Larson v. Tonneson

Filed 9/12/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 230

Teresa L. Larson, Janet F. Schelling,
and Lynette A. Helgeson, Plaintiffs and Appellees

v.

Jon Tonneson, Mary Issendorf, in her
personal capacity and in her capacity as
the personal representative of the Estate of
Vesper Shirley, the Estate of Vesper Shirley,
and all other persons interested either as heirs,
creditors, or otherwise, in the estates of the
above-mentioned persons or entities, and all
other persons unknown, claiming any interest
in or encumbrance upon the property
described in the complaint, Defendants and Appellants

No. 20180169

Appeal from the District Court of Bottineau County, Northeast Judicial
District, the Honorable Anthony S. Benson, Judge.

AFFIRMED AND REMANDED.

Opinion of the Court by VandeWalle, Chief Justice.

James A. Teigland, Fargo, ND, for plaintiffs and appellees.

Michael S. McIntee, Bottineau, ND, for defendants and appellants.
 Larson v. Tonneson
No. 20180169

VandeWalle, Chief Justice.
[¶1] Jon Tonneson and Mary Issendorf, in her personal capacity and as personal
representative of the estate of Vesper Shirley, (“defendants”) appealed from a
judgment quieting title to certain property in Teresa Larson, Janet Schelling, and
Lynette Helgeson (“plaintiffs”). We conclude the district court did not clearly err in
finding Larson, Schelling, and Helgeson acquired the disputed property by adverse
possession. We affirm the judgment but remand the case for entry of a corrected
judgment.

I
[¶2] The plaintiffs and defendants are successors in interest to certain property at
Lake Metigoshe in Bottineau County. The parties acquired their respective properties
through their families beginning in the 1950s. In 2012, the plaintiffs became aware
of property boundary issues after a survey was conducted when plaintiffs were
attempting to replace a mobile home on the property. At that time, the plaintiffs also
discovered a platted roadway ran through their property, though no such roadway
existed on the property. The plaintiffs thereafter took steps to vacate the road.
[¶3] In 2014, the Roland Township Board of Supervisors granted a petition to
discontinue and vacate a portion of the platted roadway. Landowners in the area also
signed an easement covering the roadway actually in use by the owners and the public
to ensure access to the various lots, which runs along the northern boundary of the
subject property in this case. While the plaintiffs were able to reach some boundary
line agreements with neighbors, a dispute remained regarding ownership of the
disputed property involved in this case.
[¶4] The lake property at issue is within or adjacent to property platted in July 1950
as Larson’s Beach Addition and is an irregularly-sized tract referred to at trial as

1
comprised of specific parcels making up the whole. The undisputed portion of the
property is located along the shore of Lake Metigoshe. The 1950 plat for Larson’s
Beach shows the platted roadway—which the district court found had neither been
opened nor used—running through the property from an easterly and westerly
direction, as well as from a northwesterly direction. A small triangle of land located
along the northwesterly edge of the parcel was referred to as the “Tonneson triangle.”
A larger triangle located along the northeasterly boundary of the parcel was called the
“Issendorf triangle.” The parties did not dispute plaintiffs’ ownership of the largest
part of the parcel along the southerly portion of the tract. Rather, the parties disputed
ownership of the Tonneson triangle, the Issendorf triangle, and the platted roadway.
[¶5] In 2015, plaintiffs Larson, Schelling, and Helgeson commenced this action to
quiet title to disputed portions of that property, claiming they had acquired title to the
disputed property by adverse possession. They requested the district court to quiet
title to the property in them and decree that the defendants had no estate or interest in,
or lien or encumbrance upon, the property. The plaintiffs amended their complaint
to include claims for the doctrines of agreed boundaries, acquiescence, and estoppel,
and a claim for a prescriptive easement. The defendants Tonneson and Issendorf
answered, alleging the plaintiffs were not owners of any property owned by them and
requested the complaint be dismissed.
[¶6] On April 27 and 28, 2017, the district court held a bench trial on whether
Larson, Schelling, and Helgeson had acquired the Tonneson triangle, the Issendorf
triangle, and the platted roadway property by adverse possession. The court received
exhibits and heard testimony from plaintiffs Larson and Schelling, defendants
Tonneson and Issendorf, the parties’ expert land surveyors, and Bottineau County
employees. The court and the parties’ attorneys also inspected the property.
[¶7] In its subsequent findings the district court detailed the activity of the
plaintiffs, including their families and predecessors, on the property:
Since the early 1960s there have been a total of three trailer homes
placed on the property, with the 1964 trailer home being replaced by
the 1993 mobile home. During the inspection of the property following

2
 the trial, it was observed that there were no wheels on the axles of the
two trailer homes on the property; however, neither were the trailer
homes sufficiently attached to the land so as to become affixed to the
real estate. There was cement poured for a mudroom which was
attached to Janet’s trailer, although the mud room is no longer there.
While there has been ordinary lawn maintenance, the Plaintiffs
and their families also spent time and effort in removing trees and
brush, so that the trailer homes could be placed, and the property used
for its main recreational purpose at Lake Metigoshe. Primarily the
property has been used in the summer months, but there was a period
of time that the Plaintiffs also used it in the winter, for such activities
as ice fishing and snowmobiling, as well as use during a family
wedding in the winter. In addition to ordinary lawn care and removing
trees and brush, there was also gravel put down on the property, both
to provide a stable base for the trailer houses, as well as to maintain the
road into the property and parking for vehicles. The Plaintiffs have
used the property for storing large items, such as campers, lake toys and
boats, and have put two storage sheds on the property, one in 1972 and
one in 2005. The 1972 storage shed sits in part on the Issendorf
triangle as well as on part of the platted roadway.
There was a well drilled into the property, and a fence erected
by the well. There has also been a firewood shelf on the property, with
cement being poured under the shelving unit. The Plaintiffs and their
families have used the subject property, including portions of the
platted roadway, the Tonneson triangle, and the Issendorf triangle as if
it were their own property, since the early 1960’s to the present. It is
true that a portion of the Issendorf triangle is still in its wooded
condition, and has not been cleared by the Plaintiffs or their families.
[¶8] In a December 2017 opinion, the district court quieted title to the property in
Larson, Schelling, and Helgeson, finding the plaintiffs had acquired the disputed
property by adverse possession under N.D.C.C. § 28-01-11. On March 2, 2018, the
court entered its findings of fact, conclusions of law, and order for judgment, and
judgment was entered. On March 12, 2018, defendants filed an objection to costs and
disbursements. After further proceedings, the court entered an order regarding costs
on April 27, 2018, and ordered a corrected judgment be entered.
[¶9] On May 3, 2018, Tonneson and Issendorf filed their notice of appeal in this
Court, appealing from the March 2018 judgment. On May 4, 2018, one day after the

3
notice of appeal was filed, the district court entered purported “corrected findings of
fact, conclusions of law, and order for judgment” and a “corrected judgment.”

II
[¶10] In an appeal from a bench trial, the district court’s findings of fact are reviewed
under the clearly erroneous standard of review, and its conclusions of law are fully
reviewable. Sauter v. Miller, 2018 ND 57, ¶ 8, 907 N.W.2d 370; Moody v. Sundley,
2015 ND 204, ¶ 9, 868 N.W.2d 491. A finding of fact is clearly erroneous if it is
induced by an erroneous view of the law, if there is no evidence to support it, or if,
after reviewing all of the evidence, this Court is convinced a mistake has been made.
Sauter, at ¶ 8; Moody, at ¶ 9. “In a bench trial, the district court is the determiner of
credibility issues and we will not second-guess the district court on its credibility
determinations.” Sauter, at ¶ 8. “Findings of the trial court are presumptively
correct.” W. Energy Corp. v. Stauffer, 2019 ND 26, ¶ 5, 921 N.W.2d 431 (citing
Brash v. Gulleson, 2013 ND 156, ¶ 10, 835 N.W.2d 798).

III
[¶11] Tonneson and Issendorf argue that the district court erred in finding the
plaintiffs acquired title to the Tonneson triangle, the Issendorf triangle, and the platted
roadway by adverse possession.
[¶12] Generally, N.D.C.C. § 28-01-07 provides a presumption against the adverse
possession of real property “unless it appears that such premises have been held and
possessed adversely to such legal title for twenty years before the commencement of
such action.” Section 28-01-10, N.D.C.C., states: “When there has been an actual
continued occupation of premises under a claim of title exclusive of any other right,
but not founded upon a written instrument or upon a judgment or decree, the premises
actually occupied and no other must be deemed to have been held adversely.”
(Emphasis added.)

4
[¶13] In this case, the district court found the plaintiffs established adverse
possession of the disputed property under N.D.C.C. § 28-01-11, which provides:
For the purpose of constituting an adverse possession by a person
claiming title not founded upon a written instrument nor upon a
judgment or decree, land shall be deemed to have been possessed and
occupied only in the following cases:
1. When it has been protected by a substantial enclosure; or
2. When it has been usually cultivated or improved.
[¶14] “To satisfy the elements for adverse possession, the acts on which the claimant
relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such
character to unmistakably indicate an assertion of claim of exclusive ownership by the
occupant.” Gruebele v. Geringer, 2002 ND 38, ¶ 7, 640 N.W.2d 454; see also Benson
v. Feland Bros. Props., 2018 ND 29, ¶ 15, 906 N.W.2d 98; Benson v. Taralseth, 382
N.W.2d 649, 653 (N.D.1986); Torgerson v. Rose, 339 N.W.2d 79, 84 (N.D.1983);
Woodland v. Woodland, 147 N.W.2d 590, 597 (N.D. 1966). “[A]ctual knowledge of
the adverse possession is not necessary if there is a course of conduct directly hostile
and these acts of hostility are ‘unmistakably clear.’” Benson, 382 N.W.2d at 653.
The person claiming property by adverse possession has the burden to prove the claim
by clear and convincing evidence, and “every reasonable intendment will be made in
favor of the true owner.” Gruebele, at ¶ 8. “All of the elements must be satisfied, and
if any elements are not satisfied the possession will not confer title.” Moody, 2015
ND 204, ¶ 11, 868 N.W.2d 491. Whether an adverse possession has occurred
presents a question of fact, which will not be reversed on appeal unless clearly
erroneous. Moody, at ¶ 11; Gruebele, at ¶ 6.

IV
[¶15] Tonneson and Issendorf argue the district court erred in deciding the plaintiffs
had acquired their interest in the platted roadway by adverse possession. They argue
the court erred in finding the 20-year statutory period for the plaintiffs to adversely
possess the platted roadway began to run before the township had vacated the
dedicated public road in 2014. They contend, therefore, the plaintiffs could not have

5
taken the portion of the roadway belonging to the Tonneson and Issendorf families
by adverse possession.
[¶16] This Court has long held that adverse possession cannot be obtained against
a public entity under North Dakota law. See, e.g., Smith v. Anderson, 144 N.W.2d
530 (N.D. 1966); City of Jamestown v. v. Miemietz, 95 N.W.2d 897 (N.D. 1959). In
Smith, 144 N.W.2d at 534 (citations omitted), this Court stated, “The question that
comes to mind at the outset is whether a municipality can be divested of title to its
public streets and alleys by adverse possession. Our view is that it cannot.” The
Court in Smith then explained the basis for this “widely accepted rule”:
It has been said that the weight of authority supports the
conclusion that title to public streets and alleys cannot be acquired by
prescription.
* * * By the great weight of authority it is held that the
rights of the public in a street or alley cannot be divested
by adverse possession of another for the statutory period,
unless the public use has been abandoned by competent
authority and the land is held as proprietary property.
Thus, no title can arise out of long-continued
encroachment or obstruction of a public street or alley.
Nor is it material that the adverse possession is of all of
the street in question, instead of merely a part thereof.
Accordingly, by the weight of authority, title to
public streets and alleys cannot be acquired by
prescription. In many of the states in which the opposite
rule formerly prevailed, statutes have been enacted
changing the law to conform to the majority view * * *.
11 McQuillin, Municipal Corporations § 30.179, at 88-92
(3d ed. rev. 1964).
The writers of American Jurisprudence call this view a widely
accepted general rule:
Before it becomes material whether possession of
a street, highway, park, square, or the like is adverse, the
particular governmental body against whom the right is
asserted must be subject to the running of the statute of
limitations; the federal and state governments are not
generally subject to the statute, and the tendency is to
regard other governmental subdivisions in the same light,
at least in regard to property held for public use. It is
therefore a widely accepted general rule that the statute

6
 of limitations does not run in favor of those who occupy
property of this character, and that no title can be
acquired thereto by such occupancy, no matter how long
it has been continued and whatever may have been its
character. * * *
3 Am.Jur.2d Adverse Possession § 207, at 300 (1962).
Although it is acknowledged by both texts referred to that there
is authority to the contrary, we are convinced that the rule stated by the
weight of authority is the correct one.
Smith, 144 N.W.2d at 534. While the above-quoted language from the 1964
McQuillin treatise has essentially been retained in the treatise’s current version, the
paragraph that follows in the current treatise is also instructive in this case:
The wisdom of the statute forbidding the acquisition of lands
appropriated to public use by adverse possession has been thoroughly
justified by experience. However, in some jurisdictions, there are
provisions recognizing or conferring title by adverse possession to
streets or parts of streets in certain cases. Additionally, statutes
providing that nonuse of streets for a designated period shall constitute
an abandonment are not uncommon. Needless to say, the rules relating
to adverse possession apply only to legally constituted streets or alleys.
11 Eugene McQuillin, The Law of Municipal Corporations § 30:166 (3d ed. 2018 rev.
vol.) (footnotes omitted) (emphasis added).
[¶17] Courts have held that “[t]itle by adverse possession may be acquired to an
alleged street where it has not been opened to public use, an offer to dedicate it has
been made but not accepted, or it has been vacated, abandoned, or discontinued.” 2
C.J.S. Adverse Possession § 23 (2013). Another legal encyclopedia explains:
Where such highways have not been opened or used, in many
jurisdictions, the general rule that highways cannot be lost through
adverse possession applies while in other jurisdictions, when streets are
laid out on a plat but are not so used by the public, they are nothing
more than private ways and may be adversely possessed. Thus, in some
states, title by adverse possession may be acquired relative to streets or
parks that are unopened or unaccepted. In the absence of passage of
title to the public, a public roadway is not created which would be
immune from adverse possession. In some jurisdictions, title may be
acquired by the adverse possession of land when its use as a highway
has been abandoned or vacated.

7
3 Am. Jur.2d Adverse Possession § 261 (2013) (footnotes omitted) (emphasis added).
Therefore, while adverse possession generally cannot be obtained against a public
entity, title may nonetheless be acquired by adverse possession when a roadway has
been unopened to public use, an offer to dedicate it has been unaccepted, or it has
been vacated or abandoned. Moreover, “[w]here an abutting owner owns the fee or
has private rights of any street, his or her title or rights, as distinguished from the
rights of the public, may be acquired by adverse possession.” 2 C.J.S. Adverse
Possession § 23; see also 11 McQuillin § 30:167 (“The adverse possession of another
for the statutory period may bar the title of an abutting owner, without regard to
whether title is acquired as against the public.”).
[¶18] In North Dakota, “[a]s a general rule and under our statutes a conveyance by
an owner of land bounded by a street or a highway carries the fee to the center of the
way unless the contrary is shown.” Welsh v. Monson, 79 N.W.2d 155, 157 (N.D.
1956) (citing 11 C.J.S. Boundaries § 35); see also N.D.C.C. § 47-01-16 (“An owner
of land bounded by a road or street is presumed to own to the center of the way, but
the contrary may be shown.”). Section 47-10-10, N.D.C.C., provides:
A transfer of land bounded by a highway, street, alley, or public right
of way passes the title of the person whose estate is transferred to the
soil of the highway, street, alley, or public right of way in front to the
center thereof unless a different intent appears from the grant. Every
conveyance of real estate, which abuts upon a vacated highway, street,
alley, or other public right of way, shall be construed, unless a contrary
intent appears, to include that part of such highway, street, alley, or
public right of way which attaches either by operation or presumption
of law, to such abutting real estate upon such vacation.
[¶19] Under N.D.C.C. § 24-06-01, a township board has “general supervision over
the roads, highways, and bridges throughout the township.” In circumstances where
a township has laid out a road but fails to open the road within ten years, such an
unopened road is statutorily declared vacant. See N.D.C.C. § 24-07-31 (“Any road
or part thereof laid out by authority of . . . a board of township supervisors, and not
opened to public use within ten years from the time when it was laid out, or which
thereafter is abandoned and not used for ten years, hereby is declared vacant.”).

8
Rather than a road laid out by a township, however, this case involves an unopened
roadway dedicated in a 1950 plat.
[¶20] Here, the district court held that under our law, the 1950 plat containing the
platted roadway constituted merely an offer by the owner to dedicate a roadway for
public use. The court found, however, the evidence at trial showed that at least since
the 1960s, no such roadway had ever existed or been used by the public. The court
also noted the area landowners had signed an easement covering the roadway actually
in use by the owners and the public to ensure access to the various lots, which runs
along the north boundary of the subject property. The court thus found that “as to the
platted roadway, there was no action by or on behalf of the public, or by the public
authorities, to complete or accept the offer by the owner to dedicate such roadway for
public use.” Relying on Welsh, 79 N.W.2d at 158, the court concluded the platted
roadway did not become a public right-of-way held by the township, but instead
remained privately owned property and subject to an adverse possession claim.
[¶21] Tonneson and Issendorf argue the district court erred in relying on the Welsh
case. They contend Welsh is inapplicable because the plat filed in this case included
language dedicating the designated road for the public use and the parties recognized
the public right to the property. We construe their argument essentially to challenge
the court’s finding there was no action by the public or public authorities to complete
or accept the offer to dedicate the roadway for public use.
[¶22] This Court has recently examined the law regulating dedications in the platting
of real property:
Private land may be dedicated to public use in two ways, pursuant to
statute and under the common law. Two distinctions separate the
different types of dedication. First, the common law dedication
operates by way of an equitable estoppel, whereas a statutory
dedication operates by way of grant. Second, a common law dedication
usually creates a mere easement, whereas in a statutory dedication the
fee of the property is in the public.
Winnie Dev. LLLP v. Reveling, 2018 ND 47, ¶ 8, 907 N.W.2d 413 (quoting 11A
McQuillin § 33:5 (3d ed. Supp. 2017)); see also Becker v. Burleigh Cty., 2019 ND 68,

9
¶ 20, 924 N.W.2d 393. “Dedication arises when a private landowner sets aside land
for public use.” Becker, at ¶ 20. “Dedication may be express or implied, and may be
established statutorily or by common law.” Id. “A statutory dedication is in the
nature of a grant, while a common-law dedication rests upon the principles of estoppel
in pais.” Id. (citations and quotation marks omitted).
[¶23] In Welsh, 79 N.W.2d at 158, this Court explained that the filing of the plat
constitutes an offer by the owner to dedicate such streets and avenues to public use.
“The dedication is completed by action on behalf of the public by use thereof or by
some action of the public authorities.” Id.; see also Miemietz, 95 N.W.2d at 902. “At
common law, an offer to dedicate is not binding and there are no rights or duties
connected with such an offer until it has been accepted.” 26 C.J.S. Dedication § 38
(2011); see also Ramstad v. Carr, 31 N.D. 504, 527, 154 N.W. 195, 202 (1915)
(“While there is a great deal of conflict in the authorities upon the question of whether
an acceptance is necessary in the case of a statutory dedication, still we believe that
the better and more prevalent rule is that an acceptance is necessary.”). This Court
has said an acceptance will generally be presumed when the dedicated property’s use
is shown to be beneficial, when all prescribed steps by statutory provisions governing
dedication have been taken by the owner, or when public authorities “assign[] . . .
hands to the maintenance and repair of such property.” City of Grand Forks v. Flom,
79 N.D. 289, 294, 56 N.W.2d 324, 327 (1952) (quoting 26 C.J.S. Dedication § 45).
Whether there is a dedication and an acceptance of the dedication are questions of
fact. See Benjamin v. City of Norwalk, 153 A.3d 669, 677 (Conn. Ct. App. 2016)
(quoting Meshberg v. Bridgeport City Trust Co., 429 A.2d 865 (Conn. 1980); see also
Winnie Dev., 2018 ND 47, ¶ 13, 907 N.W.2d 413; Tibert v. City of Minot, 2004 ND
97, ¶ 17, 679 N.W.2d 440.
[¶24] Here, on the basis of the evidence at trial, the district court specifically found
the platted roadway did not become a public right-of-way held by the township
because no action was taken by the public or public authorities to complete or accept
the owner’s offer to dedicate the roadway to public use. The court correctly

10
concluded that the roadway remained privately-owned property and subject to a claim
for adverse possession. On this record, while the evidence shows the 1950 plat
contains a platted roadway dedicated to public use, we conclude the court did not
clearly err in its finding no action by the public or public authorities had been taken
to complete or accept the offer to dedicate the roadway for public use. The court
therefore did not err in holding the platted roadway was subject to an adverse
possession claim.1

1
We note that our decision in Winnie Dev., 2018 ND 47, ¶ 9, 907 N.W.2d 413,
is not dispositive in this case. In Winnie Dev., we discussed the specific requirements
for dedication by plat for a plat that the City of Horace approved on June 4, 1979, and
was recorded on July 2, 1979. Specifically, the Winnie case applied N.D.C.C. § 40-
50-04, as amended in 1979. See 1979 N.D. Sess. Laws ch. 451, § 3. This section
stated in part: “Every plat, when duly certified, signed, and acknowledged, shall be
filed and recorded in the office of the county register of deeds. No plat shall be
recorded until it is approved by the governing body affected by the plat and a
certificate evidencing such approval is presented to the register of deeds.” N.D.C.C.
§ 40-50-04 (effective July 1, 1979) (emphasis added), repealed by H.B. 1342, 1987
N.D. Sess. Laws ch. 501, § 20; see N.D.C.C. § 40-50.1-03 (re-codifying N.D.C.C. §
40-50-04); see also N.D.C.C. § 40-01-01(3) (1983) (“[g]overning body” defined for
title 40 as “the city council or the board of city commissioners, as the case may be, of
a municipality concerned or affected”); N.D.C.C. § 40-01-01(4) (1983) (“[m]unicipal
corporation” or “municipality” defined as including “all cities organized under the
laws of this state, but shall not include any other political subdivision”). Under the
law in 1979, it was clear the City was required to approve the plat before the plat
could be filed with the register of deeds.
This case, however, involves a plat filed in the 1950s. Setting aside the
question of whether the governing body involved here would be considered a
municipality at the time for purposes of title 40, N.D.R.C. 1943 § 40-5004, provided
in part: “After the plat or map has been completed, it shall be certified by the surveyor
and the officers, if it is correct. No plat shall be recorded until it is approved by the
engineer of the municipality affected by the plat, or if there is no such municipal
engineer, by the county surveyor.” On its face, this section required approval by the
municipal engineer or county surveyor. Here, the district court made specific findings
of fact that no action had been taken by the public or public authorities, necessarily
including the township, to complete or accept the offer to dedicate the road to public
use. Because the plat in this case was filed in the 1950s, it is not governed by the law
in effect in the Winnie case.

11
[¶25] Tonneson and Issendorf further rely on James v. Griffin, 2001 ND 90, 626
N.W.2d 704, to argue the 20-year adverse possession period for the portion of the
platted road claimed by Tonneson and Issendorf began to run only after the township
vacated the dedicated public road. The James case, however, involves the principle
of tacking to establish the 20-year period for a new boundary line by acquiescence
between adjoining landowners. “[W]hen tacking is relied upon to meet the 20-year
period, it must result in a single continuous acquiescent possession.” James, at ¶ 11.
We explained that the temporary possession in a government entity did not relieve a
party claiming acquiescence or adverse possession from showing the entity’s
possession was adverse to the true owner, to be tacked to satisfy the 20-year period.
Id.
[¶26] The Court in James ultimately held the 20-year period of acquiescence had
been interrupted when the city briefly took title to the homeowners’ property. James,
2001 ND 90, ¶¶ 14-15, 626 N.W.2d 704. Because no evidence showed the city
recognized the claimed boundary, we held that the statutory period began to run when
the city relinquished its title and that the homeowners could not establish acquiescent
possession of the disputed area for the 20-year period. Id. The James case does not
address adverse possession against a municipality of an unaccepted, unopened platted
roadway. Tonneson and Issendorf’s reliance on this case therefore is misplaced.
[¶27] We conclude the district court’s findings that the offer to dedicate the platted
roadway to public use was unaccepted and that the road was neither opened nor used
by the public were not clearly erroneous. We further hold the court did not err in
concluding title to the unaccepted, unopened platted roadway could be acquired by
adverse possession.

V
[¶28] Tonneson and Issendorf argue the district court erred in finding adverse
possession because the plaintiffs’ use and occupation of the disputed property were

12
insufficient to establish the requisite elements for the statutory period. They contend
plaintiffs’ use of the dedicated public right-of-way by placing a small fence, a shed,
and temporary storage of recreational equipment for less than two years after the
township vacated the platted road did not constitute a substantial enclosure or
improvement of the property. They claim plaintiffs’ use of the northern portion’s
trees and bushes for privacy and dust control by leaving the property in a natural state
did not constitute usage for adverse possession purposes. They also argue that
plaintiffs’ erecting a second storage shed on the Tonneson property, only ten years
before the filing of this action, did not meet the 20-year occupancy requirement and
also that temporarily placing garbage cans on the Tonneson property for garbage
pickup did not constitute an improvement to property and continuous usage.
[¶29] While Tonneson and Issendorf dissect the specific findings that the district
court found established the plaintiffs’ occupation and use of the disputed property, it
is the “combination of various acts” that may establish adverse possession. See 3 Am.
Jur.2d Adverse Possession § 26. Generally, “[a]ll acts of a possessory nature by an
adverse claimant are to be considered collectively, rather than independently, in
determining the sufficiency of actual possession for purposes of an adverse possession
claim.” Id. As discussed, to establish adverse possession the claimants act’s must be
actual, visible, continuous, notorious, distinct, and hostile and of such character to
unmistakably indicate an assertion of the occupant’s claim of exclusive ownership.
See Benson, 2018 ND 29, ¶ 15, 906 N.W.2d 98; Gruebele, 2002 ND 38, ¶ 7, 640
N.W.2d 454. In this case the plaintiffs claimed adverse possession under N.D.C.C.
§ 28-01-11(2), which provides that the “land shall be deemed to have been possessed
and occupied only . . . [w]hen it has been usually cultivated or improved.”
[¶30] Here, the district court found that the plaintiffs’ use and occupation of the
property had resulted in the property being “usually cultivated or improved.” The
court found their possession had been more than ordinary care and maintenance of the
property. The court found that since the 1960s the plaintiffs placed multiple trailers
on the property; they cleared trees and brush; they added sheds to the property; they

13
added gravel as a base for the trailer homes and to maintain and improve the roadway
into the property; they poured cement for a mud room on one trailer as well as for a
base for a firewood shelf; and they added a well to the property. The court specifically
found the conduct was more than simple maintenance and lawn care and, considering
the nature and character of the lake property, satisfied N.D.C.C. § 28-01-11(2). The
court found that the plaintiffs and their families have used the entire disputed property
as if it were their own since the early 1960s to the present and that the plaintiffs’
possession of the property had been continuous. The court’s inspection of the
disputed property also supports its fact finding regarding the disputed property.
[¶31] Tonneson and Issendorf argue that, even if this Court concludes the plaintiffs
sufficiently cultivated and improved the disputed property, the plaintiffs are only able
to claim the “shed area” under N.D.C.C. § 28-01-10, and plaintiffs have not provided
a metes and bounds description of that area. We reject, however, such a narrow
interpretation of N.D.C.C. § 28-01-10. The district court found the plaintiffs’ use and
occupation consisted of the entire area of disputed property.
[¶32] To the extent Tonneson and Issendorf argue the plaintiffs and predecessors in
interest did not establish the requisite continuousness of their possession, we conclude
the district court did not err in considering the character and nature of the disputed
property. Courts have held a claimant’s periodic activities on land may be sufficiently
“continuous” to support an adverse possession claim when the activities “are
consistent with the character of the land throughout the possessory period.” See 3
Am. Jur.2d Adverse Possession § 69. “For example, the regular use of property as a
summer home and for recreation purposes during summers can be continuous for a
claim of adverse possession.” Id. (citing Kay v. Biggs, 475 P.2d 1 (Ariz. Ct. App.
1970); Mahoney v. Heebner, 178 N.E.2d 26 (Mass. 1961); Nechtow v. Brown, 120
N.W.2d 251 (Mich. 1963); Lee v. Raymond, 456 A.2d 1179 (R.I. 1983); Burkhardt
v. Smith, 115 N.W.2d 540 (Wis. 1962)); see also Booten v. Peterson, 288 P.2d 1084,
1086 (Wash. 1955) (disputed property’s use as a “beach place and summer home”
sufficient for adverse possession), overruled on other grounds by Chaplin v. Sanders,

14
676 P.2d 431, 436 n.2 (Wash. 1984); Howard v. Kunto, 477 P.2d 210, 213-14 (Wash.
Ct. App. 1970) (rejecting “the conclusion that summer occupancy only of a summer
beach home destroys the continuity of possession” because “the requisite possession
requires such possession and dominion ‘as ordinarily marks the conduct of owners in
general in holding, managing, and caring for property of like nature and condition’”),
overruled on other grounds by Chaplin, 676 P.2d at 436 n.2.
[¶33] “Continuous use or possession therefore may be established notwithstanding
seasonal breaks from the use of the property.” 3 Am. Jur.2d Adverse Possession § 69.
“[C]ontinuity may be maintained by intermittent or seasonal use of land which is
primarily or obviously adapted to such use . . . . It is enough that the land be devoted
to the ordinary uses of the adverse claimant provided they are such as to put the true
proprietor on notice.” 3 C.J.S. Adverse Possession § 151 (footnotes omitted). On this
record, we conclude the district court did not err in finding the necessary continuous
use and possession in consideration of the character and nature of the property as
recreational lake property.
[¶34] Tonneson and Issendorf contend the district court erred in finding the
plaintiffs’ use of another’s trees for privacy and dust control by leaving such property
natural constitutes “usage” of those trees for adverse possession purposes. While it
has been acknowledged that “woodland” differs from other types of land, there must
still be some continuous acts of adverse possession. See Cuka v. Jamesville
Hutterian Mut. Soc., 294 N.W.2d 419, 422-23 (S.D. 1980); 2 C.J.S. Adverse
Possession § 40. “Actual possession of a woodland, or wooded, unenclosed,
undeveloped parcel, is established by residence or cultivation of a part of the tract of
land to which the woodland belongs.” 2 C.J.S. Adverse Possession § 40. Although
a wooded area need not be completely cleared before the statutory 20-year adverse
possession period begins to run, “[i]t is only necessary that a continuous clearing
takes place and that the land then be used for other suitable purposes.” Cuka, 294
N.W.2d at 422. “The possession need not be unceasing, but the evidence should be

15
such as to warrant the inference that the actual use and occupation have extended over
the required period.” Id. (citations and quotation marks omitted).
[¶35] In this case, the district court specifically found the wooded area, while not
cleared or disturbed, had in fact been used and possessed by the plaintiffs and their
families since the 1960s and that they had maintained it in its natural condition for
privacy from the common roadway, as a part of the “enhanced enjoyment” of the
disputed property. The physical location of the wooded area was also noted by the
court and is significant. The wooded property was on the plaintiffs’ side of the road
created by the consensual easement. Gravel on that portion of the road was
maintained by the plaintiffs. Although minimal, the maintenance required for the
wooded area included the occasional clearing of trees and brush, and was done by the
plaintiffs. While this may be a close case, the court’s findings do support the notion
of continuous use of the disputed property and as establishing privacy from the
roadway actually in use.
[¶36] The district court’s findings are presumptively correct, and we will not
second-guess the court on its credibility determinations. There is evidence in the
record that supports the district court findings that the plaintiffs and their predecessors
used the property during the summer months and in the off-season. From the
evidence of the plaintiffs’ acts supporting the district court’s findings, we conclude
it is clear they intended to claim title to all of the disputed area and to hold it as
owner. As the district court found, their possession of the disputed property for more
than the statutory period was actual, visible, continuous, notorious, distinct, and
hostile, and of such character to unmistakably indicate an assertion of claim of
exclusive ownership.
[¶37] On the basis of the record, we conclude the district court’s findings were not
induced by an erroneous view of the law, there is evidence in the record to support the
findings, and we are not convinced a mistake has been made. We affirm the district
court’s finding that the plaintiffs adversely possessed the disputed property.

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 VI
[¶38] While we affirm the March 2018 judgment, we also address a jurisdictional
issue regarding the district court’s “corrected judgment” entered on May 4, 2018, one
day after Tonneson and Issendorf filed their May 3, 2018, notice of appeal from the
March 2018 judgment. We have explained:
Generally, a district court loses jurisdiction when a notice of
appeal is filed. The jurisdiction of the Supreme Court attaches upon the
filing of the appeal, and generally the trial court has no further
jurisdiction in the matter. Further, [a]n order or judgment entered by
the trial court after an appeal has been filed is ordinarily void for lack
of jurisdiction.
CHS Inc. v. Riemers, 2018 ND 101, ¶ 16, 910 N.W.2d 189 (quoting Matter of S.E.,
2012 ND 168, ¶ 9, 820 N.W.2d 389 (citations omitted)) (quotation marks omitted).
In CHS, we vacated a corrected amended judgment because the district court lacked
jurisdiction to enter it after the appeal was filed. Id.; cf. N.D.R.Civ.P. 60(a) (“But
after an appeal has been docketed in the Supreme Court and while it is pending, such
a mistake may be corrected only with the Supreme Court’s leave.”).
[¶39] Here, Tonneson and Issendorf appealed from the March 2, 2018, judgment,
which we have affirmed. The district court entered the May 4, 2018 “corrected
findings of fact conclusions of law and order for judgment” and “corrected judgment,”
which includes the plaintiffs’ requested costs and disbursements. No issue regarding
costs and disbursements was raised in the present appeal. However, because the
district court was without jurisdiction to enter its corrected findings of fact,
conclusions of law and order for judgment and corrected judgment, we remand the
case only for the court to reenter them with jurisdiction.

VII
[¶40] We have considered the remaining arguments and conclude they are either
without merit or unnecessary to our decision. The March 2018 judgment is affirmed,
but the case is remanded to the district court for entry of the corrected order and

17
corrected judgment, as contemplated under the district court’s April 2018 order
regarding costs and for corrected judgment.
[¶41] Gerald W. VandeWalle, C.J.
Daniel J. Crothers
Lisa Fair McEvers

Tufte, Justice, concurring and dissenting.
[¶42] I agree with the majority opinion except to the extent it affirms the district
court’s conclusion that one may adversely possess a neighboring landowner’s trees
by “using” them as a barrier to control dust and preserve privacy. Section 28-01-10,
N.D.C.C., requires “actual continued occupation of premises” and extends adverse
possession only to “the premises actually occupied and no other.” Section 28-01-11,
N.D.C.C., permits a finding that land has been possessed and occupied “only in the
following cases: 1. When it has been protected by a substantial enclosure; or 2. When
it has been usually cultivated or improved.” The district court correctly found it
“beyond dispute” that there is no substantial enclosure around the property. The case
relied on by the majority in paragraph 34 does not support the district court’s finding
of adverse possession of the wooded area here. In Cuka v. Jamesville Hutterian Mut.
Soc., the South Dakota Supreme Court relied on a substantial enclosure in order to
find adverse possession of both cultivated and uncultivated parts of the tract at issue
there. 294 N.W.2d 419, 422-23 (S.D. 1980) (“The river in this instance was as much
of a substantial enclosure as any fence or other boundary marker could have been.”).
[¶43] Here, the district court found the wooded part of the Issendorf triangle was
“kept in its natural condition,” was “a natural barrier,” and “Plaintiffs . . . did . . .
choose not to disturb the natural condition of that part of the property.” It went on to
“acknowledge[] that portions of the Issendorf triangle remain in its naturally wooded
state, and there has not been any clearing or improvements of that property.” Despite
these findings, the district court concluded it had been “used and possessed by the
Plaintiffs . . . and the maintenance of it in its natural condition provided the Plaintiffs
privacy from a common roadway, to their enhanced enjoyment of the property.”

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[¶44] If the statute permits a finding of adverse possession on this basis, the
requirement of physical occupation demonstrated by a substantial enclosure,
cultivation, or improvement has been all but eliminated.

[¶45] I respectfully dissent as to adverse possession of the wooded area that was left
in its natural condition. I would remand for the district court to determine the
boundary between the property that was actually occupied and the wooded area that
was not.
[¶46] Jerod E. Tufte
Jon J. Jensen

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