                        This opinion will be unpublished and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
                                   A15-1315

                              Randal V. Johnson, et al.,
                                   Respondents,

                                         vs.

                                  Robert A. Fischer,
                                     Appellant,

                                  County of Sibley,
                                    Respondent.

                                 Filed May 2, 2016
                                     Affirmed
                                  Hooten, Judge

                             Sibley County District Court
                                 File No. 72-CV-14-4

Roger H. Hippert, Nierengarten & Hippert, Ltd., New Ulm, Minnesota (for respondents
Johnson, et al.)

Kenneth R. White, Law Office of Kenneth R. White, P.C., Mankato, Minnesota (for
appellant)

David E. Schauer, Sibley County Attorney, Winthrop, Minnesota (for respondent county)

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

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

HOOTEN, Judge

       In this appeal of a boundary dispute between farmers, appellant argues that the

district court erred in determining that respondents established ownership of a portion of

his land by adverse possession and by concluding that he did not meet his burden of

establishing adverse possession over a portion of respondents’ land. We affirm.

                                          FACTS

       Respondent Delores A. Johnson owns two adjacent parcels of farmland in fee

simple, one of which is a 40-acre parcel. Delores Johnson owns the parcels subject to

contracts for deed held by her son, respondent Randal V. Johnson, and his wife, respondent

Pamela L. Johnson. The neighboring farmland to the west and north is owned by appellant

Robert A. Fischer. The Johnsons and Fischer use their respective land for crop farming.

       In January 2014, the Johnsons asked the district court to determine that they had

acquired title to certain tracts of property through adverse possession and boundary by

practical location and asked the district court to determine the boundary line between their

land and Fischer’s land. According to the parties’ deeds, some of the tracts of property that

the Johnsons claimed ownership of through adverse possession, including the tracts in

dispute on this appeal, belonged to Fischer. In a counterclaim, Fischer claimed ownership

of two tracts of the Johnsons’ land by adverse possession and boundary by practical

location and asked the district court to determine the boundary line between his land and

the Johnsons’ land. In deciding the parties’ claims, the district court numbered the five

disputed tracts for clarity and determined, among other things, that the Johnsons had


                                             2
established adverse possession by clear and convincing evidence over Tracts 3 and 4, but

that Fischer had not met his burden of proof of establishing adverse possession of any

portion of the Johnsons’ land. Fischer moved for amended findings or a new trial. The

district court denied the motion for a new trial, but amended two findings in order to further

clarify and support its determinations regarding Tract 4. On appeal, Fischer challenges

only the district court’s determinations with regard to the Johnsons’ adverse possession

claims to Tracts 3 and 4 of his land and the district court’s denial of one of his claims of

adverse possession of the Johnsons’ land.

                                      DECISION

       The party seeking to establish adverse possession must show by clear and

convincing evidence “that the property has been used in an actual, open, continuous,

exclusive, and hostile manner for 15 years.” Rogers v. Moore, 603 N.W.2d 650, 657

(Minn. 1999); see Minn. Stat. § 541.02 (2014).           Whether the elements of adverse

possession have been established is a question of fact. Ganje v. Schuler, 659 N.W.2d 261,

266 (Minn. App. 2003). We uphold a district court’s findings of fact unless they are clearly

erroneous and give due regard “to the opportunity of the [district] court to judge the

credibility of the witnesses.” Rogers, 603 N.W.2d at 656 (quotation omitted). In reviewing

the district court’s findings, “we view the record in the light most favorable to the judgment

of the district court.” Id. A finding of fact is clearly erroneous “only if the reviewing court

is left with the definite and firm conviction that a mistake has been made.” Id. (quotations

omitted). “But whether the findings of fact support a district court’s conclusions of law




                                              3
and judgment is a question of law, which we review de novo.” Ebenhoh v. Hodgman, 642

N.W.2d 104, 108 (Minn. App. 2002).

The Johnsons’ Claim Regarding Tract 3

       Fischer’s land is located to the west and north of the Johnsons’ land and is bordered

on the west by Clear Lake County Park. There is a county ditch from Clear Lake that runs

slightly north of the southern border of the western part of Fischer’s land, but then turns

sharply to the south onto the Johnsons’ land and then continues east. At trial, Randal

Johnson described the county ditch as 35 to 40 feet wide and approximately five to seven

feet deep and stated that it gets deeper as it continues east.

       Tract 3, which was described by the district court as a “roughly 50 x 120” foot

rectangular shaped area of land, is bordered on the north by Fisher’s land, on the west by

the county ditch running south through the Johnsons’ land, on the east by a large

cottonwood tree located at a point on the deeded line even with the county ditch if it had

continued running east instead of turning southward, and on the south by the Johnsons’

land. According to the parties’ deeds, Tract 3 belonged to Fischer, but the Johnsons

claimed ownership of the tract by adverse possession. The district court concluded that the

Johnsons had established adverse possession over Tract 3 by clear and convincing

evidence.

       Fischer challenges the district court’s determination that the Johnsons established

ownership of Tract 3 by adverse possession. At trial, Randal Johnson testified that, since

the mid-1960s, his family had continuously and exclusively farmed Tract 3. Pamela

Johnson testified that she knew her husband and his father had farmed Tract 3 since


                                               4
approximately 1986. The district court found that aerial photographs of Tract 3 that were

taken in 2004, 2006, 2009, and 2010 “show that the farmland in [Tract 3] is part of the

same farming operation as the Johnsons’ 40-acre parcel immediately to the east.” In

addition, the district court received into evidence a number of Farm Service Agency (FSA)

aerial photographs of Tract 3 that were taken as early as 1950. The district court found that

one of these photographs, which was taken in 1971, seemed to show that Fischer was not

farming Tract 3 and that the other photographs, while not definitive, were not inconsistent

with the Johnsons farming Tract 3. The district court found that the photographs “were

supplemented through testimony by the [Johnsons] that they farmed the land in [Tract 3]

for as long as they can remember, and longer than the required 15 consecutive years to

establish adverse possession.” Based upon this evidence, the district court concluded that

the Johnsons “established more than the necessary 15 years of actual, open, hostile,

continuous and exclusive occupancy of [Tract 3]” and that the Johnsons had established

adverse possession of Tract 3 by clear and convincing evidence.

       In support of his contention that the district court erred in finding adverse

possession, Fischer argues that the district court’s findings with regard to Tract 3 were

inadequate because the district court merely recounted the testimony of the witnesses

without commenting on their credibility. Fischer is correct that the district court did not

specifically comment on the credibility of the witnesses, including the Johnsons. But, the

district court, after noting the testimony of the parties and their witnesses regarding their

disputed claims, specifically found that the Johnsons had “met their burden to shown

adverse possession” and were “entitled to the land and [Tract 3] based on their acquisition


                                             5
by adverse possession.” In doing so, the district court implicitly found the Johnsons’

testimony regarding their adverse possession of Tract 3 to be credible. See Pechovnik v.

Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009) (noting that the district court’s findings

“implicitly indicate[d]” that it found certain testimony credible).

       Fischer also argues that the record shows that the Johnsons’ use of Tract 3 was not

exclusive. Specifically, he claims, consistent with his testimony at trial, disputing the

Johnsons’ adverse possession claim, that he would back his farm equipment into Tract 3.

The district court found that while it was possible that Fischer backed into Tract 3 with his

farm equipment, there was no evidence that Fischer had planted his crops in Tract 3. Even

if this court were to agree that Fischer’s testimony indicated that he planted in the tract, the

district court credited the Johnsons’ testimony regarding their exclusive use of Tract 3.

Furthermore, while the district court seemed to interpret Fischer’s testimony as indicating

that he backed equipment into Tract 3, it found that this claimed entry onto the property

would have been too insignificant to defeat the Johnsons’ claim of adverse possession.

Fischer challenges this finding, arguing that if he backed into Tract 3 in any year, it would

break the adverse possession time period and preclude the Johnsons’ ownership of the

parcel by adverse possession. But, “brief and insubstantial entries” onto the disputed

property are not enough to defeat a claim of adverse possession. See Ebenhoh, 642 N.W.2d

at 109 (concluding that owner’s brief entries into disputed area to straighten a creek and

assist adverse possession claimant with his farming operation were insufficient to defeat

claim of adverse possession). Although Fisher’s testimony is not clear regarding how often

he would back his equipment into Tract 3, he indicated that he would back in with a digger


                                               6
or planter and that how far he backed into the tract varied from year to year depending on

who had started planting first. Because the record shows that Fischer’s backing into Tract

3 was only occasional and insubstantial, the district court’s finding that Fischer’s use of

the land did not defeat the Johnsons’ claim of adverse possession was not clearly erroneous.

       Finally, Fischer argues that the district court’s determination that the Johnsons

established adverse possession is inconsistent with FSA aerial photographs, which he

contends show that the Johnsons did not farm Tract 3. The district court found, contrary

to Fischer’s contentions, that “there is no physical evidence or photographs clearly showing

. . . Fischer’s crops lying in [Tract 3].” In fact, the district court found that one of the FSA

photographs “seems to show that Fischer was farming land on a line consistent with the

extension of the line of the ditch to the cottonwood tree,” which was consistent with the

Johnsons’ testimony that they, and not Fischer, farmed south of that line. In rejecting

Fischer’s claim that the FSA drawings on the photographs were indicative of his ownership

and possession of Tract 3, the district court noted that these FSA photographs contain a

disclaimer, which states that the drawings on the photographs were not meant to be

dispositive of actual ownership.       Rather than accepting these FSA photographs as

determinative of the issue of whether there was adverse possession, the district court

appears to have been persuaded by the evidence of other aerial photographs of Tract 3,

which had been taken in 2004, 2006, 2009, and 2010, and which “clearly show[ed]” that

Tract 3 was “part of the same farming operation as the Johnsons’ 40-acre parcel

immediately to the east.” In light of our deference to the district court’s credibility

determinations and ability to weigh the evidence, Thorson v. Comm’r of Pub. Safety, 519


                                               7
N.W.2d 490, 493 (Minn. App. 1994), we conclude that the district court did not err in

rejecting Fischer’s arguments regarding the FSA photographs and in finding that other

aerial photographs supported the Johnsons’ adverse possession claim to Tract 3.

The Johnsons’ Claim Regarding Tract 4

       Tract 4 is a narrow triangle of land running the length of the northern border of the

Johnsons’ 40-acre parcel, which is bordered to the north by Fischer’s land. In claiming

ownership of Tract 4, the Johnsons argued that the northwest corner of their parcel should

be an iron post located 18.5 feet north of the deeded corner, connected by a straight line to

the deeded northeast corner of their parcel. The district court concluded that the Johnsons

had established adverse possession over Tract 4 by clear and convincing evidence.

       Fischer challenges the district court’s conclusion that the Johnsons established

ownership of Tract 4 by adverse possession. Although Fischer testified that he had always

farmed further south than the iron post, Randal Johnson testified that he had always farmed

up to the iron post in the northwest corner. Pamela Johnson also testified that she

remembered using posts as the northwest corner of the parcel dating back to the early or

mid-1990s. The district court credited the Johnsons’ testimony. The district court also

found that the aerial photographs from 2004, 2009, and 2010 confirmed that the Johnsons’

crops were planted on a line that runs at a slight diagonal from the northeast corner of the

Johnsons’ parcel to the iron post located north of the parcel’s northwest corner. Based

upon these photographs and the Johnsons’ credible testimony, the district court determined

that the parties consistently farmed on their respective sides of the line extending from the

iron post in the northwest corner to the deeded northeast corner. We defer to the district


                                             8
court’s credibility determinations. Rogers, 603 N.W.2d at 656. Given the district court’s

acceptance of the Johnsons’ testimony regarding their farming practices, the district court

did not err in determining that the Johnsons established ownership by adverse possession

over Tract 4.

Fischer’s Counterclaim Regarding Tract 4

       Fischer asserted a counterclaim regarding the opposite end of Tract 4, seeking to

establish ownership by adverse possession over a portion of the Johnsons’ land by moving

the northeast corner of the Johnsons’ 40-acre parcel 8.1 feet south of the deeded corner.

Fischer contended that the boundary of the Johnsons’ parcel should line up with the

property line of the parcel of land across a county road to the east. Randal Johnson testified

that, until 2011 or 2012, Fischer had never planted his crops south of the surveyed corner.

The district court credited Randal Johnson’s testimony and denied Fischer’s counterclaim.

       Fischer appeals from the district court’s denial of his adverse possession claim

regarding the northeastern corner of the Johnsons’ parcel. Fischer claims that the parties

agreed that the property line should be at the middle of the field approach that connects the

parties’ land to the adjacent county road and that therefore the undisputed evidence requires

that the middle of the field approach be deemed the northeast corner of the Johnsons’

parcel. Randal Johnson testified that the boundary line between his and Fischer’s property

at the northeast corner of his property was “always” in the center of the field approach that

connected the parties’ fields to the adjacent county road. Fischer testified that he “was

always told to farm to the Sportsman’s 40 line,” the northern border of the tract of land

located directly to the east across the county road from the Johnsons’ parcel. Fischer


                                              9
contends that his testimony regarding the northeast corner is consistent with Randal

Johnson’s and that, therefore, the undisputed evidence establishes that the parties used the

center of the field approach as the dividing line for more than 15 years. Fischer impliedly

argues that the center of the field approach is south of the deeded northeast corner of the

Johnsons’ parcel.

       However, Fischer points to no evidence in the record showing that the center of the

field approach is south of the deeded corner. Furthermore, Randal Johnson testified that

Fischer planted south of the surveyed northeast corner for the first time in 2011 or 2012,

and the district court credited this testimony. Because the record does not support Fischer’s

contention that the “undisputed evidence” shows that the parties had used a point south of

the deeded northeast corner as the corner for over 15 years, the district court properly

determined that Fischer failed to establish adverse possession over any part of the

Johnsons’ 40-acre parcel.

       Affirmed.




                                             10
