933 N.W.2d 84
N.D.2019Background
- Dispute over small triangular tracts (the “Tonneson triangle” and “Issendorf triangle”) and a platted roadway shown on a 1950 Larson’s Beach plat bordering Lake Metigoshe; parties are successors to neighboring lake lots.
- Plaintiffs and predecessors used the disputed area seasonally from the early 1960s: placing trailers, clearing brush, adding gravel, two storage sheds (1972, 2005), a well, and minor cement work; some wooded portions left natural for privacy.
- The 1950 plat showed a dedicated roadway that was never opened or used by the public; landowners later executed an easement for the roadway actually used (along the northern boundary).
- Plaintiffs sued in 2015 to quiet title, asserting adverse possession (and related doctrines); bench trial held April 2017.
- District court (Dec. 2017 / Mar. 2018) quieted title to plaintiffs based on adverse possession; defendants appealed. The court’s attempt to enter a “corrected judgment” after the notice of appeal prompted remand for reentry of corrected judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs acquired the Tonneson and Issendorf triangles and the platted roadway by adverse possession | Plaintiffs: long, visible, continuous, and exclusive use and improvements (trailers, sheds, well, gravel, clearing) satisfied adverse possession under N.D.C.C. §§ 28-01-10 & 28-01-11 | Defendants: plaintiffs’ acts were insufficient (minimal/seasonal, wooded area not cultivated, some acts postdate vacancy) and the platted roadway was public until formally vacated | Court affirmed: plaintiffs proved adverse possession—acts were actual, visible, continuous, notorious, distinct, hostile, and satisfied § 28-01-11(2) (usually cultivated or improved) |
| Whether an unopened/plat-dedicated roadway can be acquired by adverse possession before formal vacation | Plaintiffs: the platted roadway was an unaccepted offer to dedicate and never opened or accepted by public authorities, so it remained private and subject to adverse possession | Defendants: the plat dedication created a public right such that the statutory period could not run until the township vacated it | Held: an unaccepted/unopened platted dedication may remain private; because there was no acceptance or public action, the roadway was subject to adverse possession (Welsh principle applied) |
| Whether seasonal/recreational use and partial clearing meet the ‘‘continuous’’ and ‘‘cultivated/improved’’ elements | Plaintiffs: seasonal recreational use consistent with character of lake property, plus improvements (sheds, gravel, well) suffice when considered collectively | Defendants: seasonal and limited acts (e.g., occasional storage, leaving trees) do not meet the statutory standard | Held: continuity may be seasonal for recreational land; the combination of acts sufficed to satisfy continuity and § 28-01-11(2) (court’s credibility findings upheld) |
| Whether the district court could enter a corrected judgment after defendants filed a notice of appeal | Plaintiffs: sought costs and a corrected judgment per district court order | Defendants: challenged corrected judgment as entered after appeal | Held: trial court lost jurisdiction when appeal filed; the May 4, 2018 “corrected judgment” entered after the May 3 appeal was void for lack of jurisdiction; matter remanded for reentry of corrected findings/judgment regarding costs |
Key Cases Cited
- Smith v. Anderson, 144 N.W.2d 530 (N.D. 1966) (municipality cannot be divested of public streets by adverse possession absent abandonment or vacation)
- Welsh v. Monson, 79 N.W.2d 155 (N.D. 1956) (plat filing is an offer to dedicate; acceptance requires public action or use)
- James v. Griffin, 626 N.W.2d 704 (N.D. 2001) (tacking and acquiescence require continuous, single course of possession; governmental possession can interrupt the period)
- Gruebele v. Geringer, 640 N.W.2d 454 (N.D. 2002) (elements of adverse possession: actual, visible, continuous, notorious, distinct, hostile; burden is clear and convincing proof)
- Winnie Dev. LLLP v. Reveling, 907 N.W.2d 413 (N.D. 2018) (distinguishes statutory/common-law dedication frameworks and acceptance requirements)
- Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419 (S.D. 1980) (discusses adverse possession of wooded land and when partial cultivation/clearing supports a claim)