This is an action by Caroga Realty Company as owner and Greyhound Lines, Inc.,
The trial court determined, after trial without a jury, that plaintiffs were not entitled to relief. They appeal from the judgment entered accordingly and seek its reversal with directions to the trial court to determine that plaintiffs were in possession of the easement above referred to on January 1, 1948; that they and their predecessors in title had been in open and adverse possession of the right-of-way constituting said easement for more than 15 years prior to the commencement of the action; that the provisions of the Marketable Title Act, Minn.St. 541.023, do not invalidate the rights of the plaintiffs in and to the right-of-way easement nor deny them any remedy for enforcement thereof; and that plaintiffs are entitled to the relief prayed for in their complaint.
The right-of-way in question is located within the city block in downtown Minneapolis bounded by First Avenue North on the northwest side, by Eighth Street on the southeast side, by Hennepin Avenue on the southwest side, and by Seventh Street on the northeast side. The claimed right-of-way easement runs from First Avenue North toward Hennepin Avenue to about the middle of the block. This right-of-way came into being in 1883 through the execution of a written instrument, recorded in the office of the register of deeds of Hennepin County, whereby one Shadrach Parsons and his wife acquired "a perpetual use and right-of-way" over the strip of land 11 feet wide and 136 feet long fronting on First Avenue North and contiguous to and adjoining the southwest side of the property then owned by the Parsons as the dominant tenant. The Parsons property thereafter passed by inheritance and purchase to Alice Parsons Taylor, who conveyed it in 1936, by a conveyance in which the real estate description included the right-of-way easement, to Stacy Brothers & Merrill Company. Stacy leased the property to Greyhound, which owned the tract adjoining the Parsons tract on the northwest side. Greyhound thereupon took possession of the premises and constructed an extension of its bus depot thereon.
In 1956 Stacy Brothers & Merrill Company conveyed the Parsons tract, together with this right-of-way, to Greyhound, which in turn conveyed the same to plaintiff Caroga Realty Company. Caroga then entered into a lease with Greyhound for the use of the premises and this right-of-way for a term of 25 years.
In 1887 the then owner of the servient tenement conveyed a parcel of land 72 by 43 feet lying to the rear of the dominant tenement, together with "right-of-way as an alley" for use of occupants and owners of that parcel and lots fronting on Hennepin Avenue but subject to the existing right-of-way easement, the right-of-way described coinciding with the right-of-way granted to Parsons except that it was 12 feet rather than 11 feet wide.
Subsequent conveyances and mortgages of the servient tenement, including mortgages in 1948 by defendant Drolson Company,
Plaintiffs agree that the trial court's findings of fact accurately set forth the "background evidence" summarized above, and accept the following finding pertaining to use of the claimed right-of-way:
The trial court also made the following findings:
As conclusions of law the trial court determined that plaintiffs were not entitled to relief and that the action should be dismissed upon the merits; that by operation of Minn.St. 541.023, the easement claimed has conclusively been presumed to have been abandoned and is therefore barred; and that the premises are entitled to and should be relieved of the burden of said easement.
Plaintiffs concede the correctness of all findings of fact except the last one quoted above. They object that this finding does
1-2. Rule 52.01, Rules of Civil Procedure, so far as pertinent here, reads as follows:
Furthermore, the reviewing court is required to take that view of the evidence which is most favorable to the trial court's findings, Camenker v. Greene, 251 Minn. 106, 86 N.W.2d 708, and they will not be disturbed on appeal unless they are manifestly and palpably contrary to the evidence. In re Petition of Lippmann, 249 Minn. 1, 81 N.W.2d 100; Ketterer v. Independent School Dist. No. 1, 248 Minn. 212, 79 N.W.2d 428. Thus this court will not reverse a finding having evidentiary support even though it might find facts differently if permitted to pass on them.
3. It is not within our province to go into an extended discussion of the evidence to prove or demonstrate the correctness of the findings of the trial court. The duty of this court is fully performed when it has fairly considered all the evidence and from it has determined whether it reasonably supports the findings. Maust v. Maust, 222 Minn. 135, 23 N.W.2d 537; Board of Education of City of Minneapolis v. Sand, 227 Minn. 202, 34 N.W.2d 689. In the trial of cases like this one, the trial court has the primary responsibility of determining the fact issues, and in reviewing findings we are and should be guided by the fact that much must necessarily be left to the sound judgment and discretion of that court, which has the advantages, not possessed here, of observing the witnesses, fully hearing their testimony, and thus acquiring a thorough familiarity with all the circumstances of the controversy. Furthermore, where decisive facts found by the trial court are sustained by the evidence, the supreme court need not discuss specifically other challenged findings which would not change the result. Corah v. Corah, 246 Minn. 350, 75 N.W.2d 465; 1 Dunnell, Dig. (3 ed.) § 414.
Essentially, the question for this court is whether the evidence as a whole reasonably tends to support the findings. If it does, they should not be disturbed. We must be guided by the rule that when an action is tried by a court without a jury, its findings of fact are entitled to the same weight as the verdict of a jury and will not be reversed on appeal unless they are manifestly and palpably contrary to the evidence, a rule applicable whether the appeal is from a judgment or from an order granting or denying a new trial and whether the evidence is oral or documentary. Erickson v. Turnquist, 247 Minn. 529, 77 N.W.2d 740; State, by Peterson, v. Bentley, 245 Minn. 334, 71 N.W.2d 780; State, by Burnquist, by Fischer, 245 Minn. 1, 71 N.W.2d 161; Lindahl v. State, 244 Minn. 506, 70 N.W.2d 866; Dempsey v. Meighen, 251 Minn. 562, 90 N.W.2d 178; Inland Products
4. In support of their claim that separately stated findings of fact were necessary to show that they did or did not have possession of the right-of-way for purposes of the Marketable Title Act, plaintiffs cite State, by Attorney General, v. Riley, 208 Minn. 6, 293 N.W. 95. They characterize the finding in which the trial court stated that the evidence failed to support their claim that they were in possession or making such use of the easement as to be considered in adverse possession of it on January 1, 1948, as in effect a conclusion of law.
In the Riley case this court stated (208 Minn. 8, 293 N.W. 96):
In Martens v. Martens, 211 Minn. 369, 1 N.W.2d 356, this court said that where it appears that all issues have been decided by a trial court without a jury, this court was not required to reverse simply because the trial court might well have gone more into detail in its decision.
In the Martens case Mr. Justice Olson, speaking for this court, said (211 Minn. 371, 1 N.W.2d 358):
In Mienes v. Lucker Sales Co. 188 Minn. 162, 246 N.W. 667, this court noted that § 9311 required a decision, after trial without a jury, establishing and classifying the controlling facts and law of the case, and added that, if possible, the facts should be found and stated so fully and clearly that either litigant can have the case adequately reviewed on appeal without bringing up the evidence. However, we went on to say (188 Minn. 166, 246 N.W. 669):
The finding complained of here also could have been more detailed. We are satisfied, however, that it and the other findings constituted an adequate determination of the fact issues before the trial court.
5-6. The questions thus presented are whether all the evidence in the record, taken as a whole, concerning use of the alley by Greyhound's express customers and its own buses requires a finding that plaintiffs were in possession of the right-of-way on January 1, 1948, so as to excuse their failure to file notice of claim pursuant to Minn.St. 541.023, subd. 6, and whether the evidence concerning the nature, notoriety, and adversity
With respect to the use of the right-of-way, the record shows that between 1926 and June 1936 there was in operation on the tract to which the right-of-way was appurtenant an auto parking and auto washing business and a hamburger shop. The unimpeached testimony of Wave Harris, who with his father operated the parking business on this tract between 1932 and 1936, quite conclusively established that between those years there was a high board fence along the southerly line of the tract which extended to the rear of the lot and had no openings except a small door at the rear for the use of pedestrians. The testimony of Mr. Harris further indicates quite positively that this parking lot had its own exclusive entrance on First Avenue North and that no cars could drive from the right-of-way or private alley onto the parking lot or vice versa because of the existence of the fence. It would appear that the owners and tenants of the Parsons tract made no use of the right-of-way easement and completely abandoned its use for several years prior to 1936.
On July 1, 1936, Stacy Brothers & Merrill Company entered into a new lease with Greyhound, for a term of 20 years commencing on July 1, 1936, covering both the premises of the original bus depot site, adjacent to the Parsons tract on the northwest, and the latter tract. This lease did not include in its description of the land demised the easement involved in this litigation and did not attempt to lease to the tenant any appurtenances or hereditaments appertaining to that land. This lease required erection by the lessor of a terminal building to cover the entire leased premises and the plans for the building presented to the building inspector's office showed that there was to be a ramp cut approximately 28 feet in width at the rear of the building to be erected, but no part of which was to extend into the private alley. More than 3 weeks after the lease of July 1, 1936, was entered into, Alice Taylor League, formerly Alice Parsons Taylor, transferred by a warranty deed dated July 23, 1936, and filed July 24, 1936, to Stacy Brothers & Merrill, Inc., the Parsons tract together with a perpetual right-of-way over the strip of land 11 feet wide which is the subject of this litigation.
Plaintiffs' witnesses testified that during the years 1936 to 1950, when Greyhound's express window faced First Avenue North, on occasion, when the curb parking space on First Avenue was filled, Greyhound customers pulled into the alley and parked their cars briefly while delivering express packages. The testimony was varied as to the frequency and duration of such use, if any, and it was almost uniformly admitted that when express customers did use the alley for temporary parking purposes, they did so without any knowledge as to whether it was a public or private alley and without any instructions from Greyhound or its employees to use it. A search of the record indicates that no so-called express or package customers were called by plaintiffs as witnesses to prove such alleged use of the alley. In later years, when parking in front of the Greyhound package window on First Avenue North was prohibited between 4 p.m. and 6 p.m. the express customers had trouble parking between those hours and, according to Greyhound's witnesses, used the right-of-way almost daily. Several witnesses who worked in the stores on Hennepin Avenue which were served by the alley during this period testified, however, that they never saw express customers parking in the alley and that if such parking did in fact occur with any significant frequency it would have blocked deliveries to their stores. There is evidence in the record that there were "NO PARKING" signs posted in the alley. From November 1950
The evidence about the use of the alley by Greyhound buses for temporary parking for the purpose of loading and unloading passengers on special camp or military charters is in conflict. Witnesses presented by plaintiffs to establish such use, almost all present or former Greyhound employees, were not able to testify with certainty concerning its regularity and frequency. As an example, John O. Junkin, who worked for Greyhound from 1925 to 1958, testified on cross-examination that the alley was used for loading camp charters only on "rare occasions." On redirect examination he attempted to deny this admission. However, none of the employees of Greyhound who directly participated in or supervised these claimed loadings in the alley had any authority or directions from their superiors in the company to do so, nor did they ever use it other than with the thought that it was a public alley being temporarily used by Greyhound for its convenience in the same manner as any other public alley might be used. Plaintiffs introduced no written records to show either directives to employees to load in the alley or as historical evidence that such loadings did in fact occur in the alley. The testimony of plaintiffs' own witnesses made no greater claim to use of the alley for its chartered buses than that such use was irregular, to meet temporary needs, and was for very short intervals of time.
A number of defendants' witnesses, who had almost daily opportunity to observe the use of the alley from 1921 to 1963, testified that they never saw buses use the alley on any occasion. There is some evidence that during the period from 1926 to 1936, when a parking lot occupied the lot between the original depot and the alley, no use of the alley whatsoever was made by Greyhound. It is contended by defendants that the right-of-way plaintiffs claim to possess became useless and worthless in 1924 when the alleyway leading from its exit to Hennepin Avenue was blocked off by the erection of a building on the Hennepin Avenue entrance to the alleyway. The owner of the Parsons lot could no longer drive through the alleyway to Hennepin Avenue and, defendants contend, could have had no further use for the easement. They point to the erection of the high board fence on the dividing line between the Parsons lot and the right-of-way as proof that the right-of-way was abandoned as utterly valueless to the lot.
Plaintiffs contend that their witnesses gave positive testimony concerning use of the alley both by Greyhound's customers and its buses, which must prevail over the negative testimony offered by defendants' witnesses. They cite O'Leary v. Wangensteen, 175 Minn. 368, 221 N.W. 430, as requiring this result. In this case, however, unlike the O'Leary case, plaintiffs' witnesses were impeached and contradicted and their testimony was often not consistent. In stating the rule relied on by plaintiffs, this court in the O'Leary case stated the converse of that rule as follows (175 Minn. 372, 221 N.W. 432):
The trial court was, of course, the sole judge of the credibility of the witnesses and the weight, if any, to be given to their testimony. Here, in view of the weaknesses in plaintiffs' testimony, the trial court properly gave consideration to the "negative testimony" presented by defendants. Such testimony, though negative in form, may be "affirmative in substance," Cotton v. Willmar & S.F. Ry. Co. 99 Minn. 366, 369, 109 N.W. 835, 837, 8 L.R.A., N.S., 643, 650, 116 Am.St.Rep. 422, 425, 9 Ann.Cas. 935, 937, and is sometimes the only available evidence. In Purdes v. Merrill, 268 Minn. 129, 128 N.W.2d 164, 165, this court held:
In Forde v. Northern Pacific Ry. Co. 241 Minn. 246, 252; 63 N.W.2d 11, 16, this court pointed out that negative evidence must be something more than equivocal evidence of the nonexistence of a fact and emphasized that such evidence has probative value when it is "based upon an attentive and purposeful observation by a credible witness in full possession of his faculties." Certainly defendants' witnesses in this case were in a position to hear and see that which they testified to. The record indicates that they were normal witnesses and that there was nothing to divert their attention to the extent that they were unable to take into full account their surroundings. The credibility of their testimony, as well as that of plaintiffs' witnesses, was therefore a fact issue to be determined by the trial court.
7-8-9. Section 541.023, subd. 5, of the Marketable Title Act provides:
This court discussed the possession required by § 541.023, subd. 6, to avoid the presumption of abandonment created by § 541.023, subd. 5, in B.W. & Leo Harris Co. v. City of Hastings, 240 Minn. 44, 49, 59 N.W.2d 813, 816, saying:
In view of the holding in the Harris case, the trial court could well have determined that the testimony of plaintiffs' witnesses relating to the use of the alley by Greyhound and its customers, given full credence, did not establish possession which is open and exclusive, unequivocal, notorious, and unambiguous. Plaintiffs, however, cite Merrick v. Schleuder, 179 Minn. 228, 228 N.W. 755, as an authority which recognized the use of an alley by the plaintiff and by customers of the plaintiff as acts constituting adverse possession. In considering the evidence of public use of the area in controversy in the Merrick case, this court stated (179 Minn. 231, 228 N.W. 756):
The court then went on to state the general rule, inapplicable because of the special circumstances which existed there (179 Minn. 231, 228 N.W. 756):
None of the special circumstances of Merrick exist in this case. Neither plaintiffs nor any of their predecessors in title ever built any structure abutting onto the right-of-way.
That knowledge of the existence of an easement is an element in establishing possession under § 541.023, subd. 6, was indicated by this court in United Parking Stations, Inc. v. Calvary Temple, 257 Minn. 273, 277, 101 N.W.2d 208, 211, one of the
We conclude that the court properly determined that neither plaintiff was in possession of the right-of-way when the Marketable Title Act went into effect or was then making use of it so notorious as to be considered adverse possession; that by operation of § 541.023 the easement is conclusively presumed to have been abandoned and is therefore barred;
SHERAN, Justice (concurring specially).
While I do not think that the rule of B.W. & Leo Harris Co. v. City of Hastings, 240 Minn. 44, 59 N.W.2d 813, can be applied in the present situation where the interest involved is a limited easement, I concur in the result because of the trial court's finding to the effect that plaintiffs were not making observable use of the easement on January 1, 1948, so as to constitute possession within the meaning of Minn.St. 541.023, subd. 6, as construed in Wichelman v. Messner, 250 Minn. 88, 103, 83 N.W.2d 800, 814; and United Parking Stations, Inc. v. Calvary Temple, 257 Minn. 272, 101 N.W.2d 208.
OTIS, Justice (concurring specially).
I concur in the result and in the opinion of Mr. Justice SHERAN.