (quotation omitted).
2
Appellants also argue that the district court’s amended findings, excluding the driveway
owned by the Catlins from the southern landmark, render its findings clearly erroneous.
We disagree. After reviewing the record, it is apparent that the parties recognized a
boundary that differed from the survey boundary and that, as a result, Steve and Louise
acquired actual possession of the disputed area.
6
The district court considered aerial photographs from 1965 to 2010 and testimony
from the Catlins, Mark, Louise, and the land surveyor. After weighing the evidence
introduced at trial, the district court assigned more credibility to the testimony of Louise
and the surveyor, than Mark. Accordingly, the district court concluded that the evidence
presented at trial clearly shows that Steve and Louise occupied the land, openly tilled the
land, and planted corn, which gave notice to Steve’s siblings of his hostile possession.
Because the evidence presented supports this finding, the district court did not err.
Nevertheless, appellants argue that the district court’s factual findings are clearly
erroneous because (1) respondents failed to establish that they themselves actually
possessed the land and (2) Mark’s testimony supports an alternative finding—that the
recognized boundary lies slightly to the east of the fence north of 390th Street. But these
arguments are unpersuasive. The district court found, and the evidence clearly supports
the finding, that respondents’ predecessors-in-interest actually possessed the disputed area.
Because it is well-established that “continuous” possession is not required to maintain
adverse possession once the disseizor of the property has acquired title by adverse
possession, see Fredericksen v. Henke, 167 Minn. 356, 361, 209 N.W. 257, 259 (Minn.
1926), respondents subsequent possession has no impact on the district court’s findings.
Moreover, we give “due regard . . . to the opportunity of the trial court to judge the
credibility of the witnesses,” Minn. R. Civ. P. 52.01, and will not reverse on clear error
simply because evidence exists to support an alternative conclusion, see Vangsness v.
Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (“That the record might support
findings other than those made by the [district] court does not show that the court’s findings
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are defective.”). The evidence supports the district court’s finding that respondents’
predecessors-in-interest had actual possession of the disputed area from 1968 until they
sold the property to respondents in 2010. We therefore conclude that the district court’s
findings are not clearly erroneous.
II. Open possession
Appellants next argue that respondents did not have open possession of the disputed
area. “Open” possession requires that possession is “visible from the surroundings, or
visible to one seeking to exercise his rights.” Hickerson v. Bender, 500 N.W.2d 169, 171
(Minn. App. 1993). Appellants conceded below that “all parties have been ‘open’ with
their occupation of their parcels of property.” The district court therefore concluded that
“all parties agree that the possession of the dispute[d] parcel was open.” Generally,
“litigants are bound [on appeal] by the theory or theories, however erroneous or
improvident, upon which the action was actually tried below.” Annis v. Annis, 250 Minn.
256, 262-63, 84 N.W.2d 256, 261 (1957). Thus, this issue is not properly before the court.3
III. Exclusivity
Appellants next argue that respondents failed to establish exclusive possession of
the land over the 15-year period because respondents occupied the disputed area only by
“incrementally ‘creeping’ further westward each year” from 2010 to 2013. This argument
is also unpersuasive.
3
Even if this issue was properly before the court, appellants’ argument fails. After
reviewing the record, it is apparent that Steve and Louise had open possession of the land.
Steve overtly tilled the disputed area and planted crops; his possession was visible to those
seeking to enforce their rights.
8
To satisfy the exclusivity requirement of adverse possession, the disseizor must
possess the land “as if it were his own with the intention of using it to the exclusion of
others.” Ganje, 659 N.W.2d at 267 (quotation omitted).
The district court determined that respondents’ predecessors-in-interest satisfied the
exclusivity requirement; this finding is clearly supported by the evidence presented at trial.
The evidence establishes that Steve and Louise took possession of the disputed area and
farmed the land to the exclusion of Steve’s brothers and their successors-in-interest. Aerial
photographs from 1968 to 2010 show that the north-south boundary recognized by the
brothers extended beyond the north-south survey boundary, and the district court found
that “[t]estimony and aerial photographs show that the parties clearly honored a boundary
line markedly different from the survey line for a time far longer than the fifteen year
statutory period.” Moreover, we agree with the district court that “the lack of testimony as
to the exact coordinates of the line during this period does not negate the clear and
convincing evidence that the parties recognized a boundary line identified by the two
relevant landmarks, and does not defeat the adverse possession claim.”
Accordingly, Steve and Louise had exclusive possession of the disputed area by
adverse possession before selling the parcel to respondents, and this title passed to
respondents with the sale of the parcel. Thus, respondents’ subsequent use of the property
from 2010 to 2013 does not impact the district court’s factual findings and legal
conclusions.
9
IV. Continuous
Appellants similarly argue that respondents failed to maintain continuous
possession because they slowly encroached on the grass strip from 2010 to 2013. To
acquire title to a disputed area of land, the adverse possessor must continuously use the
land for a period of 15 years before bringing an adverse possession claim. See Minn. Stat.
§ 541.02 (2014). If the adverse possession is interrupted during the 15-year period,
possession of the property reverts to the original holder of the title. Ganje, 659 N.W.2d at
268. But “the possession of successive occupants, if there is privity between them, may be
tacked to make adverse possession for the requisite period.” Ebenhoh, 642 N.W.2d at 109
(quoting Fredericksen, 167 Minn. at 360, 209 N.W. at 259).
The district court found that respondents’ predecessors-in-interest continuously and
exclusively possessed the disputed area for a period of 15 years, and the record supports
this conclusion. Steve and Louise exclusively farmed the disputed area from 1965 to
2010—their exclusive and continuous possession of the disputed area was well beyond the
requisite 15-year period. In 2010, Louise sold the property to respondents, and their
partnership farmed the land without interruption until 2013. Steve and Louise therefore
perfected title well before selling the parcel to respondents in 2010.
Appellants’ argument that respondents failed to continuously possess the property
from 2010 to 2013 is unavailing. As aforementioned, “continuous” possession is not
required to maintain adverse possession once the disseizor of the property has acquired title
by adverse possession. See Fredericksen, 167 Minn. at 361, 209 N.W. at 259. Thus,
respondents’ continued possession was not necessary to maintain possession, and their use
10
of the disputed area after their predecessors-in-interest does not impact this adverse
possession claim.
V. Hostility
Finally, appellants argue that respondents failed to establish that their predecessors’
use of the property was hostile. For possession to be hostile, the disseizor must “enter and
take possession of the lands as if they were his own . . . with the intention of holding [it]
for himself to the exclusion of all others.” Ebenhoh, 642 N.W.2d at 110 (quotation
omitted). The term “hostility” under adverse possession claims does not require “personal
animosity or physical overt acts against the record owner.” Id. (quoting Ehle, 293 Minn.
at 190, 197 N.W.2d. at 462). Rather, hostility requires possession and ownership to the
exclusion of others, and hostility is “flexibly determined by examining the character of the
possession and the acts of ownership of the occupant.” Id. at 110-11 (quotation omitted).
Generally, adverse or hostile intent may be inferred “by examining the character of
the possession and the acts of ownership.” Id. (quotation omitted). But this inference is
tempered when a close family relationship exists between the alleged disseizor and the
record owner. See id. In these instances,
the existence of a close family relationship between the
claimant of land and the record owner . . . create[s] the
inference, if not the presumption, that the original possession
by the claimant of the other’s land was permissive and not
adverse and that when such use was thus permissive it would
be presumed to continue as permissive, rather than hostile,
until the contrary was affirmatively shown.
11
Norgong v. Whitehead, 225 Minn. 379, 383, 31 N.W.2d 267, 269 (1948); see also Wojahn
v. Johnson, 297 N.W.2d 298, 306 (Minn. 1980) (noting that this standard applies to adverse
property disputes between siblings).
Applying this standard, the district court found that (1) all three of the brothers
respected “what they believed to be the property line,” (2) Steve and Louise had the
exclusive right to control and possess all of the property east of the boundary, (3) Steve
and Louise considered all property east of the occupation boundary to be theirs, (4) neither
Mark nor Alois gave Steve and Louise permission to farm east of the occupational
boundary, and (5) neither brother challenged Steve and Louise’s use of the property. The
district court’s findings are not clearly erroneous. Steve and Louise had open, actual,
continuous, and exclusive use of the property from 1965 to 2010. During this time, they
farmed up to the recognized boundary. They entered the disputed area and took possession
of the property as if they were the actual owners, with the intention of holding the tract out
to the exclusion of others. In essence, their possession was hostile in the sense that Steve
and Louise entered the disputed area and took possession with the intention of excluding
Steve’s brothers.
The district court’s factual finding that respondents proved, by clear and convincing
evidence, acquisition of title to a portion of appellant’s property by adverse possession, is
supported by the record and therefore not clearly erroneous.4 However, it is unclear from
4
Appellants further argue that, contrary to Minnesota law, the district court drew improper
inferences in favor of respondents based on the aerial photographs admitted at trial. See
Ebenhoh v. Hodgman, 642 N.W.2d 104, 108 (Minn. App. 2002) (“Evidence tending to
establish adverse possession must be strictly construed, without resort to any interference
12
the district court’s findings whether the area adversely possessed included respondents’
westward creep from 2010 to 2013. Because we cannot determine the exact location of the
recognized boundary based on the record submitted on appeal, we remand to the district
court with instructions for the court to determine the precise location of the boundary
recognized by Steve and Louise and the boundary recognized by respondents. If the district
court concludes that the boundary recognized by respondents extends beyond the boundary
recognized by Steve and Louise, the district court must limit the adverse possession claim
to the portion of the disputed property adversely possessed by Steve and Louise. Any
property beyond the portion possessed by Steve and Louise lawfully belongs to appellants.
On remand, the district court may, if necessary, reopen the record and conduct a further
evidentiary hearing.
Affirmed in part, reversed in part, and remanded.
or presumption in favor of the disseizor, but with the indulgence of every presumption
against him.”). We disagree. The district court’s findings are clearly supported by the
testimony of Louise and the land surveyor, and the district court did not draw improper
inferences based on aerial photographs.
13