This opinion will be unpublished and may not be cited except as provided by Minn.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 UNPUBLISHED OPINION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.