(Not a)
Learned Treatise on Adverse Possession

It was a dark and stormy night. A scream echoed down the corridors of the castle. Aaaiigh!!!  The lord of the manor had just been served with a Complaint asserting adverse possession of beloved Blackacre. He hoped his lawyer knew adverse possession from a prescriptive easement.

Some of us who were awake during law school can tick off the five elements that must be proven in order to establish the claim of adverse possession. I, however, had to look them up again to be sure. One of the fundamental truisms of law: Possession is nine tenths of the law; but in a lawsuit claiming title by adverse possession, possession is ten tenths; but what kind of possession gets you over the moat and into the courtyard? The possession must be actual, open, continuous, hostile and exclusive. However, if you try to explain what each element means, the audience may doze off in mid sentence.

We covered it in first year Real Property Law, but may not have thought deeply about it since. It's weigh too much heavy lifting. (Spell check doesn't even notice my pun in the last sentence).

I get the chance to litigate adverse possession and boundary disputes from time to time, and actually tried one case for over a week to a jury involving gentrified farm land; thus, we had the opportunity to work out jury instructions explaining the five elements to lay people. (They are not covered in JIG, so don't even bother).

To prevail in an adverse possession claim, the disseizor must show by clear and convincing evidence hostile, actual, open, continuous and exclusive possession of the land for the 15-year period required by our statute of limitations, Minn.Stat. § 541.02. Ehle v. Prosser, 293 Minn. 183, 197 N.W.2d 458 (1972).

Grubb v. State, 433 N.W.2d 915, 917-918 (Minn.App. 1988).
The preceding quotation is an illustration of one of the things I most enjoy in the practice of law. When writing, judges and lawyers use the most arcane and obscure terms possible. A classic example is that of the "disseizor". However, the meaning is actually quite simple if you take the phonetic approach, i.e., the "disseizor" is da guy trying da seize da property. I consider it good planning on my part to have taken four years of Latin in high school. Not a day goes by when I don't have the opportunity to make idle Latin chit chat-"Boyabus loveabus sweet girliorum, Papabus kickabus out of the doorum"; "Mea culpa, mea culpa, mea maxima culpa" and so forth.

Adverse possession conceptually can be seen as simply a statute of limitation. After fifteen years, the ousted fee owner may no longer recover possession of the land; and the possessor has seized the title. He can register his title in our Torrens system; but conversely, once registered, an owner cannot lose title to Torrens property by way of adverse possession (Minn. Stat. 508.02); Marsh v. Carlson, 390 N.W.2d 897, 900 (Minn.App. 1986); one of the many virtues of registering one's property.
The applicable statute is Minn. Stat. 541.02. The central 15 year rule is recited in this excerpt:

541.02. Recovery of real estate, 15 years

No action for the recovery of real estate or the possession thereof shall be maintained unless it appears that the plaintiff, the plaintiff's ancestor, predecessor, or grantor, was seized or possessed of the premises in question within 15 years before the beginning of the action.

What follows is an utterly dry description of each individual element of adverse possession intended to be devoid of any humor whatsoever.

OPEN

The possession must be open. Open means open but not necessarily visible, see? I swear. Even though the possession cannot be viewed from the road, it still may be Open (with a capital O). To illustrate, I cite the following passage from our Court of Appeals:

The Hickersons argue that the improvements were not "open, notorious, and hostile" because the improvements may not have been visible to their predecessors in title from adjoining Green Gables Road. We construe "open," however, to mean visible from the surroundings, or visible to one seeking to exercise his rights.

Hickerson v. Bender, 500 N.W.2d 169, 171 (Minn.App. 1993). Therefore, in seeking to establish title by adverse possession, it is entirely appropriate to lay in the weeds as long as you do it openly. You had better tell your clients to "beat the bushes" as part of their property inspection. Someone may "openly" have a still out in the woods adversely possessing part of their fiefdom.

EXCLUSIVE

I can have it; you can't. Neither can anyone else. People, this is not complicated. However, if the lady lets everybody use her property along with me, I don't have exclusive possession. If I plant my fanny on the public beach at Lake Harriet with my little picnic basket and park there for 15 years, I will burn in summer and freeze in winter but will be no closer to perfecting my claim due to all of the other pesky sun worshippers who use the beach in common with me. (Those of you thinking that I cannot adversely possess public property anyway are far too smart for this article and should skip to the personals).

HOSTILE

You have to be hostile, but you can still be civil. Let that be a lesson to all younger lawyers out there in TV land. The court says that hostility does not mean you have to prove personal animosity but try telling that to any litigant. They'll have no trouble proving up the personal animosity, too.

...the requirement of 'hostile' possession does not refer to personal animosity or physical overt acts against the record owner of the property but to the intention of the disseizor to claim exclusive ownership as against the world and to treat the property in dispute in a manner generally associated with the ownership of similar type property in the particular area involved.

Norgong v. Whitehead, 225 Minn. 379, 31 N.W.2d 267 (1948); Thomas v. Mrkonich, 247 Minn. 481, 78 N.W.2d 386 (1956); Ehle v. Prosser, 197 N.W.2d 458, 462, 293 Minn. 183, (Minn. 1972). So does this mean you must prove intent, a sort of real property mens rea? Oh, there goes that Latin again. Read on.

If the original entry is with permission, there is no adverse possession unless the consensual (ooh la la) nature is somehow overtly changed. Junes v. Junes, 196 N.W. 806, 158 Minn. 53, (Minn. 1924). (The last sentence could be substituted in an article concerning developments in the law of criminal sexual conduct.)

CONTINUOUS

That possession must be continuous seems fairly obvious but there are a couple nuances. It must be uninterrupted in any way.
Application of Stein, 99 N.W.2d 204, 256 Minn. 485, (Minn. 1959). 1904. He must "keep his flag flying", Romans v. Nadler, 14 N.W.2d 482, 485, 217 Minn. 174,, (Minn. 1944). An interruption of possession is fatal to the adverse possessor's claim, Simms v. William Simms Hardware, 12 N.W.2d 783, 785, 216 Minn. 283,, (Minn. 1943). Further, though the possession is subsequently interrupted, if it had continued for 15 years before the period of interruption, title has ripened and should be established.

To maintain a title, acquired by adverse possession, it is not necessary to continue the adverse possession beyond the time when title is acquired. The title once acquired is a new title; a legal title though not a record title is not lost by a cessation of possession, and continued possession is not necessary to maintain it.

Fredericksen v. Henke, 209 N.W.257, 259, 167 Minn. 356 (Minn. 1926).

ACTUAL

The claimant must be in actual possession of the real property for the 15 year period in order to claim it as his'n. The definition of actual possession may tend to blend over into the definition of continuous possession, but it has to do with the nature and character of the occupancy and use the property may be put to. The Supreme Court held that the fact that the owner of a property who was trying to defeat a recorded easement via adverse possession had padlocked a gate across the easement did not support a claim of adverse possession where there was no continuous locking, the purpose of locking the gate was to keep hunters off and use of a cartway by the owner as a turn-around for farm machinery also was not inconsistent with dominant estate owner's enjoyment of the easement; Gandy Co. v. Freuer, 313 N.W.2d 576 (Minn. 1981). Got that? His possession weren't actual enough.

Regular mowing and seeding of lakeshore property may constitute actual possession but mowing only a few times per year was not sufficient in Nash v. Mahan, 377 N.W.2d 56,(Minn.App. 1985). I doubt I could establish adverse possession at my house based either on my mowing or my kids. Occasional and sporadic use is insufficient to establish adverse possession although appropriate use will depend on the character of the property. Stanard, supra.

SOME EXCEPTIONS
THE WILD AND NATURAL EXCEPTION

Not a new hair product or web site, e.g. (www.wildandnatural.com). If property is left in its wild and natural state, although you have otherwise adversely possessed it, you don't acquire title and can be excluded; Nash v. Mahan, 377 N.W.2d 56, 58 (Minn.App. 1985); LeeJoice v. Harris, 404 N.W.2d 4, 6 (Minn.App. 1987).

THE PUBLIC LAND EXCEPTION

One of my neighbors mows adjoining park land making it appear to be part of his back yard; another routinely plants her garden in the park. However, it is axiomatic that they may not adversely possess government land. It doesn't matter whether the land is federal, state or municipal.
Statute precluding adverse possession against land dedicated or appropriated to public use does not distinguish between state and municipal lands, nor between lands held in proprietary or governmental capacity. M.S.A. Sec. 541.01.

Fischer v. City of Sauk Rapids 325 N.W.2d 816, (Minn. 1982). I was really crushed to discover that you also may not adversely possess a drainage ditch. McCuen v. McCarvel, 263 N.W.2d 64 (Minn.1978). Further, one cannot adversely possess a school property though I know some parents who wouldn't care if you took their kids as part of the bargain. Murtaugh v. Chicago, M. & St. P. Ry. Co., 102 Minn. 52, 112 N.W. 860 (1907).

EXCEPTIONAL EXCEPTIONS

However, there are always some exceptions to the exceptions. Where there is a legitimate dispute over the location of a municipal boundary and a compromise is reached, the city may later be forced to honor that boundary. Magnuson v. City of White Bear Lake, 203 N.W.2d 848, 295 Minn. 193, (Minn. 1973). Further, if title ripened through adverse possession before a municipality's purported acquisition, I believe that title is good. Cf. Application of Stein, supra; I suggest you cite "Olson on Titles", Lawjokes Vol.I.

PAYMENT OF REAL ESTATE TAXES

The payment of real estate taxes is normally not dispositive for either party. The statute requires the party claiming adverse possession to have paid the real estate taxes on the land claimed but only in very limited circumstances. The parcel in question must be separately assessed. The rule still won't apply if the claim of adverse possession involves a boundary line dispute or involves property located between a government or platted line, and a new line created by the adverse possession (which also sounds a lot like a boundary line dispute). See also, Mellenthin v. Brantman, 211 Minn. 336, 1 N.W.2d 141 (1941); Skala v. Lindbeck, 171 Minn. 410, 214 N.W. 271 (1927); Riley v. Kump, 170 Minn. 58, 212 N.W. 13 (1927); Fredericksen v. Henke, 167 Minn. 356, 209 N.W. 257, 46 A.L.R. 785 (1926); Kelley v. Green, 142 Minn. 82, 170 N.W. 922 (1919).

The example where non payment of the real estate taxes applies to defeat a claim is found in Grubb v. State, 433 N.W.2d 915, 919 (Minn.App. 1988):

Where one landowner adversely possesses approximately 13 acres of his neighbor's 16-acre parcel, the parcel, not merely the boundary line, is at stake. Thus, the boundary-line exception to the statutory tax payment requirement is inapplicable to the facts of this case.

In the exceptional circumstance where the requirement of payment of the taxes does apply, the claimant must have paid them for at least five consecutive years, 541.02. In the instances where you defend in front of a jury, you still would want to put in evidence that the villain trying to take away your client's land without paying anything for it has also not paid the real estate taxes on the parcel while your virtuous (but stupid) client has.  Plaintiffs may try to object on relevance grounds but it probably comes in.

BURDEN OF PROOF

Maybe it's important, maybe it's not; you be the judge (and jury). The burden of proof to establish adverse possession is by clear and convincing evidence; more than a mere preponderance and less than proof beyond a reasonable doubt. I've told a jury what clear and convincing means and listened to my adversaries do the same. "It must be clear, and it must be convincing!" How's that?! I'm unconvinced that a jury cares much. In either case, they want to be convinced in order to find for you.

I think the burden of proof is of greater significance in a trial to the court since a Judge or Examiner of Titles will generally care more about the weight of the evidence than a jury may. In one jury trial I conducted, the three lawyers spent quite a bit of time emphasizing the meaning in closing arguments but I am utterly unconvinced the jury cared. Obviously as a defendant you will want to remind them early and often, however.

The case law also states that the evidence must be strictly construed and amount to clear and positive proof before title by adverse possession will be granted. Stanard v. Urban, 453 N.W.2d 733, 735 (Minn.App. 1990).

ACKNOWLEDGEMENT OF RIGHT DEFEATS CLAIM

Even where someone purports to adversely possess property, if he acknowledges the fee owner's rights at some point during the 15 year period, his claim can be lost. In Stanard, the possessing party offered at one time to buy the property from the fee owner. This acknowledgment of the fee owner's rights was fatal to his claim of adverse possession.

You can get the impression that somehow the possessor's mental state is important but it is only action that matters (but cf. Hostile above). It is the act of admitting the other's ownership or seeking consent to use which defeats the adverse possession.

A mistaken belief as to the true location of a boundary line makes no difference. Seymour, Sabin & Co. v. Carli, 31 Minn. 81, 16 N.W. 495 (1883). According to the court, lack of good faith makes no difference:

and, if such possession is continued the sufficient length of time, it will ripen into title, regardless of the good faith or the bad faith of the disseisor, or whether he claimed the legal right to enter, or avowed himself a wrongdoer. The two essential elements are possession and adverse intent. The misapprehensive on the subject arises from the somewhat misleading, if not inaccurate, terms frequently used in the books to express this adverse intent, such as 'claim of right,' 'claim of title,' and 'claim of ownership.' These terms, when used in this connection, mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others.

Carpenter v. Coles, 77 N.W. 424, 75 Minn. 9 (Minn. 1898); Cool v. Kelly, 78 Minn. 102, 104, 80 N.W. 861 (1899)

But don't tell a jury lack of good faith makes no difference; jurors think otherwise in my experience. Many lay people do not realize that you can lose title to land through adverse possession. Though they will be instructed to follow the law in a jury trial, they won't see the proof of the five elements in quite the same way.

KNOW YOUR AUDIENCE: COURT OR JURY

My hat would be off (if I wore hats) to those of you still reading to this point, particularly if you say, but, even if I want a jury, how do I get one? Isn't this some sort of equitable claim not entitling one to a jury?

The Rules of Civil Procedure, Rule 39.02 provides:
In all actions not triable of right by a jury the court, upon its own initiative, may try an issue with an advisory jury, or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.

See also Noble v. C.E.D.O., Inc, 374 N.W.2d 734, 739 (Minn. App. 1985). Ask the court for a jury trial and it may be permitted; and you can stipulate that the verdict is binding instead of merely advisory.

Recite the mantra of the day: hostile, open, exclusive, actual, continuous; hostile, open, exclusive, actual, continuous; hostile, open, exclusive, actual, continuous; hostile, open, exclusive, actual, continuous; you get the point.