In the Supreme Court State of North Dakota

20180169 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT OCTOBER 4, 2018 STATE OF NORTH DAKOTA IN THE SUPREME COURT STATE OF NORTH DAKOTA

Teresa L. Larson, Janet F. Schelling, Supreme Court No. and Lynette A. Helgeson, 20180169

Plaintiffs and Appellees, vs. District Court No. 05-2015-CV-00145 Jon Tonneson, Mary Issendorf, in her personal capacity and in her capacity as the personal representative of the Estate PLAINTIFFS AND of Vesper Shirley, the Estate of Vesper APPELLEES’ BRIEF IN Shirley, and all other persons interested SUPPORT OF AFFIRMING either as heirs, creditors, or otherwise, THE DISTRICT COURT’S in the estates of the above-mentioned JUDGMENT persons or entities, and all other persons unknown, claiming any interest in or encumbrance upon the property described in the Complaint,

Defendants and Appellants,

APPEAL FROM THE BOTTINEAU COUNTY DISTRICT COURT’S MAY 4, 2018 JUDGMENT

James A. Teigland (ND ID 7895) FREMSTAD LAW FIRM P. O. Box 3143 Fargo, North Dakota 58108-3143 Phone: (701) 478-7620 E-Service: [email protected] ATTORNEYS FOR APPELLEES

[¶ 1] TABLE OF CONTENTS

Paragraph Number

Table of Contents ...... ¶ 1

Table of Authorities ...... ¶ 2

Statement of the Issues ...... ¶ 3

Statement of the Case ...... ¶ 6

Statement of Facts ...... ¶ 11

I. 1950s to 1970s ...... ¶ 14

II. 1970s to Present...... ¶ 22

III. Plaintiffs’ use, improvement, and maintenance of the Quiet Title Property summarized ...... ¶ 32

IV.The District Court’s findings ...... ¶ 40

Argument ...... ¶ 42

I. Whether the district court clearly erred when it concluded no public entity ever took possession of the Platted Roadway ...... ¶ 43

A. Standard of Review ...... ¶ 43

B. The district court reasonably concluded the Platted Roadway did not become a public right of way ...... ¶ 44

II. Whether the district court clearly erred when it concluded the Plaintiffs adversely possessed the Quiet Title Property...... ¶ 55

A. Standard of Review ...... ¶ 55

B. The district court did not err when it concluded the Plaintiffs usually cultivated

and improved the Quiet Title Property ...... ¶ 56

C. The district court did not err when it concluded the Plaintiffs have “actually occupied” the entire Quiet Title Property ...... ¶ 63

D. The district court did not err when it concluded the Plaintiffs have continuously occupied and usually cultivated and improved the Tonneson Triangle ...... ¶ 68

Conclusion ...... ¶ 74

Certificate of Compliance...... ¶ 76

Certificate of Service ...... ¶ 79

[¶ 2] TABLE OF AUTHORITIES

Cases Paragraph Number

Anderson v. Cold Spring Tungsten, Inc., 458 P.2d 756 (Colo. 1969) ...... ¶ 66

Benson v. Feland Bros. Properties, 2018 ND 29, 906 N.W.2d 98 ...... ¶¶ 55, 59, 64

Benson v. Taralseth, 382 N.W.2d 649 (N.D. 1986) ...... ¶¶ 57, 60

Booten v. Peterson, 47 Wash.2d 565, 288 P.2d 1084 (1955) ...... ¶ 72

Burckhardt v. Smith, 115 N.W.2d 540 (Wis. 1960) ...... ¶¶ 66, 72

Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984) ...... ¶ 72

City of Jamestown v. Miemietz, 95 N.W.2d 897, 902 (N.D. 1959) ...... ¶¶ 45, 46

City of Tonawanda v. Ellicott Creek Homeowners Ass’n, 86 A.D.2d 118, 449 N.Y.S.2d 116 (1982) ...... ¶ 61

Goss v. Trombly, 39 A.D.3d 1128 (N.Y. App. Div. 2007) ...... ¶ 61

Hayward v. Marker, 55 N.W.2d 143 (Mich. 1952) ...... ¶ 66

Holmquist v. King County, 328 P.3d 1000 (Wash. App. 2014) ...... ¶ 50

Howard v. Kunto, 3 Wn. App. 393, 477 P.2d 210 (1970) ...... ¶ 72

Ill. Steel Co. v. Jeka, 123 Wis. 419, 101 N.W. 399 (Wis. 1904) ...... ¶ 66

James v. Griffin, 2001 ND 90, 626 N.W.2d 704...... ¶¶ 52, 53

Jutting v. Hendrix, 606 N.W.2d 140 (S.D. 2000) ...... ¶ 61

Kay v. Biggs, 13 Ariz.App. 172, 475 P.2d 1 (1970) ...... ¶ 72

Laabs v. Bolger, 25 Wis.2d 17, 130 N.W.2d 270 (1964) ...... ¶ 61

Moore v. Musa, 198 So.2d 843 (Fla. 1967) ...... ¶ 66

Nechtow v. Brown, 369 Mich. 460, 120 N.W.2d 251 (1963) ...... ¶ 72

Savre v. Santoyo, 2015 ND 170, 865 N.W.2d 419 ...... ¶ 43

Schultz v. Dew, 564 N.W.2d 320 (S.D. 1997) ...... ¶ 61

Smith v. Hayden, 772 P.2d 47 (Colo. 1989) ...... ¶¶ 64, 66

Torgerson v. Rose, 339 N.W.2d 79 (N.D. 1983) ...... ¶ 60

Welsh v. Monson, 79 N.W.2d 155 (N.D. 1956) ...... ¶¶ 44, 47, 50, 51

Statutes

N.D.C.C. § 28-01-11 ...... ¶¶ 55, 56, 57, 60, 68

[¶ 3] STATEMENT OF THE ISSUES

[¶ 4] 1. Whether the district court clearly erred when it concluded no public entity ever took possession of the Platted Roadway.

[¶ 5] 2. Whether the district court clearly erred when it concluded the Plaintiffs adversely possessed the Quiet Title Property.

[¶ 6] STATEMENT OF THE CASE

[¶ 7] On December 11, 2015, Plaintiffs commenced this lawsuit against

Defendants. Sheriff’s Return, Doc. Id. #7. The Complaint requested title to lake property on Lake Metigoshe in Bottineau County (the “Property”) be quieted in

Plaintiffs as to Defendants’ claims, that Defendants set forth all of their adverse claims to the Property and that Defendants be decreed to have no estate or interest in, or lien or encumbrance upon the Property.

[¶ 8] On October 14, 2016, Plaintiffs moved to file an Amended Complaint that included claims for the doctrine of agreed boundaries, the doctrine of acquiescence, the doctrine of estoppel, and a claim for a prescriptive easement.

Notice of Mot. And Mot. to Amend Complaint, Doc. Id. #27-28. On January 11,

2017 the Court granted Plaintiffs Motion to Amend Complaint. Doc. Id. #52.

[¶ 9] On February 21, 2017, Plaintiff filed a Motion for Summary

Judgment. Notice of Motion and Mot. for Summary Judgment, Doc. Id. #69-70. On

April 24, 2017, the Court denied Plaintiffs Motion for Summary Judgment. Doc. Id.

#129.

[¶ 10] On April 27 and 28, 2017, the Court held a trial in this matter. On

December 28, 2017, the district court ordered a judgment quieting title to the

Property in the Plaintiffs. Doc. Id. #201. On March 2, 2018, the district court made its findings and ordered judgment be entered. Doc. Id. #217-218. On May 4, 2018, the Clerk issued a final judgment. Doc. Id. #235. On May 8, 2018, the Defendants filed a Notice of Appeal. Doc. Id. #236.

[¶ 11] STATEMENT OF FACTS

[¶ 12] This action involves real estate in and near the Larson’s Beach

Subdivision, in Section 11, of Roland Township, Bottineau County, North Dakota.

Specifically, the Plaintiffs successfully quieted title to a piece of real property described in Paragraph 2 of the Amended Complaint (App. 16-17), minus a 170 square foot parcel identified in Defendants’ Trial Exhibit 50 (App. 93) as “Parcel

4”, which Darrel and Connie Moberg (not named parties) may have a legal interest in. This property is hereinafter referred to as the “Quiet Title Property”. (See also

Doc. Id. ##202, 205, and 206, describing the final legal description of the Quiet Title

Property).

[¶ 13] For purposes of explanation, the Quiet Title Property contains four distinct tracts, which are depicted, and legally described, in Plaintiffs’ Exhibit 7

(App. 132): Tract A-1 (or the “Undisputed Property”), Tract B-1 (or the “Issendorf

Triangle”), the Triangle in Lot 11 (or the “Tonneson Triangle”), and the Platted

Roadway. The testimony and exhibits presented at trial establishes, irrefutably, the

Plaintiffs’ personal property, mobile homes, and other improvements, occupy the 6

Quiet Title Property. There is a road on the north-west side of the Quiet Title

Property, woods on the north and east side of the Quiet Title Property, and Lake

Metigoshe boarders the south side (See App. 94 (all directions approximate)).

I. 1950s to 1970s.

[¶ 14] Prior to 1950, Mensville Larson, Sr. owned significant amounts of lake property in Section 11, including all of the lake-property owned by the Parties to this action. (See App. 91; Tr. 25:6-111). In 1950, a road existed and still it exists to this day, in Larson’s Beach that all owners have used to access properties located in Larson’s Beach (the “Access Road”). (See Tr. 136:8-137:4; App. 166-67 (“the platted roadway … has never been used or opened” and “an access road has been used on the Grantors’ property [since 1950]…”)). The legal description of the

Access Road is in a May 12, 2014 Declaration of Easement. (App. 172-174).

[¶ 15] In 1950, Mensville Larson, Sr. prepared and recorded plat maps that included a roadway in Larson Beach (the “Platted Roadway”). (See App. 91). A legal description of the Platted Roadway is located on Page 1 and 2 of the July 25,

2014 Order Vacating and Discontinuing Platted Roadway. (App. 64).

[¶ 16] Even though the Access Road had been used prior to the 1950s, the legal description for the Platted Roadway did not match legal description of the

Access Road or match the method and manner owners in Larson Beach accessed

1 The trial transcripts are divided into two volumes. The first volume contains pages 8 through 279 of the trial transcripts and the second volume contains pages 287 through 400. Citations to the transcript will be in the following format: Tr. page number:line number. 7 their properties. (See App. 166-67 (“the platted roadway … has never been used or opened” and “an access road has been used on the Grantors’ property [since

1950]…”)). The Larson Beach owners have never used the Platted Roadway. (Tr.

341:5-10). Instead they, have always used the Access Road.

[¶ 17] On or about March 11, 1957, Lester and Ruth Convis purchased a piece of real property in Bottineau County on the shores of Lake Metigoshe. The purchase is evidenced by a deed dated March 11, 1957, which was filed on June 17,

1958 as Document Number 201638 in the Office of the Bottineau County Recorder.

(Doc. Id. #135). Lester and Ruth are the Plaintiffs’ grandparents. (Tr. 84:3-4). Ruth

Convis had a son named Norman Abernathy, who was the Plaintiffs’ father. (Tr.

84:1-4).

[¶ 18] In 1947, Gladys Handeland married Norman H. Abernathey. Gladys changed her name to Gladys Abernathy. Norman and Gladys had seven children

(Tr. 84:4-15), including Plaintiffs-Appellees Teresa Larson, who was born in 1954

(Tr. 83:20-21) and Janet Schelling who born in 1955 (See Tr. 237:18-22 (witness testifies that she was nine years old when her family brought in a mobile home in

1964)).

[¶ 19] The Plaintiffs’ testified they recalled, in 1964, Norman and Gladys

(Plaintiffs’ parents) moving a small mobile home onto the Property (the “1964

Mobile Home”). (Tr. 88:16:20; 237:18-22). Its general location is depicted in

Plaintiffs’ Exhibit 8. (App. 133). The 1964 Mobile Home encroached on portions of the Platted Roadway. (App. 133; see also Doc. Id. #191, Pg. 1, top left photo,

8 depicting the 1993 mobile home on the “SE corner of Tonneson Property”. The

1964 Mobile home was placed in a similar location to the 1993 mobile home). The

1964 Mobile Home rested on cinder blocks and on a bed of compacted gravel that was put in to make a sturdy base for the Mobile Home. (Tr. 95:6-8).

[¶ 20] Both Plaintiffs testified that they recall removing significant amounts of brush from the Quiet Title Property in the 1960s through the 1990s. (See, e.g.,

Tr. 88:19-20; 91:15-19; 112:4-17; 113:23-115:6; 191:14-192:19; 233:2-7; 237:18-

241:1; 242:20-243:6). Photographs and the inspection of the Quiet Title Property, now show a green, manicured, lawn. (App. 138; Doc. Id. #191; see also App.62-63

(describing lawn care)).

[¶ 21] On or about June 12, 1969, Norman and Gladys purchased a piece of real property in Bottineau County on the shores of Lake Metigoshe. The purchase is evidenced by a deed dated June 12, 1969, which was filed on March 2, 1970 as

Document Number 241086 in the Office of the Bottineau County Recorder. (Doc.

Id. ##136, 137).

II. 1970s to Present.

[¶ 22] In 1972, a storage shed was built on the Property (the “1972 Storage

Shed”). Its general location is depicted in Plaintiffs’ Exhibit 8. (App. 133). The 1972

Storage Shed encroached, and does to this day, on the Issendorf Triangle and, by a small amount, the Platted Roadway. (App. 133; see also Doc. Id. #191, Pg 1 bottom left photo depicting Janet’s Trailer on the “S. boundary [of the] Shirley property.”

Thus, anything to the north or west (such as the 1972 Storage Shed) of Janet’s trailer

9 would either be on the Issendorf Triangle or the Platted Roadway). The 1972

Storage Shed rests on cinder blocks. (Tr. 97:22-98:5). At this same time, a shelf for fire-wood was also placed onto the Property on the north side of the 1972 Storage

Shed. (Tr. 100:6-17). Later, in 1985, a cement slab was poured under the fire-wood shelving unit. (Tr. 100:18-25).

[¶ 23] In 1974, Norman and Gladys moved another mobile home onto the

Property (the “1974 Mobile Home”) (Tr. 92:24-93:3). Its general location is depicted in Plaintiffs’ Exhibit 8. (App. 133). The 1974 Mobile Home still sits in the same location, which encroaches on the Platted Roadway. (Doc. Id. #191, Pg. 1, bottom left photo depicting Janet’s Trailer on the “S. boundary [of the] Shirley property.”). The 1974 Mobile Home rests on cinder blocks, which are anchored to the ground. (Tr. 95:9-13). In the late 1970s, an enclosed mudroom with a poured concrete slab was poured on the North side of the 1974 Mobile Home. (Tr. 241:17-

242:3). Its general location is depicted in Plaintiffs’ Exhibit 8. (App. 133). The mudroom was removed in 2007 but the poured concrete remains. (Tr. 177:10-17;

242:4-13).

[¶ 24] In 1983, Norm and Gladys drilled a well on the Property (the “Well”)

(Tr. 101:2-13). Its general location is depicted in Plaintiffs’ Exhibit 8. (App. 133).

The Well encroaches on the Issendorf Triangle. (App. 133; see also Doc. Id. #191,

Pg. 1, bottom left photo depicting Janet’s Trailer on the “S. boundary [of the] Shirley property.” Thus, anything to the north or west (such as the Well) of Janet’s trailer would either be on the Issendorf Triangle or the Platted Roadway)). The Well

10 provided, for the first time, fresh, potable, water to the 1964 and 1974 Mobile

Homes. (Tr. 101:17-23). Also in 1983, the Quiet Title Property began receiving garbage collection. From 1983 to the present, the Plaintiffs and their family have placed garbage cans for weekly collection on the Tonneson Triangle. (Tr. 110:9-

16).

[¶ 25] In 1985, the Plaintiffs put in a fence near the Well. (Tr. 101:24-102:7).

It was improved in 2015. (Tr. 102:3-7) Its general location is depicted in Plaintiffs’

Exhibit 8. (App. 133).

[¶ 26] In 1993, Teri and Mike replaced the 1964 Mobile Home with a larger, more modern, mobile home (the “1993 Mobile Home”) (Tr. 94:23-95:3). Again, it rests on cinder blocks, which are anchored to the ground, on a bed of compacted gravel that was put in for the purpose of making a sturdy base for the Mobile Home.

(See Tr. 94:14-19; 95:9-13). Its general location is depicted in Plaintiffs’ Exhibit 8

(App. 133), which also compares the location of the 1993 Mobile Home to the 1964

Mobile Home. As is evident from the Exhibit, the 1964 Mobile Home encroached approximately the same amount onto Platted Roadway. (See also Doc. Id. #191, Pg

1 top left photo depicting 1993 Mobile Home on the “SE corner [of the] Tonneson property.”)

[¶ 27] In 2005, Teresa Larson and her husband Mike put in another storage shed (the “2005 Storage Shed”). It rests on cinder blocks, which are anchored to the ground. (Tr. 98:6-7). Its general location is depicted in Plaintiffs’ Exhibit 8. (App.

133). The 2005 Storage Shed encroaches in part on the Tonneson Triangle and the

Platted Roadway. (App. 133; Tr. 298:20-25).

[¶ 28] On or about February 27, 2009, the Plaintiffs purchased a piece of real property in Bottineau County on the shores of Lake Metigoshe (the “Plaintiffs’

Property”). The purchase is evidenced by a deed dated February 27, 2009, which was filed on May 21, 2009 as Document Number 380719 in the Office of the

Bottineau County Recorder. (App. 100). At the time of purchase, and at all times previously since the 1960s, the Plaintiffs believed that the Plaintiffs’ Property, which was described in the 2009 deed, was identical to the Quiet Title Property, which as was explained at trial, was possessed and used the Plaintiffs’ and their family, who are also their predecessors in title. (See Tr.117:3-22 (Ms. Larson’s reference to the “Solid Lines” refers to the Quiet title Action Boundary on Exhibit

50 (App. 94), which was enlarged as a demonstrative exhibit at trial)).

[¶ 29] On or about May 12, 2014, Jon Tonneson, Emmet Moberg, Darrell

Moberg, Mary Issendorf, and Charlo Shirley granted to all other owners in Larson’s

Beach an easement to “establish[] a permanent, non-exclusive access easement for ingress and egress from all properties in Larson’s Beach …” (the “Easement”).

(App. 166-67). This was completed because of the lack of correlation between the

Access Road and the Platted Roadway. (See Tr. 136:25-137:9; App. 166-67).

[¶ 30] The Easement legally formalized the Access Road, which, for as long as anyone can remember, had always been the method and manner owners in

Larson’s Beach had accessed their properties in Larson’s Beach. (Tr. 138:12-13;

341:5-10).

[¶ 31] On July 14, 2014, the Roland Township Zoning Board conferred and addressed, among other things, a petition to vacate the Platted Roadway. (App. 164).

A motion was made to approve the petition and the motion carried. (App. 164).

Subsequently, on July 25, 2014, the Board of Township Supervisors of Roland

Township executed an “Order Vacating and Discontinuing [the] Platted Roadway.”

The Platted Roadway was vacated because it was “unused.” (App. 164).

III. Plaintiffs’ use, improvement, and maintenance of the Quiet Title Property summarized.

[¶ 32] At all times relevant hereto, the Plaintiffs and five generations of their family, have used the entire Quiet Title Property as if it was their own. (Tr. 249:18-

22). Among other things, trailers were put on the Property in 1964, 1974, and 1993.

(App. 133). Storage sheds were permanently affixed to the Property in 1972 and

2005. (App. 133) A shelf for storing wood was put on the Property in 1972. (Tr.

100:4-17). A well that served the Plaintiffs’ mobile homes was drilled on the

Property in 1983. (Tr. 101:2-20). Trash cans have been stored on Tonneson’s

Triangle since 1983. (Tr. 110:9-16).

[¶ 33] In addition to fixtures referenced above, since the 1960s, the Plaintiffs and their family have used the Issendorf Triangle and the Platted Roadway to: gather firewood, store paddle boats, campers, park cars, store lake toys, boats, canoes, build campfires, play yard games, and sit in lawn chairs while they enjoyed alcoholic

13 beverages, among other things. (See, e.g.,Tr. 111:20-112:3; 244:21-245:23; 246:5-

12; 254:25-255:3). The Plaintiffs and their family have also mowed, raked leaves, picked up sticks, cut down dead trees, harvested firewood, and trimmed branches.

(See, e.g.,Tr. 110:9-12; 112:4-17; 191:16-18; 240:3-6).

[¶ 34] In addition to fixtures referenced above, since the 1960s, the Plaintiffs and their family have used the Tonneson Triangle to play yard games as described above and lit fireworks. (Tr. 110:9-12, 245:6-10). Since the 1960s, the Plaintiffs and their family have maintained the Tonneson Triangle by: hauling gravel to place on the gravel driveway every eight years or so, spraying for dandelions, mowing, raking leaves, harvested firewood, and trimmed branches. (See, e.g., Tr. 110:9-12;

111:24-112:3; 242:20-244:10).

[¶ 35] From about 1974 to 2000, the Plaintiffs would also use the Quiet Title

Property to go snowmobiling, ice fishing, and otherwise spend time enjoy winter activities. (Tr. 246:13-24). This also included some snow removal. (Tr. 247:16-19).

[¶ 36] In other words, the Plaintiffs and their families have used the entire

Quiet Title Property as their lake property. And they have used the Tonneson

Triangle, the Platted Roadway, and the Issendorf Triangle as their front yard. Since the 1960s, neither the Plaintiffs nor anyone else in their families have asked permission of anyone else to use any portions of the Quiet Title Property, nor have they sought the consent of others, nor have they shared the Quiet Title Property with anyone other than their family and friends. (See, e.g., Tr. 249:18-22).

[¶ 37] In other words, the Plaintiffs and their predecessors in title have been the only ones to possess the Quiet Title Property. Regarding the Tonneson Triangle, neither Defendant Jon Tonneson, nor his predecessors in title, have ever possessed it or acted as its owner. Regarding the Issendorf Triangle, neither Defendant Mary

Issendorf, nor her predecessors in title, have possessed it or acted as its owner. (Tr.

386:5-8). This is also true for the Platted Roadway. Plaintiffs’ possession of the

Quiet Title Property has been continuous and exclusive since the 1960s.

[¶ 38] Plaintiffs testified they learned about the competing claims of their neighbors in 2012 when Steve Langlie completed an initial survey of their property.

(Tr. 131:9-12).

[¶ 39] On December 11, 2015, the Plaintiffs filed this action and on January

21, 2016, Jon Tonneson and Mary Issendorf made an appearance in this matter

(Doc. Id. #9) with their first Answer being filed and served on February 12, 2016

(Doc. Id. #14).

IV. The District Court’s findings.

[¶ 40] On April 27 and 28, 2017, the district court held a trial. Based on the testimony and exhibits at trial, and an inspection of the Quiet Title Property, the district court summarized the facts as follows:

[¶22] 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 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 15

which was attached to Janet’s trailer, although the mud room is no longer there. [¶23] 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. [¶24] 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.

(App. 62-63).

[¶ 41] Based on these facts, the district court concluded “[i]t is the finding and order of the Court that the Plaintiffs have established all elements of adverse possession as to the subject property, and they are entitled to a Judgment quieting title to the subject property in the Plaintiffs.” (App. 70). The Defendants’ appeal followed.

[¶ 42] ARGUMENT

I. WHETHER THE DISTRICT COURT CLEARLY ERRED WHEN IT CONCLUDED NO PUBLIC ENTITY EVER TOOK POSSESSION OF THE PLATTED ROADWAY.

A. Standard of Review.

[¶ 43] In an appeal from a bench trial, the trial court’s findings of fact are reviewed under the clearly erroneous standard of review and its conclusions of law are fully reviewable. Savre v. Santoyo, 2015 ND 170, ¶ 8, 865 N.W.2d 419. 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. Id.

B. The district court reasonably concluded the Platted Roadway did not become a public right of way.

[¶ 44] The Defendants-Appellants’ first two arguments relate to the district court’s conclusion that the Platted Roadway “did not become a public right of way held by the township, but rather remained privately owned property, which accordingly may be the subject of an adverse possession claim.” (App. 66). The

Defendants first two arguments presume that the Platted Roadway was in fact public property or argue that it should be considered public property. See, e.g., Appellants’

Br. ¶¶ 19, 20 (“[t]he twenty-year period only began after the township vacated the dedicated public road. The twenty years have not elapsed, so the roadway, at least that portion that belongs to the Issendorf and Tonneson families, cannot be taken by the Plaintiffs …”) and ¶ 24 (“In [Welsh v. Monson, 79 N.W.2d 155 (N.D. 1956)]

17 there was no dedication to the public and thus, the street was not public but private and subject to the adjoining property owner’s ability to convey the same.”).

[¶ 45] Defendants are correct that, generally, adverse possession cannot be obtained against a public entity. This North Dakota rule is a product of case law – not statute. See City of Jamestown v. Miemietz, 95 N.W.2d 897, 902 (N.D. 1959)

(holding “[b]y the great weight of authority a municipality cannot be divested of the title of its streets held in trust for public use by adverse possession … We think this is a sound rule and adhere to it.”).

[¶ 46] This rule is inapplicable to this case for two reasons. First, unlike in

City of Jamestown, and subsequent cases with similar holdings, the Plaintiffs are not attempting to “divest title of a municipality.” Instead, they are simply attempting to “divest title” from private citizens. Thus, the general rule prohibiting adverse possession against a public entity does not apply here.

[¶ 47] Second, the Platted Roadway was never “held in trust for public use.”

In Welsh v. Monson, 79 N.W.2d 155 (N.D. 1956), the North Dakota Supreme Court stated “[The filing of a 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 use thereof or by some action of public authorities.” Id. at 158.

[¶ 48] The district court concluded the platted roadway “has never existed or been used by the public” and “there was no action by or on behalf of the public, or by the public authorities, to complete the offer by the owner to dedicate such roadway for public use.” (App. 65 – 66). 18

[¶ 49] Here, the undisputed evidence shows the plat was filed but the “public authorities” never used the Platted Roadway and never took any action regarding the Platted Roadway. The Platted Roadway has only ever existed on paper and was abandoned after years of no use.

[¶ 50] Thus, district court reasonably concluded, under Welsh, that the dedication of the road to a public entity was never complete and the Platted

Roadway was never public property. See also Holmquist v. King County, 328 P.3d

1000, 1003-04 (Wash. App. 2014) (stating the general rule that “platting of a public street presumptively creates an easement for public use” and a plat only dedicated the “use of the roads, not the ownership of the roads to the public” and “[w]hen the public holds only a right-of-way easement, fee title to the land underlying the street remains with the platter.”).

[¶ 51] The Appellants argue, however, that Welsh is inapplicable because

“[i]n Welsh there was no dedication to the public and thus, the street was not public but private …” Appellants’ Br. ¶ 24. However, this is an incorrect recitation of the

Welsh case. In reality, this Court stated in the fourth full paragraph on page 158

“[t]he plat of Monson’s Subdivision dedicated Avenue F … to public use for a street.” Welsh, 79 N.W.2d at 158 (emphasis added).

[¶ 52] The Appellants also argue the Appellees can only claim two years of possession (i.e. the time since the Platted Roadway was vacated) under James v.

Griffin, 2001 ND 90, 626 N.W.2d 704. The Appellants argue, under James, that the party claiming adverse possession could only claim “the requisite twenty-year 19 period only after the City relinquished its title. The same would apply here.”

Appellants’ Br. ¶ 19. However, this is an incorrect recitation of the James case.

[¶ 53] In James, the issue before this Court was an issue about tacking – not claiming adverse possession against a municipality. In James, this Court decided once prior acquiescence of a boundary has been destroyed by a nonacquiescent possession, the 20-year period for establishing acquiescence begins running anew. Id. at ¶¶ 14-15. In James, the nonacquiescent possession was a break in the chain of title. Id. at ¶¶ 9, 15. Because there was a break in the chain of title during the 20 years preceding the commencement of the action, possession was not continuous, and therefore, the claimant did not hold the property adversely for the statutory period. Id. at ¶ 15. In James, no one was trying to claim adverse possession against a municipality or any of the municipality’s successors. Id at ¶ 6. Instead, the

Plaintiff-Appellant (i.e. James), who was attempting to quiet title under the doctrine of acquiescence, was required to use the municipality’s occupation as part of his twenty-year possession period. Id. Ultimately, James was unable to show the municipality recognized a mutual boundary with the Defendants-Appellees and his claim was dismissed. Id. at ¶ 1. Thus, James does not, in any way, support the

Defendants’ proposition that Plaintiffs’ adverse possession period could only begin to run against the Platted Roadway after the Platted Roadway was vacated.

[¶ 54] The Defendants have never cited to any authority to support their position that a litigant cannot claim adverse possession on property dedicated for public use, but never used, and that is abandoned by the relevant municipality after

20 decades of no use. Here, the district court reasonably concluded the Platted

Roadway “did not become a public right of way held by the township, but rather remained privately owned property, which accordingly may be the subject of an adverse possession claim.” Therefore, this Court must affirm the district court’s judgment.

II. WHETHER THE DISTRICT COURT CLEARLY ERRED WHEN IT CONCLUDED THE PLAINTIFFS ADVERSELY POSSESSED THE QUIET TITLE PROPERTY.

A. Standard of Review.

[¶ 55] Whether there has been an adverse possession is a question of fact, which will not be reversed on appeal unless it is clearly erroneous. Benson v. Feland

Bros. Properties, 2018 ND 29, ¶ 15, 906 N.W.2d 98 (citations omitted). 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.

Id. Unless a person claiming adverse possession can claim title upon a written interest, or upon a judgment or decree, “the 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.”

N.D.C.C. § 28-01-11. Here, the Appellees claimed adverse possession under

N.D.C.C. § 28-01-11 and specifically subsection (2). See App. 64, 66.

B. The district court did not err when it concluded the Plaintiffs usually cultivated and improved the Quiet Title Property.

[¶ 56] The Defendants’ third argument is that none of the Plaintiffs’ use, occupation, and/or improvements to the Quiet Title Property satisfy the statutory requirements of N.D.C.C. § 28-01-11. See Appellants’ Br. ¶ 26 (“[t]he placing of recreational equipment on the property when not in use is not a substantial enclosure, not cultivation of the property and does not improve the property in any manner. Likewise, the placement of a small shed cannot be … a substantial enclosure.”).

[¶ 57] The district court made the following conclusions regarding N.D.C.C.

§ 28-01-11:

[¶ 31] One of the main issues to be decided in this case is whether the Plaintiffs’ use and occupation of the property has resulted in the property being “usually cultivated or improved” N.D.C.C. § 28-01-11(2). … The conduct of the Plaintiffs and their families with regard to this property, as summarized in Paragraphs 22 – 24 above, has been more than ordinary care and maintenance of the property. They have placed trailers on the property; they have cleared trees and brush; they have added sheds to the property; they have added gravel, both as a base for the trailer houses and to maintain and improve the roadway into the property; they have poured cement for a mudroom on one trailer, as well as for a base for the firewood shelf; and a well has been added to the property. While there has not been cultivation of this property, in the agricultural sense of the word, the subject property has been improved by the actions of the Plaintiffs and their families.

[¶ 32] The clearing of brush and trees, adding gravel to the property, pouring cement slabs on the property is considered to be acts of usual cultivation, considering the nature and character of this lake property. This conduct is certainly more than simple maintenance and lawn care. North Dakota law has

been largely silent on what constitutes “usually cultivated or improved” under N.D.C.C. § 28-01-11(2). However, in Benson v. Taralseth, 382 N.W.2d 649, 653 (N.D. 1986), the North Dakota Supreme Court seemed to consider the nature and character of the lake property involved in that case …

[¶ 33] The Plaintiffs have also presented a number of cases from other jurisdictions that hold a Court should consider the nature and character of the subject property when determining what constitutes “usually cultivated or improved.” This Court finds the holding Benson, the cases cited by Plaintiffs, and the plane language of N.D.C.C. § 28-01-11(2), that this Court should consider the nature and character of the subject property when determining what constitutes “usually cultivated or improved.” The Court therefore finds that the actions of the Plaintiffs and their families with regard to this property have resulted in improvements to the subject property as well as usual cultivation, considering the nature and character of the property, thereby meeting the statutory criteria of N.D.C.C. § 28-01-11(2).

(App. 66, 67).

[¶ 58] The Plaintiffs’ use, occupation, and/or improvements to the Quiet

Title Property upon which the district court relied (i.e. placing trailers, clearing trees and brush, adding storage sheds, adding gravel for a road and as a base for the trailers, building a mudroom, building a firewood shelf, etc.), is consistent with the types of use, occupation, and/or improvements this Court, and courts across the

United States, have relied upon when quieting title in adverse possession cases.

[¶ 59] For example, in Benson v. Feland Brothers Properties, 2018 ND 29,

906 N.W.2d 98, this Court affirmed a district court’s judgment quieting title to property on Lake Metigoshe under the doctrine of adverse possession. Id. at ¶ 1. In

Feland Brothers, the Defendants, or their predecessors in title, built a stone wall and

23 fire pit, drilled and used a well, used the yard, mowed the lawn, owned a dock on the shore, placed a picnic table on the disputed property, moved a paddle boat alongside the dock, and parked a mobile home trailer on part of the land. Id. at ¶ 16.

[¶ 60] Here, the Plaintiffs’ use of the Quiet Title Property is similar to the

Feland Brothers’ use of their property and therefore, this district court did not err when it concluded the Plaintiffs use and occupation constituted “usual cultivation and improvements” under N.D.C.C. § 28-01-11. See also Benson v. Taralseth, 382

N.W.2d 649, 653 (N.D. 1986) (the construction of lake cabins was sufficient to establish adverse possession); and Torgerson v. Rose, 339 N.W.2d 79, 85 (N.D.

1983) (Raising crops, executing two oil leases, and granting a wet lands easement to the U.S. government over 49 years established adverse possession.).

[¶ 61] Furthermore, the district court’s conclusions were consistent with other state’s interpretations of similar statutory provisions. See, e.g., Laabs v.

Bolger, 25 Wis.2d 17, 23-24, 130 N.W.2d 270 (1964) (holding applying fertilizer and planting grass in disputed area between two lakes lots, planting trees along boundary line and consistently mowing were sufficient to establish “usual cultivation or improvement”); Schultz v. Dew, 564 N.W.2d 320, 323-24 (S.D. 1997)

(holding planting trees, cleaning debris, and mowing constituted “cultivation” and putting gravel over surface of driveway, upgrading driveway to asphalt, and landscaping constituted “improvements” for purposes of adverse possession claim);

Jutting v. Hendrix, 606 N.W.2d 140, 141-42 (S.D. 2000) (holding planting two trees, mowing lawn, and landscaping work constituted “usual cultivation and

24 improvements”); City of Tonawanda v. Ellicott Creek Homeowners Ass’n, 86

A.D.2d 118, 120, 449 N.Y.S.2d 116 (1982) (holding maintenance of creekfront by mowing grass and planting trees was sufficient to establish “usual cultivation or improvement” in light of the of the character, condition, location, and potential uses of the property); and Goss v. Trombly, 39 A.D.3d 1128, 1130 (N.Y. App. Div. 2007)

(holding the regular plowing of a driveway, scraping of ice, mowing grass alongside it, trimming trees and hauling in gravel constitute usual cultivation and improvement because it was “consistent with the nature and use of [the property] as a driveway”).

[¶ 62] Here, the district court rationally and reasonably considered the character, location, and ordinary use of the Quiet Title Property and concluded the

Plaintiffs’ occupation and use of the Quiet Title Property constituted “usual cultivation and improvements.” Therefore, this Court must affirm the district court’s judgment.

C. The district court did not err when it concluded the Plaintiffs have “actually occupied” the entire Quiet Title Property.

[¶ 63] The Defendants argue throughout their brief that any relief granted to

Plaintiffs must be limited to areas of physical encroachment. See, e.g., Appellants’

Br. ¶ 29 (“[t]he trial court is still in error. The trial court did not grant adverse possession for just the area of the shed, but the entire claimed area by the Abernathys

… The only area that could have been granted to the Abernathys was the area of the shed.”); ¶ 31 (“[t]he tree brush are was not used by the Abernathys and apparently

25 the usage of the trees for protection and privacy cannot be in anyway considered visible, continuous, notorious and distinct.”); and ¶ 35 (“only those portion actually occupied by the claimant and no other can be taken by adverse possession”).

[¶ 64] The extent of actual occupancy is a question of fact for the trial court to determine. Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989); Benson, 2018 ND 29,

¶ 15, 906 N.W.2d 98 (“adverse possession is a question of fact”). The district court made the following conclusions regarding the Plaintiffs’ physical occupation of the

Quiet Title Property:

[¶ 24] … 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. …

[¶ 31] … [T]he subject property has been improved by the actions of the Plaintiffs and their families. …

[¶ 33] … The Court therefore finds that the actions of the Plaintiffs and their families with regard to this property have resulted in improvements to the subject property as well as usual cultivation, considering the nature and character of the property[.] …

[¶ 34] … From the testimony and exhibits, the Plaintiffs and their families have been in actual possession of the property from the 1960’s to the present. …

[¶ 37] The Court earlier acknowledged that portions of the Issendorf triangle remain in its naturally wooded state, and there has not been any clearing or improvements of that property. The Defendants suggest that if the Court finds adverse possession, it may only find adverse possession applicable to those specific square feet of real estate actually possessed or improved; hence it cannot find

adverse possession to the wooded area in the Issendorf triangle. The Court rejects such a narrow decision in this matter. The Defendant Mary Issendorf discussed this property being kept in its natural condition when purchased by her parents. The Plaintiffs also indicated that they did not clear or remove brush from this area, as it was a natural barrier to the access road to the property and other properties in the area. While the Plaintiffs improved and manipulated the real estate to best serve as a recreational property, so did they choose not to disturb the natural condition of that part of the property. That wooded area has been used and possessed by the Plaintiffs and their families since the 1960’s, and the maintenance of it in its natural condition provided the Plaintiffs’ privacy from a common roadway, to their enhanced enjoyment of the property. Therefore, the Court finds that portion of the property has also been adversely possessed by the Plaintiffs.

(App. 63, 66, 67, and 69) (emphasis added).

[¶ 65] Here, the Defendants have not cited to any authority from North

Dakota, or any other state, to support the proposition that relief in an eminent domain proceeding is limited to the square feet that are physically intruded upon.

[¶ 66] Contrary to the Defendants’ argument, Courts uniformly hold the exact opposite. See, e.g., Ill. Steel Co. v. Jeka, 123 Wis. 419, 101 N.W. 399, 402

(Wis. 1904) (describing the argument that “adverse possession … must necessarily be characterized by physical, constant visible occupancy by improvement of every part of the premises” as a “delusion” and instead examining the ordinary, customary, or usual use of the property); Hayward v. Marker, 55 N.W.2d 143 (Mich. 1952)

(affirming adverse possession finding despite claimant not actually dwelling on property because she planted flowers and trees, trimmed and removed dead branches from trees, built a road, cleared underbrush, shored up banks of lake, and hosted picnics, which was consistent “with the character of the property”);

Burckhardt v. Smith, 115 N.W.2d 540 (Wis. 1960) (holding “[a]ctual occupancy is not limited to structural encroachment which is common but is not the only physical characteristic of possession. Actual occupancy means the ordinary use of which the land is capable and such as an owner would make of it.”); Moore v. Musa, 198 So.2d

843, 848 (Fla. 1967) (holding that where claimant planted trees, shrubberies, and flowers and maintained the same on a 9 feet by 12 feet strip of property was sufficient to establish “actual possession” because it was a “use appropriate to the character and location of the property.”); Anderson v. Cold Spring Tungsten, Inc.,

458 P.2d 756 (Colo. 1969) (trial court found claimant was only entitled to the property occupied by his cabin and not to the land upon which the cabin was situated, Colorado Supreme Court reversed and held “actual occupancy is not limited to structural encroachment” and remanded to the trial court for determination of the boundaries of the property); and Smith v. Hayden, 772 P.2d

47, 52 (Colo. 1989) (stating “[t]he extent of actual occupancy is a question of fact for the trial court to determine. In arriving at this determination, the court should consider that adverse possession by actual occupancy … does not require constant, visible occupancy or physical improvements on every square foot of the parcel claimed.”).

[¶ 67] Here, the district court’s conclusion that Plaintiffs’ used and occupied the entire Quiet Title Property was supported by the evidence and it was appropriate for the district court to consider the character, location, and ordinary use of the property. Therefore, this Court must affirm the district court’s judgment.

D. The district court did not err when it concluded the Plaintiffs have continuously occupied and usually cultivated and improved the Tonneson Triangle.

[¶ 68] The Defendants’ final argument is that the trash can stored by the

Plaintiffs on the Tonneson Triangle is not enough to meet the improvement or usual cultivation requirement in N.D.C.C. § 28-01-11 and the Plaintiffs’ occupation of the

Tonneson Triangle was not continuous. See Appellants’ Br. ¶ 37 (“[t]here was no improvement to Tonneson or Abernathy having the cans placed on the property”) and ¶ 40 (“[the Plaintiffs’] usage of the Tonneson land was not continuous”).

[¶ 69] This argument is premised on Defendants’ previous arguments regarding actual occupation (i.e. adverse possession should be limited to the areas of physical encroachment). The Defendants argue that the only physical encroachment on the Tonneson triangle is a garbage can and a shed installed 2005.

And therefore, the Defendants’ argue the Plaintiffs cannot establish adverse possession of the Tonneson Triangle.

[¶ 70] However, as argued supra at ¶¶ 63-67, the Defendants’ argument regarding actual occupation is uniformly reject by Courts. And therefore, this argument must also fail.

[¶ 71] Furthermore, the Plaintiffs need not establish “physical occupation.”

Instead, they must establish “usual cultivation or improvement.” The district court recognized this and made the following conclusions regarding Plaintiffs’ occupation of the Tonneson Triangle and whether such occupation has been continuous:

[¶23] … [T]here 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. …

[¶24] … The Plaintiffs and their families have used the subject property, including … the Tonneson triangle … as if it were their own property, since the early 1960’s to the present. …

[¶31] … The conduct of the Plaintiffs and their families with regard to this property … has been more than ordinary care and maintenance of the property. They have placed trailers on the property; they have cleared trees and brush; they have added sheds to the property; they have added gravel, both as a base for the trailer houses and to maintain and improve the roadway into the property … the subject property has been improved by the actions of the Plaintiffs and their families. …

[¶32] … The clearing of brush and trees, adding gravel to the property … is considered to be acts of usual cultivation, considering the nature and character of this lake property. This conduct is certainly more than simple maintenance and lawn care.

[¶35] The Court also determines that the Plaintiffs’ possession of the property has been continuous. The Defendants argue that because the property was largely used on a seasonal basis, the element of continuous usage cannot be met. The Plaintiffs counter by citing cases from other jurisdictions, which take into consideration the “nature and condition of the property”, such as seasonal usage as a summer home for recreational purposes. The Court does not believe it can simply turn a blind eye to the type of property at issue here, and recreational property in North Dakota in general. There are many properties that are used and owned by individuals for recreational purposes, and not occupied as a primary, year-round residence. The Plaintiffs have used this property every summer since the early 1960’s, and there was testimony that for a large amount of time, it was also used in the winter. The Court is not persuaded by the argument that by closing up the trailer homes in the fall, only to reopen the trailer homes and utilize the

property the following spring, destroys the continuous possession of the property. The Plaintiffs and their families have used this property as recreational property continuously for the past 50 plus years, used for the enjoyment and relaxation of the Plaintiffs year after year.

(App. 62, 63, 66, and 68).

[¶ 72] Defendants’ argument that the Plaintiffs’ have not continuously occupied the Tonneson Triangle because they “assume” the trash cans were put away in August or September “when the summer lake usage ended” is meritless.

Similar arguments are uniformly rejected by courts across the country. See, e.g.,

Howard v. Kunto, 3 Wn. App. 393, 397, 477 P.2d 210 (1970), overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984) (holding a claim of adverse possession is not defeated because a summer beach home is used only during the summer months because to hold otherwise “is to completely ignore the nature and condition of the property”); Kay v. Biggs, 13 Ariz.App. 172, 175-76,

475 P.2d 1 (1970) (holding 2 to 3 weeks of physical presence at a summer home a year constitute “continuous peaceable possession”); Nechtow v. Brown, 369 Mich.

460, 462, 120 N.W.2d 251 (1963) (holding “regular use of property as a summer home and for recreational purposes is sufficient basis for a claim of adverse possession”); Booten v. Peterson, 47 Wash.2d 565, 568-69, 288 P.2d 1084 (1955)

(holding use of disputed property as a “beach place and summer home” was sufficient to satisfy the continuous element of adverse possession); and Burkhardt v. Smith, 17 Wis.2d 132, 139, 115 N.W.2d 540 (1962) (holding the use of a

31 summertime cabin was sufficient to establish the continuous use requirement of adverse possession). There are dozens, if not hundreds, of cases that hold the same.

[¶ 73] Here, the district court rationally considered the character, location, and ordinary use of the Tonneson Triangle and the entire Quiet Title Property when it concluded the Plaintiffs had continually occupied, improved, and cultivated the same. Therefore, this Court must affirm the district court’s judgment.

[¶ 74] CONCLUSION

[¶ 75] This Court must affirm the district court’s judgment because the

Plaintiffs’ occupation, improvements, maintenance, and cultivation of the Quiet

Title Property is consistent with the character, location, and ordinary use of lake property on Lake Metigoshe.

Dated: October 4, 2018. /s/ James Teigland James A. Teigland (ND # 07895) FREMSTAD LAW FIRM PO Box 3143 Fargo, ND 58108-3143 Phone: (701) 478-7620 [email protected] ATTORNEYS FOR APPELLEES

[¶ 76] CERTIFICATE OF COMPLIANCE

[¶ 77] The undersigned hereby certifies that said brief complies with

N.D.R.App.P. 32 in that the brief was prepared with Times New Roman, size 13- point font, proportional typeface and that the total number of words does not exceed

8,000 from the portion of the brief entitled “Statement of Issues” through the signature block. The word count was calculated using “Microsoft Word” word processing software, which also counts abbreviations as words.

[¶ 78] Dated, October 4, 2018.

/s/ James Teigland James A. Teigland (ND # 07895)

[¶ 79] CERTIFICATE OF SERVICE

[¶ 80] I, James A. Teigland, an attorney licensed to practice law in this state, hereby certifies that on the date above, this document was served on all individual

Parties. Service was completed by sending true and correct copies to the following address(es): Michael S. McIntee – [email protected]

/s/ James Teigland James A. Teigland (ND # 07895)