                       This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2014).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A15-1887

                            Gregg H. Johnson, Plaintiff,

                                William Flies, et al.,
                                    Appellants,

                                         vs.

                              Township of Florence,
                                 Respondent,

                          State of Minnesota, Defendant.

                               Filed May 23, 2016
                             Affirmed and remanded
                                Rodenberg, Judge

                          Goodhue County District Court
                            File No. 25-CV-14-1835

Patrick B. Steinhoff, Bruce D. Malkerson, Malkerson Gunn Martin LLP, Minneapolis,
Minnesota (for appellants)

Einar E. Hanson, Benjamin J. Kirk, Strobel & Hanson, P.A., Hudson, Wisconsin; and
John D. Hagen, Jr., Minneapolis, Minnesota (for respondent)

      Considered and decided by Hooten, Presiding Judge; Larkin, Judge; and

Rodenberg, Judge.
                         UNPUBLISHED OPINION

RODENBERG, Judge

       Appellants William Flies, Linda Flies, and Chateau Frontenac, Ltd. challenge the

district court’s summary-judgment dismissal of this consolidated declaratory-judgment

and title registration action. They argue that the district court erred in concluding that an

1857 plat conveyed fee title to a single un-subdivided parcel along the Lake Pepin

shoreline to respondent Florence Township, that appellants’ lots “fronting the shoreline

dedication” do not extend to the shoreline of the lake, that the Marketable Title Act

(MTA) does not extinguish the township’s interest in the property, and that the township

is therefore entitled to register the subject land in the Torrens system. We affirm the

summary-judgment dismissal of appellants’ claims and remand for Torrens proceedings

consistent with this opinion.

                                          FACTS

       This appeal concerns the ownership of shoreline property on Lake Pepin’s

Frontenac Point (subject land). Ownership and use of the subject land was previously

disputed in 1935, and the history of the land and that earlier dispute are chronicled in

Schaller v. Town of Florence, 193 Minn. 604, 259 N.W. 529 (1935). The Schaller court,

borrowing from the magazine Minnesota History, described the land and the settlement

of Frontenac Point:

               It is impossible to understand the charm of Frontenac unless
              one knows its history, for the little village is an expression of
              strong personalities. Few beauty spots in America have been
              so long in the possession of one or two families and remained
              untouched by commercialism. This little settlement is located


                                             2
               on Lake Pepin, a widening of the Mississippi River which
               forms the boundary between Minnesota and Wisconsin at this
               point. The scenery of the upper Mississippi Valley is
               unsurpassed in the West. High on either side of the river rise
               palisades of rock or wooded slopes that suggest the banks of
               the Rhine. Early explorers marveled at its beauty, and the
               tourist of today responds to its dignity and serenity. . . . To
               those who respond to the atmosphere of Frontenac it is a
               haven of rest and a place of beauty, the home of a grace and a
               culture with roots in the past and a flowering in our own age.

193 Minn. at 605-06, 259 N.W. at 530 (quotation omitted).

       The 1935 dispute in Schaller was similar to the one before us now. The subject

land was platted in 1857, and the original plat “dedicate[d] to public use [the subject

land] to be used as a steamboat landing.” Id. at 607, 259 N.W. at 532. The property was

so used until 1917. Id. at 605, 610 N.W. at 530, 533. In 1907, Celestine Schaller

purchased most of the land on Frontenac Point, including a hotel, but the legal

descriptions of the lots she purchased did not include the subject land. See generally id.

at 609, 259 N.W. at 532 (stating Schaller had purchased the hotel, which was located on

land immediately behind Frontenac Point). Schaller maintained that the public’s interest

in the subject land had been abandoned. Id. at 609, 259 N.W. at 533. The township

opposed her proceeding to vacate. Id. at 605, 259 N.W. at 530. The Minnesota Supreme

Court held that the prior owners had, by the 1857 plat, dedicated the shoreline for general

public use and that the discontinuation of the use of the property as a steamboat landing

did not constitute abandonment of the township’s interest. Id. at 611, 614-15, 259 N.W.

at 533, 535.




                                             3
       Schaller later sold her lots.    A Methodist camp group eventually bought the

property formerly owned by her.        After the camp closed, appellants purchased the

property in 1987.

       In October 2013, appellants filed an application to register title to their land and to

the subject land, which is the unplatted shoreline adjoining their described lots. On

January 28, 2014, the examiner of titles recommended denial of the application because

appellants sought to register title to the shorefront land dedicated by the 1857 plat to

public use.

       In August 2014, appellants brought a declaratory-judgment action to determine

ownership of the subject land. Appellants alleged that the township had not recorded its

interest under the MTA, Minn. Stat. § 541.023 (2014), and had not exercised possession

of the land for more than 40 years. In September 2014, the township filed an action to

register title to the shoreline. The examiner of titles recommended that the township’s

application be granted.

       On November 24, 2014, the district court consolidated the two registration-of-title

actions and the declaratory-judgment action. Appellants dismissed their registration-of-

title action without prejudice.     Both parties moved for summary judgment in the

remaining and consolidated declaratory-judgment and registration-of-title actions.

       The district court granted the township’s motion for summary judgment, dismissed

appellants’ declaratory-judgment complaint, and dismissed appellants’ affirmative

defenses in the township’s registration-of-title action. The district court declined to




                                              4
complete the Torrens proceedings, and instead certified the partial judgment for

immediate appeal.

                                      DECISION

       Appellants challenge the district court’s grant of summary judgment, arguing that

the district court erred in concluding that the 1857 plat conveyed fee title to a single un-

subdivided parcel along the shoreline of Lake Pepin to the township, the MTA does not

extinguish the township’s interest in the subject land (which appellants contend is an

easement), and the township is entitled to register the subject land in the Torrens system.

The parties agree that if the 1857 plat conveyed fee title to the township, that issue is

dispositive. See Hempel v. Creek House Trust, 743 N.W.2d 305, 312 (Minn. App. 2007)

(“The MTA does not operate offensively to provide foundation for new title, but

defensively to protect preexisting claims of title.”).

       We review a district court’s grant of summary judgment de novo. Riverview Muir

Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). “In doing so,

we determine whether the district court properly applied the law and whether there are

genuine issues of material fact that preclude summary judgment.” Id. A genuine issue of

material fact exists when there is sufficient evidence that could lead a rational trier of fact

to find for the nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).

Summary judgment is not appropriate “when reasonable persons might draw different

conclusions from the evidence presented.” Id. at 69. Evidence is viewed in “the light

most favorable to the party against whom summary judgment was granted.” STAR

Centers, Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002).


                                               5
       Appellants argue that the district court erred in construing the Frontenac Plat as

having conveyed fee title to the township. They maintain that the plat conveyed only an

easement. Because Schaller considered the ownership of this same property, we first

consider whether the opinion in that earlier appeal operates as either res judicata or

collateral estoppel here.

       Res judicata only applies when four elements are present: (1) the same set of

factual circumstances was involved in both the earlier and the current proceedings;

(2) both proceedings involved the same parties or parties in privity with them; (3) the

earlier case included a final judgment on the merits; and (4) the party against whom the

doctrine applies had a full and fair opportunity to litigate the claim. Brown-Wilbert, Inc.

v. Copeland Buhl & Co., 732 N.W.2d 209, 220 (Minn. 2007). Collateral estoppel, or

issue preclusion, is narrower than res judicata. The requirements for application of

collateral estoppel are that (1) the issue in the case is identical to an earlier adjudication,

(2) the earlier case was a “final judgment on the merits,” (3) the party to be estopped was

a party or in privity with a party in the earlier case, and (4) the party sought to be

estopped had a “full and fair opportunity to be heard” in the earlier case. Hauschildt v.

Beckingham, 686 N.W.2d 829, 837 (Minn. 2004). Collateral estoppel only applies to

issues “actually litigated, determined by, and essential to a previous judgment.” In re

Application of Hofstad, 376 N.W.2d 698, 700 (Minn. App. 1985) (quotation omitted).

Neither doctrine is to be rigidly applied. Hauschildt, 686 N.W.2d at 837.

       Here, neither doctrine applies as a bar. Res judicata does not apply because the

issue in the earlier appeal was whether to vacate an interest arising from the plat due to


                                              6
abandonment. Here, appellants argue that the plat conveyed only an easement and that

the township, as owner of the easement, failed to exercise possession and failed to record

its interest under the MTA for 40 years. These claims require proof of different facts

than were considered in Schaller. Appellants’ MTA claim is based on a new statutory

provision not in effect at the time of Schaller. See Minn. Stat. § 541.023.

       Collateral estoppel does not apply to the fee-versus-easement dispute because that

issue was not “directly determined” in Schaller. The Schaller court instead resolved the

case by applying common-law abandonment principles. 193 Minn. at 614-15, 259 N.W.

at 534-35. The supreme court held that Schaller did not meet the statutory standard for

vacating a plat, which required that the vacation be in the public interest. See id. The

fee-versus-easement issue was not squarely decided in Schaller, nor was it necessary to

the holding there.

       Although Schaller does not bar appellants’ claims or finally resolve the fee-

versus-easement issue, we agree with the district court that the Schaller court’s language

in the earlier case informs our decision. The Schaller court noted:

              It seems obvious to us that what the donors intended was to
              convey to the public for its use all of Lake avenue, including
              as well all the property fronting upon the lake at Frontenac
              Point. . . . Everything points to a general donation or grant to
              public use of all the areas not surveyed into lots and
              blocks. . . . It is unreasonable to suppose that the dedication
              in respect of steamboat landing made for naught the prior
              general grant in respect of the public use indicated by the
              plat. . . . Conceding that the [district] court was right in
              holding that the lake shore had not been used for steamboat
              landing purposes over a period of some seventeen years, yet
              that would not, as we view the situation, at all interfere with
              the right of the public to the possession for use of Lake


                                             7
              avenue and the other streets and public places bordering upon
              the lake. The steamboat landing provision cannot be said to
              be in denial of the general grant.

193 Minn. at 611, 259 N.W. at 533.

       Informed by Schaller’s characterization of the Frontenac Plat, we consider now

whether the 1857 plat conveyed fee title or an easement to the subject land.

       The original plat concerned and conveyed to the public far more shoreland than

just the steamboat landing. The plat conveyed the subject land in the following terms:

              We also dedicate to Public use the Lake Shore between
              Blocks 9 & 13 to be used as a Steamboat Landing, reserving
              to ourselves all rights of wharfage and all rights and
              privileges of Ferry either within the above limits or
              elsewhere, either at the ends of the streets or within the
              boundaries of Lots which run to the water.

       The territorial statute in effect at the time of platting, which the Schaller court

applied to the facts before it, provided:

              When the plot or map shall have been made out and certified,
              acknowledged and recorded as required by this chapter, every
              donation or grant to the public or any individual or
              individuals, religious society or societies, or to any
              corporation or body politic, marked or noted as such on said
              plot or map, shall be deemed in law and equity a sufficient
              conveyance to vest the fee simple of all such parcel or parcels
              of land, as are therein expressed, and shall be considered to
              all intents and purposes a general warranty against such donor
              or donors, their heirs or representatives to said donee or
              donees, grantee or grantees, for his, her or their use, for the
              uses and purposes therein named, expressed and intended,
              and no other use and purpose whatever; and the land intended
              to be for the streets, alleys, ways, commons or other public
              uses in any town or city, or addition thereto, shall be held in
              the corporate name thereof, in trust to, and for the use and
              purposes set forth and expressed or intended.



                                            8
Minn. Gen. Stat. ch. 26, § 5 (1858); see also Schaller, 193 Minn. at 608, 259 N.W. at 632

(noting that the statute was effective between 1849 and 1858). The first part of the

statute provides that grants to the public are deemed to convey a fee simple interest.

Minn. Gen. Stat. ch. 26, § 5. The second excepts from this treatment lands intended for

streets and public ways, and treats such “donations” as easements. Id. The parties

dispute which portion of the statute governs the platters’ conveyance of the subject land.

We review the district court’s construction of the territorial statute de novo. Denman v.

Gans, 607 N.W.2d 788, 794 (Minn. App. 2000) review denied (Minn. Jun. 27, 2000).

       Appellants rely on a line of cases that distinguish “donation[s] or grant[s],” which

convey fee title, from dedications, which do not convey fee title. See Betcher v. Chicago

M. & St. P. Ry. Co., 110 Minn. 228, 124 N.W. 1096 (1910); Schurmeier v. St. Paul &

Pac. R.R. Co., 10 Minn. 82 (1865).

       Citing Schurmeier, appellants argue that the plain language of the Frontenac Plat

indicates that it was intended to dedicate, rather than donate or grant, the subject land to

the public strictly for a steamboat landing.        See Schurmeier, 10 Minn. at 104 (“A

dedication is not a grant or donation. Its effect is not to deprive a party of title to his land,

but to estop him, while the dedication continues in force . . . .”). In Schurmeier, the

parties disputed the possession and use of a levee along the Mississippi River in St. Paul.

Id. at 86-87. The plat in Schurmeier extended to the main channel of the river, id. at 84,

and designated a strip of land adjoining the river as a “landing,” id. at 85-86. The plat

also showed an “open river without islands.” Id. at 84. But changing water levels

actually revealed an “island” in the river. Id. The city graded the levee and included the


                                               9
island by filling the area in between it and the mainland, which effectively enlarged the

lots fronting on the landing. Id. at 86, 101-03. The plaintiff, Casper Schurmeier, owned

lots fronting on the landing and had built a warehouse on them. Id. at 83, 86. Schurmeier

derived title to his property from Louis Roberts, who purchased the property from the

government.    Id. 85.    He sought to enjoin the defendant railroad company from

constructing railroad tracks on the newly graded land, which would obstruct his use of his

warehouse in connection with the river. Id. at 87.

       The railroad company argued, in part, that Schurmeier did not have fee title to the

land because the plat dedicated it as a “landing.” Id. at 105. The Minnesota Supreme

Court rejected the railroad company’s argument, holding that,

              The use for which the dedication was made, therefore,
              determines the extent of the right parted with by the owner
              and acquired by the public or corporate authorities of the
              town. Neither the use for which the dedication was made, nor
              the language of the statute justifies, in this case, the
              conclusion that a legislative transfer of the fee was intended,
              and without such transfer, it remains in [the private party] and
              his grantees.

Id. at 104-05 (emphasis added). Schurmeier’s conclusion was therefore fact-specific,

turning on the fact that the initial dedication allowed the public to use the parcel for a

“landing.” Id. at 104.

       Here, the conveyance in the Frontenac Plat is unlike the dedication in Schurmeier.

This plat provides for a general conveyance for “public use.” The Schaller court thought

it “obvious . . . that what the donors intended was to convey to the public for its use” the

Lake Pepin shoreline on Frontenac Point. 193 Minn. at 611, 259 N.W. at 533. Both



                                            10
before and after 1917, when steamboat use of the point ceased, the shoreland conveyed to

the public consisted of much more shoreline than was used for the landing, and included

public uses other than the steamboat landing.

       Appellants also cite Betcher for the proposition that “the dedication of land [for a

steamboat landing or levee] . . . does not pass the fee-simple title thereto, but only such

an estate as the purpose of the trust requires, and that the fee, subject to the public

easement, remains in the dedicator and his grantees.” 110 Minn. at 234, 124 N.W. at

1099. The facts in Betcher are similar to those of Schurmeier: a railroad company

sought to build railroad tracks on a piece of land that was, at one time, dedicated to public

use as a “Steamboat Landing,” and a private individual claimed that he owned fee title to

the disputed property. Id. at 230-31, 124 N.W. at 1097. The plaintiff, Charles Betcher,

sought to recover a tract of land that the defendant railroad company possessed after the

town of Red Wing declared the tract vacated and permitted the railroad company to use

it. Id. at 229-30, 124 N.W. at 1092. The railroad company argued that the plat, which

labeled the tract of land “Steamboat Landing,” conveyed fee title to the town and that the

company “was in the possession of the premises for railroad purposes with the

acquiescence of the owner [town].” Id. at 230, 124 N.W. at 1097. The plat in Betcher

did not contain any other dedication, grant, or donation language concerning the disputed

property. Id. at 233-34, 124 N.W. at 1098-99.

       The Minnesota Supreme Court reviewed the facts in Betcher and was “of the

opinion that the [land] was dedicated to the use of the public primarily as a steamboat

landing or levee.” Id. at 231, 124 N.W. at 1097. But there is nothing from the Betcher


                                             11
opinion that indicates that the plat contained any language concerning the dedication

other than a label, “Steamboat Landing.” Here, in addition to the label, the Frontenac

Plat contains language that the subject land is “dedicate[d] to Public use.” Schaller, 193

Minn. at 607, 259 N.W. at 532. The Minnesota Supreme Court has construed this very

provision in the earlier litigation as “a general donation or grant to public use.” Id. at

611, 259 N.W. at 533. Betcher is therefore factually distinguishable from this case.1

      Neither the plain language of the territorial statute, nor caselaw interpreting that

statute provides a general rule concerning conveyances for the purpose of establishing

steamboat landings.      But Schurmeier’s general principle provides guidance for

determining whether the first half or the second half of the platting statute governs the

Frontenac Plat. The Schurmeier holding indicates that the platters’ intent “determines the

extent of the right parted with by the owner.” 10 Minn. at 104. We are informed by

Schaller’s construction of the Frontenac Plat as “intend[ing] to convey to the public for

its use all of Lake avenue, including as well all the property fronting upon the lake at

Frontenac Point.” 193 Minn. at 611, 259 N.W. at 533. The Schaller court observed that

“[e]verything points to a general donation or grant to public use of all the areas not

surveyed into lots and blocks,” which includes the subject land. Id. The clear intent of

the 1857 plat was to convey a fee interest.        The supreme court said that “[i]t is


1
  We are mindful that, at common law, a “dedication” generally “vests only an easement
in the public.” Note, Public Ownership of Land Through Dedication, 75 Harv. L. Rev.
1406, 1408 (1962) (citing Ryerson v. City of Chicago, 247 Ill. 185, 93 N.E. 162 (1910)).
Here, we are applying the territorial statute, and not the common law, and we do so in the
context of the Minnesota Supreme Court’s earlier review of a case concerning this
precise parcel of land under that same statute.

                                            12
unreasonable to suppose that the dedication in respect of [a] steamboat landing made for

naught the prior general grant in respect of the public use indicated by the plat.” Id. The

Schaller court further observed that even if “the lake shore had not been used for

steamboat landing purposes over a period of some seventeen years, . . . that would not . . .

at all interfere with the right of the public to the possession for use of Lake avenue and

the other streets and public places bordering upon the lake.” Id. In concluding that the

public had not abandoned the subject land, the supreme court necessarily construed the

Frontenac Plat as having conveyed more than an easement limited to steamboat-landing

purposes. Although the earlier Schaller opinion did not determine the same issues we

consider here, the supreme court’s construction of the plat language concerning this very

same parcel of land is persuasive. The 1857 plat conveyed fee title to the subject land to

respondent township.

       Moreover, the 1857 plat contains the following language concerning the land:

              We also dedicate to public use the Lake Shore between
              Blocks 9 & 13 to be used as a Steamboat Landing, reserving
              to ourselves all rights of wharfage and all rights and
              privileges of Ferry either within the above limits or
              elsewhere, either at the ends of the streets or within the
              boundaries of Lots which run to the water.

Id., at 606, 259 N.W. at 532 (emphasis added.) Two portions of this reservation by the

plat confirm that it conveyed fee title. First, the plat reserved rights in the grantor. Had

the grant been limited to an easement, the reservation would have been unnecessary

because, in the case of an easement, the grantor would retain all rights in the property

except those rights conveyed in the easement. See 28A C.J.S. Easements § 192 (2016)



                                            13
(“Owners of the servient tenement retain every incident of ownership not inconsistent

with the easement and the enjoyment of the same.”). Second, the passage makes specific

reference to lots that “run to the water.” At the point where the Steamboat Landing was

situated, the lots do not “run to the water,” while in other places the lots are designated by

the plat to run up to the shore of Lake Pepin.

       Because, under the territorial statute, the township was granted a fee interest in the

shoreland, appellants cannot rely on the MTA to create a fee interest where the deeds to

which their title can be traced do not include that shoreline property. See Hempel, 743

N.W.2d at 312 (“The MTA does not operate offensively to provide foundation for new

title, but defensively to protect preexisting claims of title.”); see also Padrnos v. City of

Nisswa, 409 N.W.2d 36, 38 (Minn. App. 1987) (noting that “the MTA was designed to be

invoked as a defense” and “does not operate to provide a foundation for a new title”),

review denied (Minn. Sept. 23, 1987). The MTA has no application here.

       Under the territorial statute in effect at the time, the 1857 plat conveyed fee title to

the subject land to the township.       Therefore, we do not address appellants’ other

arguments, and we affirm the district court’s grant of summary judgment in favor of

respondent. Because the Torrens proceedings were held in abeyance pending this appeal,

we remand the case for Torrens proceedings consistent with this opinion.

       Affirmed and remanded.




                                              14
