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HomeMy WebLinkAbout2594ax; e z CT STATE OF MINNESOTA` 1 DISTRICT COURT COUNTY OF HENNEPIN �' �� �,'° a" ! :FOURTH JUDICIAL DISTRICT .r Elizabeth L. Broin and Jan F. Broin Trustee under the Elizabeth L. Broin Revocable Trust Agreement dated December 28, 1988; t�Frks6, u, �r -Court File No. MC 03- 016594 Elizabeth L. Broin, individually, Plaintiffs, FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER FOR JUDGMENT AND V. JUDGMENT Luther M. Amundson and Kris L. Maser, Defendants. This matter came on ftrtrial wi thout a jury before the undersigned, a Judge of the above - named Court, on August 24tLd tober 28th and 29th, 2004. The parties submitted memorandums and briefs and the matter was taken under advisement on November 17, 2004. Pursuant to Minnesota Rule of Civil Procedure 52, the Court having duly considered the evidence makes the following Findings of Fact, Conclusions of Law and Order for Judgment: FINDINGS OF FACT 1. That defendants, Luther M. Amundson and Kris L. Maser, are record owners of the following real property located in Hennepin County, Minnesota, described as follows: Lot 5 and the West 15 feet of Lot 6, Block 1, Oak Ridge of Edina ( "Amundson Property "). 2. That plaintiffs, Elizabeth L. Broin and Jan K. Broin, as trustees under the Elizabeth L. Broin Revocable Trust Agreement dated December 28, 1988, are record owners of the following property located in Hennepin County, Minnesota described as follows: Lot 6, except the West 15 feet thereof, Block 1, Oak Ridge of Edina (`Broin Property "). 3. The relevant conveyances creating the chain of title for Broin Property to plaintiffs, is as follows: TRANSFER ENTERM HENNER N COUNTY TAXPAYER gERVIC%S MA c c� R 1 7 2005 r a. The Broin property was conveyed to Michael Halley Homes, Inc. by a deed dated October 29, 1985, and filed in the Office of the Hennepin County Recorder as Document No. 5055702. (Trial Exhibit 1).. ----------- b.- __Michael-Halley Homes, Inc., _conveyed -the. Broin_Eroperty_to Ronald_S. - Lan - or- and Karla K. Lankford by a deed dated September 5, 1986, filed in the Office of the Hennepin County Recorder as Document No. 5154487. (Trial Exhibit 3). c. Ronald S. Lankford and Karla K. Lankford conveyed the Broin Property to Lowell C. Broin and Elizabeth L. Broin by a deed dated June 20, 1988, and filed in the Office of the Hennepin County Recorder as Document No. 5428806. (Trial Exhibit 4). d. Elizabeth L. Broin, after her husband's death, conveyed the Broin Property to plaintiffs by a quit claim deed, acknowledged April 11, 2002. (Amended Complaint Exhibit "A -1 "). 4. The relevant conveyances creating the chain of title for Amundson Property to defendants, is as follows: a., Michael Halley Homes, Inc. conveyed the Amundson Property to Robert W. Kern and Karen M. Krutzig by a warranty deed dated June 3, 1985, filed in the Office of the Hennepin County Recorder as Document No. 5000891. (Trial Exhibit 5) b. Robert W. Kern and Karen M. Krutzig (fka Karen M. Krutzig) conveyed the Amundson Property to Steven A. Studt and Ruth Studt by a warranty deed dated July 16, 1990, filed in the Office of the Hennepin County Recorder as Document No. 5683879. (Trial Exhibit 6). c. Steven A. Studt and Ruth Studt conveyed the Amundson Property to defendants by a warranty deed dated November 23, 1992, filed in the office of the Hennepin County Recorder as Document No. 6023191. (Trial Exhibit 7). 5. The Broin Property and the Amundson Property are contiguous, the Broin Property being to the east of the Amundson Property. (Trial Exhibit 2). 6. Ownership of a triangular piece of property located at the common boundary line between the Amundson and Broin Properties is disputed between plaintiffs and defendants. 7. The legal description of the disputed parcel is as follows: That part of Lot 6, Block 1, Oak Ridge of Edina, Hennepin County, Minnesota, lying east of the West 15 feet thereof and lying Westerly of a line described as follows: Commencing at the Southeast corner of said West 15 feet; thence North 2 00 degrees 36 minutes 11 seconds West along the East line of said West 15 feet a distance of 84.53 feet; thence North 14 degrees 27 minutes 36 seconds East 35.53 feet to the North line of said Lot 6 and there terminating. 8. The home on the Amundson Property was built between September 1983, (Trial Exhibit 8) and May 29, 1985, when a Certificate of Occupancy (Trial Exhibit 10) was issued by the City of Edina. 9. The home on the Broin Property was completed September 4, 1986, when a Certificate of Occupancy was issued by the City of Edina. (Trial Exhibit 11). 10. An Aerial Photo of the Amundson Property and the Broin Property, dated April 11, 1985, (Exhibit 16 — the "Aerial Photo ") shows that, as of that date, the builder who constructed the Amundson Property, constructed it as if the common legal lot line was perpendicular to Nob Hill Road, when, in fact, the common legal lot line was angled. (Compare: Trial Exhibit 2); Certificate of Survey for Proposed Amundson House (Trial Exhibit 9 ); Certificate of Survey for Proposed Broin House (Trial Exhibit 12). 11. James Parker, a licensed engineer and surveyor, reviewed the April 11, 1985, Aerial Photo, a survey of the Broin property, dated February 14, 2003 obtained by the Broins (Trial Exhibit 64 — the "Broin Survey "), a survey of the Amundson Property, dated April 22, 1998 obtained by the Amundsons (Trial Exhibit 14 - the "Amundson Survey "), and also inspected the Amundson and Broin Properties. Using a CAD computer program he drew the relevant measurements on the Broin Survey and the Amundson Survey, and superimposed them unto the Aerial Photo to create a composite aerial survey (Trial Exhibit 17 - the "Aerial Survey ") and to prepare the legal description of the disputed. area (See Finding No. 6). 12. The Aerial Photo and Aerial Survey, as James Parker testified, appear to show, that as early as April 11, 1985: a. The Broin Property was still under construction; b. The Amundson Property was sodded, while the Broin Property was not; c. The driveway for the Amundson Property was built, in part, on a 3.9 foot wide triangle crossing the Amundson legal lot line and extending onto the Broin Property. d. A structure (Iocated on a city right of way abutting to the north of the disputed area), believed to be a mailbox, and consistent with the current location of the Amundson mailbox, was installed on the sodded area; and e. That a structure believed to be a telephone pedestal, and consistent with the current location of a telephone pedestal, was installed on the sodded area. r 13. Mrs. Broin identified the sod line on the Aerial Photo as the line demarking the Amundson and Broin Properties. She also identified the location of the mailbox on the Aerial Photo which lies within the sodded area. __.__This. Aerial -Photo _ is _clearand_convincing_e-- vidence that_the- disputed- parcel.was- occupied - -- and considered part of the Amundson Property as early as April 11, 1985, before the Broins moved into the Broin Property: a. Mrs. Broin testified that when she and her husband moved into the Broin Property in 1988, they mowed to the same mow line as their previous owner had mowed. ; b. Elizabeth Broin earlier testified she never used any part of the disputed land, (at least through 2001) and that Amundsons always did. c. Elizabeth Broin testified that from the time the Broins moved into the Broin Property, until she was advised of the encroachments by Amundson in 1998, she never regarded any part of the disputed parcel as her own. d. No credible evidence was offered to rebut that the common line of occupation changed in any manner from how it existed in 1985. 15. From the time the Amundsons moved into the Amundson Property in 1992, both the Amundsons and the Broins always regarded the disputed property as belonging to the Amundsons: a. Mrs. Broin admitted that from the time they moved into the Broin Property and through 200,1, the Amundsons always used the disputed land and that she never did. b. When the Amundsons purchased and moved into the Amundson Property, Luther Amundson testified that he believed that the disputed parcel was part of the Amundson Property, as he had no reason to believe any part of their driveway was located on the Broin Property, and visually, the lawn on the disputed parcel appeared to have been used, mowed and maintained by the Amundsons' predecessor in title, as part of the Amundson Property. c. Mrs. Broin earlier testified that from the time Amundsons moved in and through 2001, the Amundsons mowed the disputed parcel. d. Luther Amundson testified that he mowed to what he believed was his property line by using the already established "mow line" as it appeared when he first moved in; that the mow line was one mower's length to the east of the mailbox, continuing to the east of the telephone pedestal, to an evergreen located in the rear of the Amundson Property. He testified that this mow line was consistent with mowing the disputed area as shown on the Aerial Photo. e. Amundson testified that he always regarded the telephone pedestal on the disputed parcel to be located on the Amundson Property and the mailbox to be at the front of his property. Amundson testified that neither the location of the mailbox nor telephone pedestal has changed since he moved in. f. Sometime in 1994 or 1995, the Amundsons constructed a basketball hoop on the disputed parcel. Thereafter, the Amundsons' children played basketball on the disputed area. 4 ,g. Amundsons testified that he and his family, drove on, parked, shoveled and otherwise maintained that portion of their driveway located on the disputed parcel; and that plaintiffs never did. h. In October 2002, the Amundsons installed landscaping on part of the disputed _____ parcel__amdxeplaced_ their._ driveway _(changing_it_from- bitumin. from—bituminous—.to—brick--pavers)— - on the disputed parcel, widening the driveway frontage on the disputed parcel by 0.92 feet, from 3.9 feet to 4.82 feet, but still within the disputed parcel. i. " Mrs. Broin testified she never drove on, parked on, shoveled or otherwise maintained the portion of the Amundson driveway encroaching on the disputed area. j. Amundson testified that he always used, seeded, sodded, and otherwise maintained the lawn located on the disputed parcel. k. Amundsons' use and maintenance of the disputed area is consistent with the Aerial Photo of 1985.' 16. While there was contradictory testimony offered by the plaintiffs that the Broins had a portion of the lawn on the disputed area mowed when the Amundson house was vacant and up for sale, it is clear that this was never done under any claim of ownership of the disputed area: a. Mrs. Broin testified that the same person mowing her lawn mowed the disputed area "to keep the grass down" up to the mailbox, but not beyond, "to [keep] the property looking nice for the whole neighborhood ". b. From the time that the Broins moved into their house and until Amundson advised her where the actual property line was, Mrs. Broin never regarded any part of the disputed parcel as belonging to the Broin property. 17. There was also testimony offered by the plaintiffs that permission was given to the Amundsons to erect a basketball hoop on the disputed parcel, however, this testimony is contradictory and not credible: a. .Elizabeth Broin testified that Amundson requested to put up the basketball hoop in 1988. b. The basketball hoop was actually installed sometime in 1994 or 1995 (Finding No. 14. £) and is shown to have been already installed on the Amundson Survey drawn in 1998 (Trial Exhibit 14). c. Elizabeth Broin testified that neither she nor her husband ever knew they owned record title to the disputed area until the Amundson survey was presented to them in 1998. d. Mark S. Broin, with the authorization and direction of Mrs. Broin, wrote to Luther Amundson on August 28, 2001: "Neither my mother nor my father (deceased) has granted you or any previous owner any rights to possession or use of the property now being encroached upon ". (Trial Exhibit 55). 5 e. Luther Amundson denies ever requesting asking the basketball hoop or to otherwise use the disputed Permission of p ed parcel. anyone to install 1$• Defendants first obtained the ' - -- -- Amundson S - -- construction- they_intended_to_al- leviate_a water_drain1 _e_ - -- - -- urvey in 1998 in connection with certain Plaintiffs received a copy of the survey shortly thereafter. ran e- drainage revealed for the first time to both defendants and The Amundson Survey occupIlg and encroaching nto a plaintiffs that defendants were Amended Complaint 112) g p °f the Broin Property. (See Complaint and a• Mrs. Broin testified that she was "s b• Amundson testified that when he first obta�nedhhn she first received the survey surprised and thought the surveyor had made a e Amundson Survey as was unrecorded deed somewhere correcting the lot lines. �e� or that there was an 19. Even after the Amundson Survey revealed the encroachments Amundsons continued to treat and occu disputed Parcel s the disputed parcel. the Finding 15 h). Py the dis uted parcel as their own, (See, e.g. a• Amundson testified he info encroachments an need the Broins that he would d w b While there were discussions and communications , not remove any of the occupy the disputed parcel . Amundsons about how to solve the area of occupation vs. th ations between the Broins and agreement was ever reached and all' discussions concerning resolution the issue were settlement discussions a legal lot lines, no � c. Fu ns within Rule 408 of the Minn. olution or solving Further, Mark Broin admitted that Amundson never indicated R Civ. Proc. relinquishing any claim to the disputed area. d• Mrs. Broin admitted that, throughout his. dealings e was Mrs. Broin that he intended to gs, h'fi Amundson al e• After learning where the true lot aim Was own the disputed ��'aYs told never did an Gated Parcel. f. anything to claim ownership of the disputed Parcel. o testified that she 20. Plaintiffs did not commence this lawsuit until since the Aerial Photo first evidenced adverse occu Occupation August 18, 2003, well over 15 ear P on of the disputed area. years 21 • was actual, open,,hostile, continuous Use of the disputed property by the Amundsons and their predecessors for over 15 and exclusive.. Visible , - been continuousl y exercised over the land by and notorious acts of ownership have the requisite 15 years, in a man Y the Amundsons and their that o ner matched to the land's intended useandecons'stent with title, c for wners would normally conduct on the disputed parcel. From the foregoing Findings of Fact, the Court concludes: 6 'r { CONCLUSIONS OF LAW 1.._ Defendants .have_shown,- by_clear. and. convincing. evidence , -an- actual, - open, - hostile, continuous and exclusive possession of the disputed parcel for a requisite 15 years and have obtained title to the disputed parcel by adverse possession and by practical location of a boundary line, 2. The disputed parcel specifically identified, legally as follows: That part of Lot 6, Block 1, Oak Ridge of Edina, Hennepin County, Minnesota, lying east of the West 15 feet thereof and lying Westerly of a line described as follows: Commencing at the Southeast corner of said West 15 feet; thence North 00 degrees 36 minutes 11 seconds West along the East line of said West 15 feet a distance of 84.53 feet; thence North 14 degrees 27 minutes 36 seconds East 35.53 feet t the North line of said Lot 6 and there terminating. (the "disputed parcel "). 3. The Hennepin County Recorder, is hereby ordered to add the above - referenced parcel to the legal description of the Amundson/Maser property and except the same legal description from the Broin property. 4. That plaintiffs take nothing by their complaint and defendants shall have judgment for their costs and disbursements herein. And the Court makes the following: ORDER FOR JUDGMENT LET JUDGMENT BE ENTERED ACCORDINGLY AND FORTHWITH. 4 {� k . Dated this 2 i day of January, 2005. BY THE COURT: N ALLEN OLEISKY JUDGE OF DISTRICT COURT ALLEN OLEISKY JUDGE OF DISTRICT COURT JUDGMENT THE FOREGOING SHALL CONSTITUTE THE JUDGMENT AND JUDGMENT ROLL OF THE COURT. MARK S. THOMPSON, COURT ADMINISTRATOR 7 ENTERED o� — BY DEPUTY