[1]

North Dakota Supreme Court

[2]

No. 20010149

[3]

2002 N.D. 38, 640 N.W.2d 454, 2002 ND 38, 2002.ND.0000036 <http://www.versuslaw.com>

[4]

February 22, 2002

[5]

REINHOLD GRUEBELE AND MARION GRUEBELE, PLAINTIFFS AND APPELLEES
v.
LAWSON GERINGER, DEFENDANT AND APPELLANT

[6]

Joseph F. Larson II of Larson Law Firm, P.O. Box 1599, Jamestown, N.D. 58402-1599, for defendant and appellant. David R. Bliss of Bliss Law Office, P.O. Box 1854, Bismarck, N.D. 58502-1854, for plaintiffs and appellees.

[7]

The opinion of the court was delivered by: Neumann, Justice.

[8]

Appeal from the District Court of Kidder County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

[9]

AFFIRMED.

[10]

[¶1] Lawson Geringer appeals from a judgment quieting title in a piece of property owned by Reinhold and Marion Gruebele. We conclude the trial court did not err in finding Geringer failed to establish ownership of the disputed property under the doctrine of adverse possession, and we affirm.

[11]

I.

[12]

[¶2] Reinhold and Marion Gruebele and Lawson Geringer own adjacent property in Pettibone, North Dakota. On September 1 8, 2000, the Gruebeles began an action against Geringer to quiet title to a disputed piece of property. The dispute involves ownership of a garage located on the property line between Geringer's property ("Tract 1") and the Gruebeles' property ("Tract 2"). The parties do not dispute that the garage sits on the property line.

[13]

[¶3] The garage was built in 1959 or 1960 by John and Katie Pleines, the owners of Tract 1 at that time. In 1975, Raymond Guthmiller purchased Tract 1 from the Pleines. During Guthmiller's ownership, it was determined the garage sat on the property line. The owners of Tract 2 at that time, John and Elizabeth Guthmiller, gave Raymond Guthmiller permission to keep the garage at its location, and the two adjacent owners shared the garage. Henry Wallenvein purchased Tract 1 from Raymond Guthmiller in 1977. Wallenvein heard rumors the garage was on the property line after he had purchased the property. The Gruebeles purchased Tract 2 in 1994, and stored gardening tools, a boat, and a pickup in the garage. In 1996, Wallenvein sold Tract 1 to Geringer, as the high bidder over the Gruebeles. At the sale, the Gruebeles removed their gardening tools from the garage and informed Geringer the garage was on the property line and would have to be moved. In November 1998, the Gruebeles wrote to Geringer telling him to move the garage.

[14]

[¶4] A trial was held on February 9, 2001. The court found that the garage was determined to be on the boundary line in 1975, and has been shared by the adjacent owners since then, defeating any claim of adverse possession based on a failure to show exclusive and continuous possession of the property. The trial court concluded the Gruebeles are the rightful owners of Tract 2, and ordered title to the property quieted as to Geringer's claims. Geringer appeals.

[15]

II.

[16]

[¶5] Geringer argues the trial court erred in finding he did not adversely possess the property because his possession was not exclusive and continuous. Geringer claims an adverse claimant's possession does not have to be absolutely exclusive in order to satisfy the exclusivity condition of adverse possession. Geringer contends that a use permitted by neighborly courtesy does not defeat the exclusivity requirement of adverse possession.

[1]

SUPREME COURT OF NORTH DAKOTA

[2]

Civil No. 10,376

[3]

1983.ND.168 <http://www.versuslaw.com>, 339 N.W.2d 79

[4]

October 3, 1983

[5]

TORKEL S. TORGERSON AND MARIE TORGERSON, PLAINTIFFS AND APPELLEES
v.
TORKEL S. ROSE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNE E. ROSE, ALSO KNOWN AS ANNA TORGERSON ROSE, DECEASED, AND TERRYL A. SNOW, DEFENDANTS AND APPELLANTS AND DENNIS R. ROSE, CHARLOTTE G. KENT, TORKEL S. ROSE, AND ALL OTHER PERSONS UNKNOWN CLAIMING ANY ESTATE OR INTEREST IN OR LIEN OR ENCUMBRANCE UPON THE PROPERTY DESCRIBED IN THE COMPLAINT, DEFENDANTS

[6]

Appeal from the District Court of Rolette County, the Honorable Douglas B. Heen, Judge.

[7]

Maureen White Eagle, of Foughty, Christianson & Thompson, Devils Lake, for plaintiffs and appellees.

[8]

J. Thomas Traynor, Jr., of Traynor, Rutten & Traynor (on brief), Devils Lake, for defendants and appellants.

[9]

Before Pederson, J., Paulson, S.j., Sand, J., Erickstad, C.j. Opinion of the Court by VandeWalle, Justice. Paulson, J., sitting as Surrogate J.

[10]

The opinion of the court was delivered by: Vandewalle

[11]

VANDEWALLE, Justice.

[12]

This is an appeal by Torkel S. Rose and Terryl A. Snow from a district court judgment quieting title to a parcel of land in Rolette County in Torkel S. Torgerson *fn1 and Marie Torgerson. We affirm.

[13]

Torkel S. Torgerson and his sister, Anna Torgerson Rose, grew up in the Rolette area on the family farm. At all pertinent times, the brother and sister relationship between the two was cordial and very close. Following their parents' deaths, Torkel and Anna became owners of the farm, and by mutual agreement, Torkel was allowed to farm the original farmstead.

[14]

Torkel subsequently purchased approximately 156 acres of land, *fn2 which is the subject matter of this litigation, from Wilfred Wells Budd by a warranty deed dated July 2, 1941. The deed was duly recorded on September 19, 1941. Torkel had leased and farmed this land, which is located near the family farm but is not part of the lands originally owned by the parents of Torkel and Anna, for two or three years prior to the purchase. Torkel borrowed $100 from Anna which he applied to the $700 purchase price of the land, but later repaid the loan. In turn, Anna used Torkel's checking account for her banking activities. Following his purchase of the property, Torkel fenced in the land.

[15]

On November 17, 1943, Torkel married Marie Torgerson. Anna also married, and in 1947, she and her husband, Ray Rose, moved to Oregon with their family. Each year, the Rose family returned to the Rolette area for a short period of time to assist Torkel and Marie in their harvesting and farming operations. No payments were ever accepted for their help. Torkel continued to farm the parcel until October 1966, when he lost his eyesight.

[16]

When Torkel became blind, one of Anna's sons, Dennis R. Rose, returned to North Dakota at Anna's request to help Torkel and Marie, who have no children, complete the 1966 fall farm work. Dennis left the farm briefly when his father, Ray, died on October 23, 1966, but he returned during the winter to help with the chores, and again with his brother, Torkel S. "Bud" Rose, in the spring of 1967 to seed, and later in the summer to harvest, the crop.

[17]

Since 1968, Kermit Knudson has, with one exception, continuously farmed the disputed property as a tenant. For a short period during the early 1970s, Bud attempted to farm the land. Conflicting testimony indicates that, at the time, Bud was interested in either purchasing Torkel's interest in the farm or renting the land. Bud and Anna, however, returned to Oregon after having spent only two weeks at the farm and Knudson once again was listed as operator of the farm in the records of the County Agriculture Stabilization and Conservation Service Office.

[18]

Following Torkel's acquisition of the parcel of land in 1941, and after his marriage to Marie, the couple paid all real estate taxes and paid for all upkeep of the property. They continuously maintained possession of the property, farmed the parcel, and retained all the profits from its operation. During the entire period, wheat-acreage reduction payments were divided between the Torgersons and Knudson according to the share percentage of their lease. In 1949 and 1964, Torkel and Marie executed oil leases covering the land and in 1966 they also executed a wetlands lease for a consideration of $1,100. Torkel and Marie never asked Anna to share in payment of any farming costs, upkeep, or taxes, nor did Anna contribute to the payment of such expenses. Anna never attempted to supervise farming activities concerning the land nor did she demand a share of the farm income, leasing income, or rent, or demand that she be given possession of the premises. On one occasion, when grain prices were favorable, Torkel sent Anna a check for $750 as a Christmas present along with a note stating that he wanted to show her what 100 bushels of durum were worth. Anna did not cash the check and sent it back to Torkel.

[19]

On March 30, 1980, Anna died in Oregon. While going through Anna's possessions following her death, Bud discovered an unrecorded warranty deed dated May 9, 1944. This deed, allegedly signed by Torkel and Marie, conveyed the disputed parcel of land in this case to Anna in consideration of the sum of "One Dollar and other good, valuable [ sic ] and sufficient considerations." Also discovered among Anna's possessions was the July 2, 1941, warranty deed by which Wilfred Wells Budd originally conveyed the property to Torkel. Bud, the personal representative of his mother's estate, then had the May 9, 1944, deed recorded in the office of the Register of Deeds of Rolette County on September 25, 1980. Upon learning of the recording of the deed, Torkel and Marie claimed that it was a forgery. Although Anna specifically described and devised two pieces of Oregon property in her will, no mention is made of the North Dakota property.

[20]

In a summons and complaint dated November 17, 1980, Torkel and Marie brought an action seeking to quiet title to the disputed parcel of property. They alleged that, to their knowledge, they never signed the deed and, further, that if they did sign the deed, no effective delivery of the deed to Anna occurred. They also claimed title to the property through adverse possession. The defendants counterclaimed to have title quieted in them.

[21]

Bud, Dennis, Terryl A. Snow, and Charlotte G. Kent, who are Anna's four children and heirs to her estate, were named as defendants to the suit. In January 1981, Dennis and Charlotte assigned whatever claims they may have had to the property to Bud and Terryl, who agreed to bear all litigation expenses. Dennis and Charlotte later stipulated in writing that title to the property could be quieted in Torkel and Marie and their answers and appearances were withdrawn.

[22]

The case was tried to the court without a jury on July 27, 1982. In a memorandum opinion dated November 20, 1982, the trial court assumed for the purposes of its decision that the deed was not a forgery and that it was properly executed and delivered, but determined that Torkel and Marie had reacquired title to the property by adverse possession. Judgment quieting title in Torkel and Marie was entered by the trial court on December 6, 1982. Bud and Terryl appealed from this judgment.

[23]

The following issues are raised on appeal: (1) whether or not the doctrines of after-acquired title and estoppel by deed barred Torkel and Marie as grantors from quieting title against the grantee Anna's heirs; (2) whether or not the trial court erred in determining that Torkel and Marie held the property in question adversely to the rights of Anna; and (3) whether or not the trial court properly excluded as hearsay statements purportedly made by Anna to the effect that she owned the property in question. *fn3