Moody v. Sundley
2015 ND 204
| N.D. | 2015Background
- Larry and Janice Moody own the east 540 feet of the SE1/4 SW1/4 of Section 23; Dale Sundley owns adjacent property that includes a former school building and claimed interest in an area west of a fence that the Moodys dispute.
- Title history: School district and Nuell Herseth conveyed overlapping and ambiguous descriptions (1974 warranty deed describing "Battleview School and School Grounds," 1986 and 2001 quitclaim deeds describing the parcel as "except the east 540 feet").
- Moodys sued Sundley (2012) for trespass, alleging he placed modular homes, sheds, and a septic tank on their land; Sundley counterclaimed, asserting ownership by adverse possession (and alternatively under acquiescence).
- At bench trial, evidence focused on a fence/berm, mowing, and playground equipment said to have existed from the 1950s–2001; witness testimony conflicted about where improvements (playground, fence, parking) actually sat.
- District court quieted title in favor of the Moodys, dismissed Sundley’s adverse-possession counterclaim, and found Sundley failed to prove all elements of adverse possession by clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument (Moodys) | Defendant's Argument (Sundley) | Held |
|---|---|---|---|
| Whether Sundley acquired disputed land by adverse possession | Moodys contended Sundley did not meet the required elements and the Moodys are legal owners | Sundley argued his predecessors (school district or township) possessed the land continuously, openly, and exclusively under various statutes (N.D.C.C. §§ 28-01-08, 28-01-10, 47-06-03) and thus title passed to him | Court held Sundley failed to prove actual, visible, continuous, notorious, distinct, hostile, and exclusive possession by clear and convincing evidence; adverse-possession claim denied |
| Whether court needed to analyze each statutory theory separately | Moodys argued general adverse-possession analysis controls | Sundley argued the court should analyze his statutory theories (written instrument, color of title/tax payment, ordinary adverse possession) individually | Court ruled it was unnecessary to separately analyze each statute because Sundley failed to prove the fundamental elements common to all adverse-possession theories |
| Whether boundary was established by acquiescence (new boundary by long recognition) | Moodys maintained no acquiescence claim had been pleaded or tried | Sundley asserted the berm/fence had been recognized as boundary for 20+ years and should establish the line by acquiescence | Court declined to decide acquiescence: Sundley never pleaded it or moved to amend; evidence bearing on acquiescence overlapped adverse-possession claims and court did not err in refusing to treat the issue as tried by implied consent |
| Whether the appeal is frivolous warranting fees | Moodys requested fees under N.D.R.App.P. 38 | Sundley continued his arguments on appeal | Court held the appeal was not frivolous and denied attorney-fee request |
Key Cases Cited
- Gruebele v. Geringer, 640 N.W.2d 454 (N.D. 2002) (elements and burden of proof for adverse possession)
- Torgerson v. Rose, 339 N.W.2d 79 (N.D. 1983) (application of adverse-possession standards)
- Benson v. Taralseth, 382 N.W.2d 649 (N.D. 1986) (adverse possession under color-of-title/tax-payment statute requires standard elements)
- Simons v. Tancre, 321 N.W.2d 495 (N.D. 1982) (claimant must prove all elements of adverse possession even when statutory period met)
- Grandin v. Gardiner, 63 N.W.2d 128 (N.D. 1954) (necessity of proving actual possession)
- Fischer v. Berger, 710 N.W.2d 886 (N.D. 2006) (distinguishing acquiescence from adverse possession)
- Brown v. Brodell, 756 N.W.2d 779 (N.D. 2008) (requirements to establish boundary by acquiescence)