                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0395

 In the Matter of the Cross Application of Anthony E. Sampair and Laurie K. Sampair to
  register the title to the following described real estate situated in Washington County,
  Minnesota, namely: Lots 1 and 2, Block 1, Lakewood Park Third Addition, applicants,
                                         Respondents,

                                            vs.

                              Josephine Berg Simes, et al.,
                                       Appellants,
                                State of Minnesota, et al.,
                                       Defendants.

                                Filed December 8, 2014
                                Affirmed; motion denied
                                      Reyes, Judge

                            Washington County District Court
                                File No. 82C706002146

Wayne B. Holstad, Frederic W. Knaak, Holstad & Knaak, P.L.C., St. Paul, Minnesota
(for appellants)

Mark E. Greene, Sarah L. Krans, Bernick & Lifson, P.A., Minneapolis, Minnesota (for
respondents)

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

Reilly, Judge.
                         UNPUBLISHED OPINION

REYES, Judge

       In this most recent appeal in the parties’ easement dispute, appellants, who claim

an easement over respondents’ land, argue (1) the district court erred by not shifting the

burden to respondents to show abandonment by appellants once appellants provided

evidence of continuous use; (2) respondents’ “negative evidence” was insufficient to

rebut the affirmative evidence of use of the easement by appellants; and (3) the district

court’s finding that appellants failed to present evidence of continuous use of their

easement is not supported by the record. We affirm.

                                          FACTS

       This case arises from an application to register under the Torrens act (Minn. Stat.

§§ 508.01-.84 (2012)), a lakeshore property in Washington County. Respondents

Anthony and Laurie Sampair are the present owners of property on which appellants

Josephine Berg Simes, James Berg, and the estate of Frima Bender claim an easement

(Sampair Property). White Bear Lake is on the north side of Sampair Property.

Appellants own nonlakeshore property (Berg Property) located just southwest of Sampair

Property and claim the benefit of an appurtenant easement over the western portion of

Sampair Property to access White Bear Lake. Directly west of the disputed easement is a

50-foot-wide public access, which is a grassy strip owned by the Village of Birchwood to

allow public access to the shores of White Bear Lake.

       Appellants’ easement was deeded to their predecessors in interest in 1909.

However, no notice of the easement was recorded within 40 years of the execution of the


                                             2
easement as required by the Minnesota Marketable Title Act (MTA). Minn. Stat.

§ 541.023 (2012). Appellants argue that they fall under an exception to the MTA of

being “in possession” of the easement as shown by continuous use of the easement

sufficient to put a prudent person on notice from 1949 to 2006.

       This case is currently in its eighth year of litigation. Respondents’ predecessors

originally commenced this action in 2006, when they sought to register title to Sampair

Property. During the registration proceeding, the title examiner noted a number of

recorded easements over Lot 1, Block 1 of Sampair Property. After acquiring the

property in 2007, the Sampairs served each easement owner, and fifteen defendants

answered the complaint.

       The district court entered summary judgment in favor of the Sampairs, and all

fifteen defendants appealed. The court of appeals affirmed summary judgment. Sampair

v. Village of Birchwood, No. A08-1494 (Minn. App. June 9, 2009). Defendants appealed

to the Minnesota Supreme Court which affirmed summary judgment against twelve of the

fifteen defendants but reversed summary judgment against current appellants. Sampair v.

Village of Birchwood, 784 N.W.2d 65, 76 (Minn. 2010). With respect to appellants, the

supreme court concluded that while “[t]he possession alleged in the Simes affidavits is

not described in any detail” and “[a] trier of fact might ultimately find that . . . appellants’

claimed use of the easement is not credible,” the affidavits “raise genuine issues of

material fact as to the possession of [appellants] during the entirety of the possession

period.” Id. at 76.




                                               3
       On remand, the parties engaged in further discovery, during which Ms. Berg

Simes was deposed. Respondents brought another motion for summary judgment,

arguing that the affidavits were already reviewed by the supreme court and Ms. Berg

Simes’ deposition testimony was insufficient to raise a genuine issue of material fact.

The district court again awarded summary judgment to respondents. The court of appeals

reversed and remanded, and a two-day bench trial was held. Sampair v. Simes, No. A12-

1028 (Minn. App. Apr. 2013).

       Ms. Berg Simes, her two sons David and James Berg, and neighbor Brian Lind all

testified in favor of appellants. Their testimony recalled various instances of using the

easement to access the lake during the summer months from the 1950s to 2006. For

example, Ms. Berg Simes testified that appellants used the easement for bathing,

swimming, and boating, including building a dock on it. However, on cross-examination,

Ms. Berg Simes admitted that this was inconsistent with her deposition testimony that she

did not know the dividing line between the public access and easement and that she did

not know which access her parents used to get to the lake. David and James Berg

recalled using the easement for various summer activities and would beach a speedboat

on it when they needed to get something from their cottages. David Berg also stated that

he did not know where the dividing line was between the easement and the public access.

James Berg stated that a line of trees distinguished the easement from the public access

and described the easement as a “worn out spot near the road and a bit of a jungle path

going forward.” Brian Lind testified that he had observed children, including the Bergs,




                                             4
using the easement and that there was a path that could be seen from the road that he

improved several times by raking seaweed, clearing roots, and removing buckthorn.

       A number of individuals testified on behalf of respondents, including the

Sampairs, James Krizak (owner of Sampair Property just prior to the Sampairs), the

Madores (also previous owners of Sampair Property and current neighbors to the

immediate east), the Greeleys (neighbors to the immediate west), and James Parker who

testified in an expert capacity as a land surveyor. Each resident testified that they had not

seen any evidence of someone using the easement. Each resident testified that the

easement was thick with vegetation, including bushes, trees, poison ivy, and buckthorn.

Mr. Parker conducted a survey of the neighborhood in order to compare with various

aerial photographs, the results of which were admitted into evidence. Mr. Parker

concluded that the docks depicted in a 1945 photograph were not on Sampair Property.

       Ultimately, the district court found in favor of respondents. Taking all of the

testimony into consideration, the district court found that appellants had failed to provide

evidence of continuous use of the easement sufficient to put a prudent person on notice of

their claimed easement from 1949 to the start of litigation in 2006. The district court

specifically noted that while appellants’ testimony certainly recalled instances of using

the lake, their testimony could not establish a means of access, distinguish the property

dividing line between the easement and the public access located adjacent to the

easement, nor establish actual position of the presumed easement. This appeal follows.




                                              5
                                      DECISION

       The MTA provides that an interest in land whose source of record is more than 40

years old cannot be invoked in an action affecting title or possession of real estate unless,

within the 40-year period after the interest was created, a special notice is recorded.

Minn. Stat. § 541.023, subd. 1. If the required notice is not filed within the 40-year

period, then the claimed interest is “conclusively presumed to have [been] abandoned.”

Minn. Stat. § 541.023, subd. 5. In this case, it is uncontested that appellants’ easement

was created more than 40 years ago and that the required notice was not filed. However,

a number of exceptions apply to the presumption of abandonment by appellants,

including an exception for “any person . . . in possession of real estate.” Minn. Stat.

§ 541.023, subd. 6. Easements are among the interests in land that may be eliminated by

the MTA, and the possession exception may be invoked by easement holders even though

easements are not possessory estates. Sampair, 784 N.W.2d at 69.

       In order to invoke the possession exception, a claimant has the burden of proving

continuous possession beginning at the fortieth anniversary of the creation of the interest

the claimant seeks to enforce, through the filing of the action. Id. at 71. For the purpose

of the MTA’s possession exception, “possession” of an easement means “use sufficient to

put a prudent person on notice of the asserted interest in the land, giving due regard to the

nature of the easement at issue.” Id. at 70.




                                               6
I.     Burden-of-Proof Argument

       Appellants argue that, while the burden of proof was initially on them to show

possession, the burden should have shifted to respondents to show abandonment once

respondents’ motion to dismiss was denied. Specifically, appellants argue that

subdivision 5 of the MTA mandates that once a dominant estate owner shows possession,

the burden of proof shifts to the servient estate owner to prove abandonment, and this

switch should have occurred once the district court denied respondents’ motion to

dismiss. The challenge by the appellants to the burden of proof applied by the district

court raises a legal issue which we review de novo. Modrow v. JP Foodservice, Inc., 656

N.W.2d 389, 393 (Minn. 2003).

       Appellants are barred from making a burden-of-proof argument because it was not

raised at the district court level. The argument was not presented to the district court and

appellants did not make a motion for a new trial or amended findings. Generally, a

reviewing court must consider only the issues that were presented and considered by the

district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Accordingly,

appellants are precluded from raising it here.

       Even if appellants had properly raised the issue before the district court, such an

argument would not be successful. First, appellants rely on the language of subdivision 5

of the MTA to argue that the burden to show abandonment should have been placed on

respondents. Subdivision 5 of the MTA reads, in part: “Abandonment Presumed. Any

claimant under any instrument, event or transaction barred by the provisions of this

section shall be conclusively presumed to have abandoned all right, claim, interest,


                                             7
incumbrance, or lien based upon such instrument, event, or transaction.” Minn. Stat.

§ 541.023, subd. 5. Under subdivision 5, any party who failed to record their property

interest within 40 years is conclusively presumed to have abandoned such interest. Foster

v. Bergstrom, 515 N.W.2d 581, 586-87 (Minn. App. 1994) (“A presumption of

abandonment arises if the party against whom the Act is invoked has failed to record its

interest in the property within 40 years from the date that interest is established.”). As

such, subdivision 5 stands for the opposite of what appellants argue. Appellants

stipulated that no notice of the easement was recorded within 40 years of its execution.

With no notice given, respondents did not have the burden of showing abandonment;

rather, abandonment by appellants is presumed.

       Second, appellants’ contention that the burden of proof should have shifted when

the district court denied respondents’ motion to dismiss appears to rely on a

misinterpretation of the rules of civil procedure. After appellants presented their

testimony, respondents moved the court to dismiss pursuant to Minn. R. Civ. P. 41.02.

This motion was denied. Appellants interpret this denial to mean that the testimony

presented was enough to show possession of the easement. But when a court denies a

motion to dismiss, it does not simultaneously affirm the statements of the nonmoving

party. See Minn. R. Civ. P. 41.02(b) (“the defendant, without waiving the right to offer

evidence in the event the motion is not granted, may move for dismissal”) (emphasis

added); 1A David F. Herr & Roger S. Haydock, Minnesota Practice § 41.02 cmt. 41:21

(5th ed. 2014) (“After a motion has been denied, the defendant then decides whether to

pursue the right to present evidence in an effort to contradict or rebut plaintiff's case or to


                                               8
rest permitting the court to rely on the plaintiff’s evidence only for its findings of fact in

the pending litigation.”). A denial of a motion to dismiss simply allows a case to move

forward.1

II.    Negative Evidence

       Appellants classify all of respondents’ testimony as “negative” evidence.

Appellants appear to make two arguments based on this classification: (1) the negative

evidence should not have been admitted at all and (2) the district court erred in giving

greater weight to the negative evidence than to the positive testimony of the appellants.

Both arguments are unconvincing.

       The challenge by the appellants to the admissibility of negative evidence is an

evidentiary issue. The admissibility of evidence rests within the discretion of the district

court and will not be disturbed unless it is “based on an erroneous view of the law or

constitutes an abuse of discretion.” Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d

42, 45-46 (Minn. 1997). Unless there is an indication that the district court exercised its

discretion “arbitrarily, capriciously, or contrary to legal usage,” this court is bound by the

district court’s result. Id. at 46.

       First, appellants question the admissibility of respondents’ testimony. Appellants

raise this issue for the first time on appeal. Under Minn. R. Evid. 103, a party’s failure to

object to the admissibility of evidence waives the issue on subsequent appeals. Jones v.

Fleischhacker, 325 N.W.2d 633, 639 (Minn. 1982) (“[I]t is clear that error in admission

1
 The district court stated as much: “Okay. I will be receiving, I am sure, different views
of the testimony and details of that testimony from both sides. But there is enough to
move forward, so the motion is denied.”

                                               9
of evidence can be waived . . . by failing to make [a] timely objection.”) (citing Minn. R.

Evid. 103(a)(1)). Because appellants never objected to the admissibility of respondents’

testimony, the issue was not preserved for appeal, and appellants are precluded from

raising it now.2

       Second, appellants argue that negative evidence should be viewed as weak, and

the district court erred by giving greater weight to respondents’ testimony rather than

appellants’. How much weight a court should accord to negative evidence is a question

of fact. See Lewis v. County of Hennepin, 623 N.W.2d 258, 262 (Minn. 2001) (stating

that the weight to be given valuation evidence is for the trier of fact); J.L.B. v. T.E.B., 474

N.W.2d 589, 603 (Minn. App. 1991) (affirming a determination by the district court

because it was within its discretion “as fact finder and evaluator of weight and credibility

of evidence”), review denied (Minn. Oct. 11, 1991). “The [district] court’s factual

findings are subject to a clearly erroneous standard of review[.]” State v. Critt, 554

N.W.2d 93, 95 (Minn. App. 1996) (reviewing the substantiality of violation of Scales

recording requirement), review denied (Minn. Nov. 20, 1996).

       Despite appellants’ contention, not all of respondents’ testimony qualifies as

negative evidence. Negative evidence is evidence which is offered to show the

nonexistence of a fact. See generally 29 Am. Jur. 2d Evidence § 327 (2014). For



2
  Even if appellants had objected, they failed to bring a motion for a new trial, a
prerequisite for appellate review. See Alpha Real Estate Co. v. Delta Dental Plan, 664
N.W.2d 303, 309-10 (Minn. 2003) (reiterating that a motion for a new trial is a
prerequisite for review of issues of “trial procedure, evidentiary rulings and jury
instructions”).

                                              10
example, in Cotton v. Willmar & S. F. Ry. Co.,3 a witness testified that he did not hear the

sound of a train’s warning bell when the train crossed an intersection and struck the

plaintiff’s carriage. 99 Minn. 366, 368, 109 N.W. 835, 836-37 (1906). As the Cotton

court explains, a witness’s mere statement that he did not hear the bell ring is “valueless

as evidence.” Id. at 369, 837. But if it appears that the witness was able to hear and was

in a position where he would have heard the sound had it been made, such evidence is

probative and weight will be accorded to it depending on the witness’s senses, proximity,

degree of attention, and other circumstances. Id. at 368-69, 837. As the Cotton court

stated, “[s]uch evidence while negative in form, is affirmative in substance.” Id. at 369,

837.

       Respondents’ fact witness testimony is negative in form but affirmative in

substance. Each of the respondents’ fact witnesses lived at the Sampair Property or were

its immediate neighbors. Each witness was in a position to see the easement, any paths

across the easement, and any evidence of the easement’s use. Respondents’ testimony is

thereby probative and, using Cotton as guidance, the amount of weight it should be given

depends on the witnesses’ credibility, faculties, and proximity. As a result, this is a

sufficiency-of-the-evidence argument, which we will analyze next.

III.   Sufficiency of the Evidence

       Appellants argue that the district court’s finding that appellants failed to present

evidence of continuous use is not supported by the record. Appellate courts defer to

3
 In Forde v. Northern Pac. Ry. Co., 241 Minn. 246, 252, 63 N.W.2d 11, 16 n.6 (Minn.
1954), the Minnesota Supreme Court cited Cotton as a “leading case” on negative
evidence.

                                             11
district court credibility determinations and will “neither reconcile conflicting evidence

nor decide issues of witness credibility, which are exclusively the province of the

factfinder.” Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004). The district court

weighed the testimony of witnesses for both appellants and respondents to determine

whether appellants had possessed the easement sufficient to put a prudent person on

notice of the easement. In fact, the district court went so far as to perform a decade by

decade analysis of appellants’ alleged continuous use. Taking the testimony of both sides

into consideration, the district court found respondents’ testimony to be more credible

and any use by appellants was too “sporadic and occasional . . . especially considering

their use of the public access adjacent to the Sampair property.” Moreover, testimony

from current owners, previous owners, and immediate neighbors that the easement was

covered with thick vegetation, poisonous weeds, and showed no signs of use is certainly

relevant in determining whether a reasonably prudent person would be put on notice by

the alleged use. Respondents’ testimony, combined with inconsistencies in appellants’

own testimony, show that there was reasonable evidence in the record to support the

district court’s carefully considered findings and that those findings are not clearly

erroneous. See Minn. R. Civ. P. 52.01 (stating that findings of fact will not be set aside

unless clearly erroneous).




                                             12
IV.    Motion for Sanctions

       Respondents filed a timely motion for sanctions pursuant to Minn. Stat. § 549.211

(2012) and Minn. R. Civ. App. P. 138.4 Respondents ask for attorney fees and double

costs in accordance with Minn. R. Civ. App. P. 138. Respondents contend that the appeal

was made only to harass, cause unnecessary delay, and to needlessly increase the cost of

litigation because appellants’ arguments were either already rejected by the Minnesota

Supreme Court or were clearly not reviewable on appeal. We disagree.

       Conduct is measured by an objective standard under section 549.211. Radloff v.

First Am. Nat. Bank of St. Cloud, N.A., 470 N.W.2d 154, 157 (Minn. App. 1991).

Sanctions may be imposed if the claims raised by appellants are presented to “cause

unnecessary delay or needless increase in the cost of litigation.” Minn. Stat. § 549.211,

subd. (2). In the past, this court has awarded sanctions under Minn. R. Civ. App. P. 138

where an appellant’s positions have been “duplicitous and disingenuous and have had the

effect of further delaying distribution, lengthening this litigation, and increasing the

expense of these proceedings.” Redmond v. Redmond, 594 N.W.2d 272, 276 (Minn.

App. 1999). “Duplicitous” refers to a scenario in which an appellant raises the same

issues against the same parties after those issues have already received review on their

merits by an appellate court. See Orman v. Orman, 364 N.W.2d 836, 837-38 (Minn.

App. 1985), review denied (Minn. May 31, 1985).

4
  Respondents also cite Minn. R. Civ. P. 11 as a basis for the motion. However, Rule 11
is not a basis for a fee award on appeal. See Uselman v. Uselman, 464 N.W.2d 130, 145
(Minn. 1990) (denying a motion for fees on appeal made under Rule 11 because the
motion was beyond the scope of Rule 11), superseded by statute on other grounds,
Minn.Stat. § 549.21 (1990) (repealed 1997).

                                              13
       Respondents correctly point out that appellants previously made a burden-of-proof

argument to the Minnesota Supreme Court, which was explicitly rejected. Sampair, 784

N.W.2d at 73-74 (discussing which party had the burden of proof and ultimately

concluding that “appellants, as the parties seeking the protection of the MTA possession

exception, bore the burden of proving possession”). However, the argument made to the

Minnesota Supreme Court differs slightly from the argument made here. While

appellants previously argued that the burden of proof was not on them in the first place,

their argument here admits that the burden was initially on them but contends that it

should have shifted after the motion to dismiss was denied. Although the argument is

unconvincing, it does differ slightly from the contention made at the supreme court, and,

on this record, we conclude that this subtle difference removes this argument from

Orman’s definition of “duplicitous.” See Orman, 364 N.W.2d at 837-38.5

       Respondents further argue that appellants’ negative-evidence argument was

offered only for purposes of delay. Respondents correctly state that appellants previously

made a negative-evidence argument in their 2008 appeal to this court. This court did not

address this argument in our opinion affirming summary judgment. See Sampair v.

Village of Birchwood, No. A08-1494 (Minn. App. June 9, 2009). Respondents argue that


5
  We recognize that appellants first raised this particular argument on appeal from the
district court’s 2012 award of summary judgment. However, this court reversed and
remanded without commenting on the burden-of-proof argument. Sampair v. Simes,
2013 WL 1705047 (Minn. App. 2013). On remand, appellant did not raise the burden-of-
proof argument at the district court level but once again raises it here. While this version
of the argument is barred by Thiele, appellant did not receive review of the merits of the
argument, and, therefore, it does not qualify as “duplicitous.” See Orman, 364 N.W.2d at
837-38.

                                            14
appellants’ reprising of the negative-evidence argument despite their failure to object at

the lower court is further evidence that the appeal was brought merely to delay.

Respondents, however, failed to properly classify appellants’ negative-evidence

argument. The heart of their argument revolves around how much weight negative

testimony should be given, not whether it should be admissible in the first place.6

Because this argument was not addressed in the previous appeal, it cannot be deemed

“duplicitous” under Redmond and Orman. Furthermore, the issue was preserved for

appeal because appellants made the argument at the district court level during their

written closing argument, and the district court implicitly rejected it. Although this

argument is a difficult one to make given the district court’s thorough analysis, appellants

have a right to appeal a district court’s credibility determination.

       Affirmed; motion denied.




6
 Appellants make a brief admissibility argument. As previously stated, this argument is
not properly before us because it was not raised at the district court level.

                                              15
