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Benson v. Feland Brothers Properties

Supreme Court of North Dakota

January 22, 2018

Craig Benson, Plaintiff and Appellant
v.
Feland Brothers Properties, Danny & Gwen Aftem, Defendants and Appellees and Brenda Benson, Plaintiff and all persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the Complaint, whether as an heir, devisee legatee, creditor, or personal representative of a deceased person, or under any other title of interest, Defendants

         Appeal from the District Court of Bottineau County, Northeast Judicial District, the Honorable Lee A. Christofferson, Judge.

          Craig Benson, self-represented, Minot, N.D., plaintiff and appellant.

          Arne F. Boyum, Rolla, N.D., for defendants and appellees.

          OPINION

          Tufte, Justice.

         [¶ 1] Craig Benson ("Benson") appeals from the district court's judgment defining the boundaries of Outlot 11 and awarding Feland Brothers Properties ("the Felands") the northern portion of Outlot 53 through adverse possession. We affirm, concluding the district court did not clearly err in defining the boundaries of Outlot 11 or in concluding the Felands have adversely possessed the northern portion of Outlot 53.

         I

         [¶ 2] In 1951, Ruby Benson, Benson's grandmother, acquired a 600 by 450 foot tract to the west of Whiskey Bay on Lake Metigoshe. This tract of land was subdivided into several lots. The Felands own Outlot 10, Craig and Brenda Benson ("the Bensons") own Outlot 53, and Danny and Gwen Aftem ("the Aftems") own Outlot 11. These lots were the subject of the following conveyances relevant to the issues on appeal. Outlot 10 was conveyed by A.R. Taralseth to Francis and Gloria Olson ("the Olsons") in 1980, then to Wade and Mary Olson in 1997, who sold to the Felands the next day. Outlot 53 was conveyed by Ruby Benson to Richard Benson (Craig's father) in 1978, then to Craig Benson in 2010. Outlot 11 was conveyed by Ruby Benson to Taralseth in 1953, then to Raymond Stenseng and Curtis Foss in 1970, then to Foss in 1978, and finally to the Aftems and family in 2003.

         [¶ 3] Outlot 53 is the result of a survey completed by Robby Berard of Ackerman Surveying in 2010. The plat shows that Outlot 53 consists of a northern portion (boomerang-shaped land to the east of Outlot 10) and a southern portion which is shown as "Outlot 53" on the plat. [1] It is the northern portion of Outlot 53 lying between Outlot 10 and Whiskey Bay that is disputed in the adverse possession claim.

         [¶ 4] The northern portion of Outlot 53 was largely ignored by the record owners, Richard Benson and then Craig Benson. Chris Romfo, a neighbor, testified that he rented Outlot 53 from Richard Benson for about nine years and understood that it was only for the southern part of Outlot 53. Romfo testified that Richard Benson never mentioned owning the northern part of Outlot 53. Although Craig Benson testified that he and his family regularly stayed at the lake for many years, he was vague as to the use of the northern part. He testified that he didn't build anything on the northern lot, except for a small bridge across the creek, apparently connecting the north and south portions of the lot. This bridge was later removed. After the 2010 survey was completed, he placed "no trespass" signs on the northern lot and cut trees down. He also began warning others not to use the property.

         [¶ 5] The Olsons made a number of improvements to the northern portion of Outlot 53. The Felands testified that the Olsons built a rock wall and fire pit and drilled a well. The Felands made use of the northern portion of Outlot 53 as well. They hired people to mow the lawn, made use of the yard, used the well, put their own dock in the water, docked a paddle boat, placed a picnic table on the dock, and parked a mobile home trailer on part of the land. They have paid waterfront taxes for 50 feet of bay waterfront land since at least 2003. Greg Feland testified that according to the Bottineau County records, Wade Olson had paid waterfront taxes as well. As platted, Outlot 10 does not have any waterfront on Whiskey Bay that would give rise to waterfront taxes.

         [¶ 6] A creek runs along the southeast boundary of Outlot 11 (L-2 and L-3 on Outlot 53's plat), which separates Outlot 11 and Outlot 53. The creek has narrowed as a result of dredging and clearing of trees. Surveyors Berard and Anderson from Ackerman Surveying stated they were unaware of a creek when they surveyed the area and platted Outlot 53. Upon visiting the area with the parties, the district court found that the creek remained visible. Benson testified that the mouth of the creek connects with Whiskey Bay.

         [¶ 7] The Bensons sued the Felands and Aftems to quiet title in all of Outlot 53. The Felands and Aftems counterclaimed, arguing that they own the northern portion of Outlot 53 and title should be quieted in their favor. Alternatively, the Felands and Aftems argued that they acquired the northern portion of Outlot 53 through adverse possession. After a bench trial, the district court defined the southeastern boundary of Outlot 11 as the corner of L-8 and L-9 on Outlot 53's plat, awarded the Felands the northern portion of Outlot 53 on the basis of adverse possession, and quieted title to the southern portion of Outlot 53 in favor of the Bensons.

         II

         [¶ 8] Benson argues that the district court erred in defining Outlot 11's boundaries. He contends the district court should have followed the boundaries as ...


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