                 Filed 08/27/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 181



Leslie Gimbel,                                        Plaintiff and Appellee
      v.
Jeff Magrum and
Donna Magrum,                                    Defendants and Appellants



                                No. 20190412

Appeal from the District Court of Emmons County, South Central Judicial
District, the Honorable Douglas A. Bahr, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Garrett D. Ludwig, Mandan, ND, for plaintiff and appellee.

Mary E. Depuydt, Wishek, ND, for defendants and appellants.
                         Gimbel v. Magrum, et al.
                             No. 20190412

Crothers, Justice.

[¶1] Jeff and Donna Magrum appeal from a district court judgment quieting
title to real estate in Leslie Gimbel. The Magrums argue the court erred when
it determined they did not acquire ownership of the property by adverse
possession or acquiescence. We affirm.

                                       I

[¶2] The dispute concerns two parcels of real estate located in Emmons
County. Gimbel owns the northern parcel. The Magrums own the southern
parcel. A trail runs in a general east-west direction near the southern border
of Gimbel’s property and the northern border of the Magrums’ property. The
Magrums annually cut and remove hay from the area south of the trail. Their
predecessors-in-interest did the same. The Magrums built a fence south of,
and parallel to, the trail.

[¶3] Gimbel commissioned a survey after the Magrums built the fence. The
surveyor determined the property line was located south of the trail, within
the area enclosed by the Magrums’ fence. Gimbel submitted a plat of the
survey to the County for approval. The County approved the plat, and Gimbel
recorded it. Gimbel informed the Magrums he believed they had encroached
on his property and requested they remove the fence.

[¶4] This litigation ensued. Gimbel filed a complaint requesting the district
court quiet title in his favor. The Magrums brought a counterclaim asserting
that they hold legal title to the property or, alternatively, that they acquired
ownership by adverse possession or acquiescence. After a bench trial, the court
found Gimbel owned the property and the Magrums did not acquire any
interest by adverse possession or acquiescence.




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                                        II

[¶5] We apply the following standard when reviewing an appeal from a bench
trial:

            “In an appeal from a bench trial, the district court’s findings
     of fact are reviewed under the clearly erroneous standard of
     review, and its conclusions of law are fully reviewable. Sauter v.
     Miller, 2018 ND 57, ¶ 8, 907 N.W.2d 370; Moody v. Sundley, 2015
     ND 204, ¶ 9, 868 N.W.2d 491. A finding of fact is clearly erroneous
     if it is induced by an erroneous view of the law, if there is no
     evidence to support it, or if, after reviewing all of the evidence, this
     Court is convinced a mistake has been made. Sauter, at ¶ 8;
     Moody, at ¶ 9. ‘In a bench trial, the district court is the determiner
     of credibility issues and we will not second-guess the district court
     on its credibility determinations.’ Sauter, at ¶ 8. ‘Findings of the
     trial court are presumptively correct.’ W. Energy Corp. v. Stauffer,
     2019 ND 26, ¶ 5, 921 N.W.2d 431 (citing Brash v. Gulleson, 2013
     ND 156, ¶ 10, 835 N.W.2d 798).”

Larson v. Tonneson, 2019 ND 230, ¶ 10, 933 N.W.2d 84.

                                        A

[¶6] The Magrums assert the district court erred when it determined they did
not obtain ownership of the property by adverse possession. Their claim to
title is based on actual occupancy and is not founded upon a written
instrument.

[¶7] The requirements for adverse possession not founded upon a written
instrument are explained in Tonneson, 2019 ND 230, ¶¶ 12-14, 933 N.W.2d 84:

           “Generally, N.D.C.C. § 28-01-07 provides a presumption
     against the adverse possession of real property ‘unless it appears
     that such premises have been held and possessed adversely to such
     legal title for twenty years before the commencement of such
     action.’ Section 28-01-10, N.D.C.C., states: ‘When there has been




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an actual continued occupation of premises under a claim of title
exclusive of any other right, but not founded upon a written
instrument or upon a judgment or decree, the premises actually
occupied and no other must be deemed to have been held
adversely.’ (Emphasis added.)

      “. . . N.D.C.C. § 28-01-11 . . . provides:

      For the purpose of constituting an adverse possession
      by a person claiming title not founded upon a written
      instrument nor upon a judgment or decree, land shall
      be deemed to have been possessed and occupied only
      in the following cases:

            1. When it has been protected by a substantial
               enclosure; or

            2. When it has been usually cultivated or
               improved.

      “‘To satisfy the elements for adverse possession, the acts on
which the claimant relies must be actual, visible, continuous,
notorious, distinct, and hostile, and of such character to
unmistakably indicate an assertion of claim of exclusive ownership
by the occupant.’ Gruebele v. Geringer, 2002 ND 38, ¶ 7, 640
N.W.2d 454; see also Benson v. Feland Bros. Props., 2018 ND 29,
¶ 15, 906 N.W.2d 98; Benson v. Taralseth, 382 N.W.2d 649, 653
(N.D. 1986); Torgerson v. Rose, 339 N.W.2d 79, 84 (N.D. 1983);
Woodland v. Woodland, 147 N.W.2d 590, 597 (N.D. 1966). ‘Actual
knowledge of the adverse possession is not necessary if there is a
course of conduct directly hostile and these acts of hostility are
“unmistakably clear.’’’ Benson, 382 N.W.2d at 653. The person
claiming property by adverse possession has the burden to prove
the claim by clear and convincing evidence, and ‘every reasonable
intendment will be made in favor of the true owner.’ Gruebele, at
¶ 8. ‘All of the elements must be satisfied, and if any elements are
not satisfied the possession will not confer title.’ Moody [v.
Sundley], 2015 ND 204, ¶ 11, 868 N.W.2d 491. Whether an




                                   3
      adverse possession has occurred presents a question of fact, which
      will not be reversed on appeal unless clearly erroneous. Moody, at
      ¶ 11; Gruebele, at ¶ 6.”

[¶8] The Magrums claim they acquired ownership of the disputed property
by adverse possession because they and their predecessors hayed the land
annually for more than twenty years.

[¶9] The district court found the annual cutting of hay, “which occurred once
annually the years it occurred, was not cultivation, continuous, and exclusive
of Gimbel’s right of title . . . .” The court also found the haying was not adverse
to Gimbel. The court’s findings are supported by the evidence. Gimbel testified
he always allowed others to hay the disputed property for free because it was
uneconomical to hay and he did not want the hay. In addition, it is undisputed
that the property is raw pasture land existing in its natural state. Because the
evidence supports the district court’s findings concerning a lack of adversity
and a lack of cultivation, the court’s determination that the Magrums did not
establish adverse possession is not clearly erroneous.

                                        B

[¶10] The Magrums assert the district court erred when it determined they did
not obtain ownership of the property by acquiescence.

[¶11] The doctrine of acquiescence applies when parties mutually mistake a
boundary as a property line. Sauter, 2018 ND 57, ¶ 10, 907 N.W.2d 370.

            “The doctrine of acquiescence is separate from adverse
      possession and may apply when all of the elements of adverse
      possession cannot be met. See James v. Griffin, 2001 ND 90, ¶ 10,
      626 N.W.2d 704. ‘The doctrine of acquiescence allows a person to
      acquire property when occupying part of a neighbor’s land due to
      an honest mistake about the location of the true boundary, because
      the adverse intent requirement of the related doctrine of adverse
      possession could not be met.’ Fischer v. Berger, 2006 ND 48, ¶ 12,




                                        4
      710 N.W.2d 886. ‘To establish a new boundary line by the doctrine
      of acquiescence, it must be shown by clear and convincing evidence
      that both parties recognized the line as a boundary, and not a mere
      barrier, for at least 20 years prior to the litigation.’ Brown v.
      Brodell, 2008 ND 183, ¶ 9, 756 N.W.2d 779. Mutual recognition of
      the boundary may be inferred by a party’s conduct or silence. Id.
      The determination whether there has been mutual recognition of
      a boundary is a question of fact, which we review under the clearly
      erroneous standard on appeal. Id. at ¶ 10.”

Moody, 2015 ND 204, ¶ 23, 868 N.W.2d 491.

[¶12] The Magrums claim they, their predecessors, and Gimbel all mistook the
trail as the property line. They argue the district court erred by finding no
mutual mistake concerning the property line because the court improperly
imported elements of adverse possession into its acquiescence analysis.

[¶13] “Appellate courts review the record and findings as a whole and if the
controlling findings are supported by the evidence, they will be upheld on
appeal notwithstanding immaterial misstatements in the lower court’s
decision.” Puklich v. Puklich, 2019 ND 154, ¶ 45, 930 N.W.2d 593. The district
court discussed the lack of improvements made to the disputed property and
used the terms “hostile” and “notice” while explaining its finding that Gimbel
did not acquiesce in the trail as a property line. Although the court used terms
and concepts that overlap with adverse possession analysis, its controlling
finding—that Gimbel did not recognize the trail as the property line—supports
a lack of acquiescence.

[¶14] The Magrums also claim the district court’s findings are not supported
by the evidence. They claim the court’s decision is clearly erroneous because
it ignored testimony favorable to their case. While we acknowledge conflicting
testimony exists on the issue of acquiescence, “[i]n a bench trial, the district
court is the determiner of credibility issues and we will not second-guess the
district court on its credibility determinations.” Sauter, 2018 ND 57, ¶ 8, 907
N.W.2d 370. Because evidence supports the court’s finding regarding a lack of




                                       5
mutual recognition of the trail as the property line, its determination that
there was a lack of acquiescence is not clearly erroneous.

                                    III

[¶15] The parties’ remaining arguments are either without merit or
unnecessary to our decision. We affirm the judgment.

[¶16] Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Gerald W. VandeWalle
      Jon J. Jensen, C.J.




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