Roth v. Meyer

20240324 - Filed 07-31-2025
NORTH DAKOTA SUPREME COURT

Substitute Opinion Pages 1-19 filed 07-31-2025

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

Mary Roth and Aric Roth,
v.

Gary Meyer; Marty Meyer, individually, and
as Co-Trustee of the Jean L. Ehnrmantrout
Residuary Trust; Medora Meyer; Carlos Meyer,
individually and as Co-Trustee of the Jean L.
Ehrmantrout Residuary Trust; Jewel Meyer;
Chet Meyer, individually, as Personal
Representative of the Estate of Anthony
Ehrmantrout and the Estate of Jean
Ehrmantrout, and as Co-Trustee of the Jean L.
Ehrmantrout Residuary Trust, and Debbie
Meyer,

Plaintiffs and Appellees

Defendants and Appellants

No. 20240324

Appeal from the District Court of Grant County, South Central Judicial District,

the Honorable Daniel J. Borgen, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and Justices
McEvers and Bahr joined. Justice Crothers filed a separate opinion concurring

and dissenting.

Jennifer M. Gooss, Hazen, N.D., for plaintiffs and appellees.

Christopher E. Rausch (argued) and Elizabeth A. Elsberry (on brief), Bismarck,

N.D., for defendants and appellants.
Roth v. Meyer
No. 20240324

Tufte, Justice.

[71] The Meyer family members and related trustees (collectively the Meyers)
appeal from the district court’s order on remand and second amended judgment.
The Meyers argue the district court erred by (1) quieting title in the Roths
because the issue was not properly before the district court or, alternatively,
because it clearly erred in finding adverse possession; (2) including additional
terms and conditions regarding access to the property; and (3) ordering Gary
Meyer to pay Mary Roth restitution for unjust enrichment. We affirm the second
amended judgment in part and reverse in part. We remand for further

proceedings consistent with this opinion.

I

[12] In Roth v. Meyer, 

, 

, we affirmed in part, reversed

in part, and remanded for further proceedings.

[13] Gary Meyer is a rancher and has raised cattle since 1962. He married
Dolores (Ehrmantrout) Meyer and the couple had three children, Chet, Carlos,
and Marty Meyer. Dolores Meyer died in 1999.

[74] Gary Meyer and Mary Roth began dating in the early 2000s. The couple
resided in Elgin, North Dakota, after a fire destroyed Gary Meyer’s residence on
the subject property. The 10-acre subject property comprises the SW1/4 SW1/4
NE1/4 of section 13-133-89 in Grant County, which is an interior parcel within
section 13. The couple built a home on the subject property where they
cohabitated from 2002 until 2022, when their relationship ended. The couple
never married but shared a bank account and ran an intermingled cattle

operation.

[15] On September 1, 1994, Anthony and Jean Ehrmantrout conveyed the

property to each other as tenants in common. The same day, the Ehrmantrouts

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made wills leaving specified property to the trustee of a trust created under the
will for distribution upon the death of the survivor to each of their
grandchildren, Chet, Carlos, and Marty Meyer. The wills did not specifically
provide for the subject property. The wills contained a clause leaving the residue,
including the subject property, to “the Trustee of Trust B.”

[16] The Ehrmantrouts died in 2001. In November 2001, Chet Meyer, as Jean
Ehrmantrout’s personal representative, distributed her estate to himself, Carlos
Meyer, and Marty Meyer as Co-Trustees of the Jean L. Ehrmantrout Residuary
Trust (Trust B) Dated 9/1/94. The deed of distribution specifically excluded the
subject property. In December 2001, Chet, Carlos, and Marty Meyer, Co-Trustees
of the Jean L. Ehrmantrout Residuary Trust (Trust B) Dated 9/1/94 conveyed
section 13, less the subject property, to Chet, Carlos, and Marty Meyer.

[17] In May 2004, Marty Meyer conveyed his interest in section 13 to Gary
Meyer via quitclaim deed. As of May 2004, the trust owned the subject property.
Gary Meyer paid taxes on the subject property from 2004 to 2009. Gary Meyer
testified he had lived on the subject property since 1962 and believed he owned
the property. He testified he mortgaged the subject property, but a mortgage on
the subject property was not received into evidence. On April 12, 2010, Gary
Meyer conveyed his interest in the subject property to Mary Roth via quitclaim
deed, and she paid the real estate taxes from 2010 to 2021. The district court
originally found Gary Meyer held title to the subject property, gained through
adverse possession, at the time he conveyed his interest to Mary Roth. See Roth,

, { 14.

[18] In July 2024, this Court remanded the case to the district court to make
further findings on adverse possession. Roth, 

, { 46. In October 2024,
the district court issued its order on remand, finding Gary Meyer owned the
subject property through adverse possession in 2010 at the time he quitclaimed
the property to Mary Roth. As a result, the court concluded Mary Roth had good
title in 2016 to quitclaim the property to her son, Aric Roth, reserving a life estate.
The court quieted title in Aric Roth and Mary Roth.

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[79] During their time together, Gary Meyer received checks from Mary Roth,
which both testified were loans. Gary Meyer was to pay Mary Roth back when
he could. Mary Roth testified she wrote eight checks to Gary Meyer between 2007
and 2009. Only two checks had “loan” written in the memo, and they were dated
August 15, 2007, and April 26, 2009. The 2007 check was for $2,500 and the 2009
check was for $50,000. Gary Meyer testified he gave Mary Roth $5,000 in cash
once, but could not remember the date or the reason for the payment. He testified
that after each cattle sale he would give Mary Roth an envelope with cash for the
sale of her cattle. Gary Meyer testified that he did not specifically remember
repaying her loans to him. In Roth, we reversed the district court’s conclusion
that Gary Meyer owed Mary Roth $52,500 on oral loan contracts, because
enforcement was barred by the statute of frauds, and remanded for consideration
of the related unjust enrichment claim. On remand, the district court found Gary
Meyer was unjustly enriched by the unpaid loans and ordered him to pay her
$52,500.

[710] The Meyers appeal from the second amended judgment, arguing the
district court erred by quieting title in the Roths, including additional terms and
conditions regarding access to the property, and ordering Gary Meyer to pay

Mary Roth restitution for unjust enrichment.

II

[11] The Meyers argue the district court erred in quieting title in the Roths
instead of the Meyer trustees. The Meyers argue the district court erred in
considering the issue of adverse possession as part of its quiet title findings
because that issue was not properly before the court on remand. Alternatively,
the Meyers argue the district court clearly erred in finding Gary Meyer had title
to the subject property by adverse possession when he quitclaimed it to Mary
Roth in 2010.

[{12] On remand, the district court must follow directions from this Court. “The

mandate rule, a more specific application of law of the case, requires the trial

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court to follow pronouncements of an appellate court on legal issues in
subsequent proceedings of the case and to carry the appellate court’s mandate
into effect according to its terms.” Walstad v. Walstad, 

, { 9, 

. We retain authority to decide whether the court fully carried out our

mandate’s terms. /d

[713] The Meyers argued during their first appeal that the district court
erroneously considered adverse possession as part of its quiet title analysis. Roth,

, J 17. We reversed and remanded “for the district court to find who
was in possession of the subject property during the relevant periods and
whether that possession was adverse to the owner for the requisite amount of
time.” Jd J 22. Our instructions required findings by the court on the evidence
in the record without further evidentiary proceedings. Jd { 1. The district court
properly considered the issue as we directed because our remand included

requirements for factfinding on adverse possession.

[14] The Meyers also argue the district court clearly erred in finding Gary
Meyer had title to the subject property by adverse possession when he
quitclaimed it to Mary Roth in 2010. This Court reviews factual determinations
in appeals from quiet title judgments under the clearly erroneous standard. Great
Plains Royalty Corp. v. Earl Schwartz Ca, 

, J 13, 

. “A
finding of fact is clearly erroneous if it is induced by an erroneous view of the
law, if there is no evidence to support it, or if, after reviewing all of the evidence,
this Court is convinced a mistake has been made.” /d (cleaned up). “The burden
of proving adverse possession rests with the person alleging it and must be
established by clear and convincing evidence.” Jorgersan v. Rase 

 (N.D. 1983). When a finding requires proof by clear and convincing evidence
in the trial court, our review on appeal applies the clearly erroneous standard
under N.D.R.Civ.P. 52(a) in the context of the required standard of proof.
Fitzgerald v. Balkowitsch, 

, 763 n.3 (N.D. 1980) (citing Zundel v.
Zundel, 

 (N.D. 1979) (discussing application of clear error
review to findings requiring clear and convincing evidence)); see also Interest of

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Sternberg, 

, 7 7, 

 (referring to “modified clearly
erroneous standard” under which “[wle will affirm a district court’s decision
‘unless it is induced by an erroneous view of the law or we are firmly convinced
the decision is not supported by clear and convincing evidence’”’); Interest of
B.A.C., 

, J 12, 

 (referring to a “more probing” clearly
erroneous standard under which we “will affirm an order for involuntary
treatment unless it is induced by an erroneous view of the law or if we are firmly
convinced it is not supported by clear and convincing evidence”); Estate of
Stanton, 

 (N.D. 1991) (review of summary judgment must

consider burden of clear and convincing evidence).

[715] We explained the proof requirements for adverse possession in our

previous decision in this case:

To satisfy the elements for adverse possession, the acts on which the
claimant relies must be actual, visible, continuous, notorious,
distinct, and hostile, and of such character to unmistakably indicate
an assertion of claim of exclusive ownership by the occupant. For
the continuous element, N.D.C.C. § 28-01-07 provides a
presumption against the adverse possession of real property unless
it appears that such premises have been held and possessed
adversely to such legal title for twenty years before the
commencement of such action. A party who adversely possesses
with or without a written instrument must hold the land
continuously for 20 years. N.D.C.C §§ 28-01-07 and 28-01-08. For the
requirements of adverse possession to be met, the true owner must
be removed from possession and kept out for the statutory period
by an open, visible, and exclusive possession of the claimant without
license or consent of the owner.

Roth, 

 (cleaned up). “Whether there has been an adverse
possession is a question of fact, which will not be reversed on appeal unless it is
clearly erroneous.” Moody v. Sundley, 

, { 11, 

.

[9116] In reversing the district court, we explained:

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The district court did not make findings on whether the
Ehrmantrouts occupied the subject property after the September
1994 grant. Nor did it make a finding on whether the Ehrmantrouts
and the Meyers had an agreement allowing the Meyers to remain on
the property after the September 1994 grant, or if the Meyers
remained on the subject property hostile to or in defiance of
Ehrmantrouts’ ownership arising from the September 1994 grant.

Roth, 

, J 21. Our remand of the quiet title issue directed the district
court “to find who was in possession of the subject property during the relevant
periods and whether that possession was adverse to the owner for the requisite

amount of time. Next, the court must find who the true owner is, to quiet title in
their favor... .” Roth, 

, { 22.

[17] On the question of who was in possession of the subject property during
times relevant to this case, the district court focused its findings on “whether the
Ehrmantrouts occupied the subject property after the September 1994 grant.”

The testimony the Court received at trial was that Gary had lived or
ran cattle on the subject property for over fifty (50) years. During
those years, there had been four houses on the property, including
the house built by Gary and Mary. The Court received no evidence
that the Ehrmantrouts utilized any part of the subject property after
the 1994 grant. Rather, the only testimony the Court received
pertained to Gary’s possession and use of the subject property,
exclusively for decades, before and after the 1994 grant.

[718] On the question of whether the possessor’s occupancy was hostile, the
district court first answered “whether the Ehrmantrouts and the Meyers had an
agreement allowing the Meyers to remain on the property after the September
1994 grant,” finding:

The next fact the Court has to find is whether the Ehrmantrouts and
the Meyers had an agreement allowing the Meyers to remain on the
subject property after the September 1994 grant. Black’s Law
Dictionary defines an “agreement” as “a mutual understanding

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between two or more persons . . .” Black’s Law Dictionary, 74 (8th ed.
2004).

Gary was clear in his testimony — he believed he owned the subject
property. He justified his belief by explaining: “I’ve lived there since
62. I assumed I owned it. I had it mortgaged. We got it out of
mortgage and we remortgaged it and, yeah, I owned it.” Dacket No.
317, pg. 96. With such a strong stance taken by Gary, that he owned
the property outright, enough to place multiple mortgages on it, the
Court finds the Ehrmantrouts and Gary could not have had an
agreement allowing the Meyers to remain on the property after the
1994 grant. Such agreement would be in direct conflict with Gary’s
belief that he owned the subject property.

The Court finds through living on the land, running cattle, taking
out numerous mortgages, and generally holding himself out as the
owner of the subject land, Gary acted hostile and in defiance of
Ehrmantrouts’ interest in the subject property. Gary’s adverse
possession of the subject property was continuous from 1996 to 2022.
At no time during this time period did Gary act in a way inconsistent
with an owner of the property.

[719] Under the court’s reasoning, if there had been an agreement, then Meyer's
possession would not be hostile. The absence of an agreement does not establish
hostility. Adverse possession requires possession hostile to the true owner—
meaning possession that is inconsistent with the owner's rights and gives notice
of adverse claims. Whether Gary’s possession was hostile requires examining his
conduct and demonstrated intent, not merely the absence of formal permission.
As the district court reasoned, Meyer’s belief he owned the property is
inconsistent with possession of the Ehrmantrout’s property by agreement. An
agreement is relevant because “[flor the requirements of adverse possession to
be met, ‘the true owner must be removed from possession and kept out for the
statutory period by an open, visible, and exclusive possession of the claimant
without license or consent of the owner.’” Roth, 

, { 19 (emphasis added)
(quoting 16 Richard R. Powell, Powell on Real Property, § 91.02 (2023)). Whether

an agreement existed is relevant, but the presence or absence of an agreement is

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not the essential finding. Adverse possession requires possession hostile to the
true owner. Put another way, an agreement defeats hostility, but absence of an

agreement is not sufficient to show hostility.

[20] The district court’s finding on hostility relied on Gary Meyer’s belief that
he owned the property. We agree his belief demonstrates a lack of agreement, but
a finding of hostility based solely on the occupant’s belief does not itself establish
hostility. The court found “through living on the land, running cattle, taking out
numerous mortgages, and generally holding himself out as the owner of the
subject land, Gary acted hostile and in defiance of Ehrmantrouts’ interest in the

subject property.” These findings on hostility are insufficient.

[21] The district court’s analysis is constrained by a record not developed with
the theory of adverse possession in mind because the court first raised this theory
after the close of evidence. Adverse possession was not pleaded by any party or
tried during the proceedings. Although both parties brought quiet title claims,
neither party alleged adverse possession as the basis for their claims. Overbo v.
Overbo, 

, 

 (describing party presentation
principle). The Roths based their quiet title claim on chain of title through
quitclaim deeds, while the Meyers claimed title through the trust. After the close
of evidence, the district court sua sponte suggested that it may grant the Roths’
claim as a result of Meyers’ adverse possession prior to the 2010 quitclaim deed,
despite adverse possession not having been raised in the pleadings or mentioned
during trial. This created an incomplete evidentiary record on adverse
possession elements because the parties had no opportunity to develop evidence
specifically addressing whether Gary’s possession was hostile, exclusive, or met

other statutory requirements.

[22] To support its finding of hostile possession by Gary Meyer, the district
court relied on testimony that: (1) Gary had lived on or ran cattle on the subject
property for over 50 years; (2) Gary believed he owned the property and had
mortgaged the property; (3) the Ehrmantrouts had not used any part of the
property after 1994; and (4) Gary possessed and used the property “exclusively.”

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The court did not acknowledge its findings must meet the clear and convincing
evidence standard. Beyond the elevated burden of clear and convincing
evidence, we require “special rigor” to prove adverse possession against a family
member. Zorgersan v. Rase, 

 (N.D. 1983). The district court did

not discuss whether it applied this especially rigorous standard.

[123] A quiet title action not founded on a written instrument is limited to “the
premises actually occupied and no other.” N.D.C.C. § 28-01-10; Hovet v. Dahl,

, I 7,

. Only land “protected by a substantial enclosure”
or “usually cultivated or improved” may be acquired by adverse possession.
N.D.C.C. § 28-01-11. The parties did not supply evidence of a substantial
enclosure surrounding the subject property. We have said neither mowing nor
cutting hay is sufficient to establish the “unmistakably clear” acts of hostile
possession required to satisfy the statutory requirements. Gimbel v. Magrum, 

, ¥ 7, 

; Hovet, 

, J 10.

[124] The district court instead relied on Gary Meyer’s testimony that he
believed he owned the property. Gary Meyer’s subjective belief he owned the
property is not relevant. Only adverse, open, notorious, unmistakably clear acts
of possession are sufficient to communicate to the true owner that his possession
is hostile and exclusive. See Martin v. McDonnold, 247 S.W.3d._ 224, 235 (Tex. App.
2006) (affirming summary judgment because “[a] claimant’s subjective belief that
the property claimed adversely belonged to him, standing alone, fails to raise a
fact issue”); Teel v. Stading, 

, 

 (2010)
(“An adverse possessor has the burden of showing that the permission
terminated and that the original owner had notice of the adverse use. The
claimant’s subjective beliefs and intent are not relevant ....” (citation omitted));
Woodward v. Valvoda, 

, 9 27, 

 (“Because the notice
requirement is a fundamental part of an adverse possession claim, a claimant
cannot establish a prima facie case by relying solely on his testimony as to his
subjective hostile intent. He must introduce evidence that such intent was

objectively made manifest by his observable words or actions.” (cleaned up)).

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[725] The district court relied on Gary Meyer’s testimony about twice
mortgaging the property, but the record does not contain a mortgage. Again, this
case was tried before adverse possession was an issue. To believe Gary Meyer’s
testimony about the mortgages, one must also believe the lenders did not
confirm he had title to the property or twice made a mistake in examining title.
More fundamentally, recorded documents cannot establish adverse possession
because they are not evidence of hostile acts for purposes of adverse possession.
Cranston v. Winters, 

 (N.D. 1976); Black Stone Minerals v.
Brokaw, 

, { 11, 

 (recorded lease does not show actual
possession of mineral estate for purposes of adverse possession). If Gary Meyer
mortgaged the subject property despite not holding record title, that act did not
exclude the true owner from possession or grant the mortgagee any more interest
than Meyer possessed. Merchants Bank of Rugby v. Haman, 

, 870-
71 (N.D. 1985) (mortgage covers only interest held by mortgagor). Recorded
documents do not support adverse possession for good and practical reasons: if
they did, then any owner of real property would have to regularly examine his
own title to ensure adverse documents had not been recorded. Cranston, 

 (“It is basic to our concept of record title that persons with interests
in real estate may rely upon the record title without the necessity of checking the
title as to subsequent transactions affecting the real estate, in the absence of

possession sufficient to constitute adverse possession.”).

[26] When we set aside the irrelevant testimony about Gary Meyer’s subjective
belief and mortgages relied on by the district court, the record evidence shows
only that Gary Meyer lived and ran cattle on land titled in the name of his wife
Dolores’s parents, and he continued to live on the property after both Dolores
and her parents had died and title passed to Gary’s sons as trustees. We conclude
the court’s finding of hostile and exclusive acts to support adverse possession
against a true owner in the context of a family relationship is clearly erroneous
because we are firmly convinced the finding is not supported by clear and
convincing evidence. We remand with instructions to quiet title in favor of the

Meyer trustees.

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Il

[27] Gary Meyer claims the district court erred in ordering him to pay Mary
Roth $52,500 in restitution for unjust enrichment.

[28] During the first appeal we reversed the district court’s finding that Gary
Meyer “was required to pay $52,500 for breaching the contracts with Mary Roth”
because it failed to apply the statute of frauds and the debt was unenforceable
under N.D.C.C. § 9-06-04(4). Roth, 

, [ 45. We stated: “The issues over
loans may be a basis for recovery if the court finds Gary Meyer was unjustly
enriched. If so, the court’s findings on that issue must be made based on the

evidence admitted at trial.” Jd

[29] Our standard of review on appeal from a finding of unjust enrichment is
well established:

We review a district court’s findings of fact for clear error. A finding
of fact is clearly erroneous if it is induced by an erroneous view of
the law, if there is no evidence to support it, or if, after reviewing the
entirety of the evidence, this Court is left with a definite and firm
conviction a mistake has been made. A district court’s determination
whether the facts support a finding of unjust enrichment is a
conclusion of law that is fully reviewable on appeal.

Smestad v. Harris, 

, { 15, 

 (cleaned up).

[730] Unjust enrichment requires “(1) an enrichment; (2) an impoverishment;
(3) a connection between the enrichment and the impoverishment; (4) absence of
a justification for the enrichment and impoverishment; and (5) an absence of a
remedy provided by law.” Smestad 

, { 16 (quoting Matter of Estate of
Hill, 

 (N.D. 1992)).

[931] The district court’s findings are based on testimony that Mary Roth loaned
Gary Meyer $52,500. Gary Meyer acknowledged that the checks were loans and
not gifts and that he never repaid the loans from Mary Roth. On the basis of the

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evidence, the court found “(1) an enrichment of $52,500 to Gary; (2) Mary was
impoverished because she could not personally use the $52,500; (3) there is a
direct connection between Gary’s enrichment and Mary’s impoverishment; and
(4) there was no justification for the enrichment and impoverishment; both
parties agreed the checks were loans.” The court found Mary Roth tried to
recover the unpaid debt through a breach of contract claim but was barred. The
court also found Mary Roth had no alternative remedy at law; therefore, all

elements of an unjust enrichment claim were met.

[32] The district court’s findings on unjust enrichment were based on trial
testimony and other evidence in the record. The court’s findings are supported
by the record. The court’s findings on unjust enrichment are not clearly
erroneous. We affirm the court’s second amended judgment ordering Gary
Meyer to pay Mary Roth $52,500 in restitution relating to the loans.

IV

[933] We have considered the remaining issues and conclude they are either
without merit or unnecessary to our decision. The court did not err in ordering
Gary Meyer to pay Mary Roth restitution for unjust enrichment relating to the
loans. We affirm that part of the second amended judgment. The district court
erred in quieting title in Mary Roth and Aric Roth. We reverse the second
amended judgment to the extent it quieted title in Mary Roth and Aric Roth and
granted relief regarding access to the subject property. We remand for further
proceedings consistent with this opinion, including consideration on the current
record of any issues not reached as a result of erroneously quieting title in Mary
Roth and Aric Roth.

[134] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr

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Crothers, Justice, concurring and dissenting.

[935] I agree with that part of the majority opinion affirming the district court’s
restitution award. While I would agree with the majority opinion if we were
writing on a clean slate, I nevertheless believe we must affirm the district court’s
order under the mandate rule. I therefore respectfully dissent from that part of

the opinion reversing the court’s order quieting title in the Roths.

I

[36] On remand, the district court must follow directions from this Court:

“On remand, district courts must follow the mandate rule. The
mandate rule, a more specific application of law of the case, requires
the trial court to follow pronouncements of an appellate court on
legal issues in subsequent proceedings of the case and to carry the
appellate court’s mandate into effect according to its terms. This
Court retains the authority to decide whether the district court
scrupulously and fully carried out our mandate’s terms.”

Walstad v. Walstad, 

, { 9, 

 (cleaned up).

[137] Our remand of the quiet title issue directed the district court “to find who
was in possession of the subject property during the relevant periods and
whether that possession was adverse to the owner for the requisite amount of
time. Next, the court must find who the true owner is, to quiet title in their favor
....” Roth, 

, { 22.

[138] We explained the proof requirements for adverse possession in our

previous decision in this case:

“To satisfy the elements for adverse possession, the acts on which
the claimant relies must be actual, visible, continuous, notorious,
distinct, and hostile, and of such character to unmistakably indicate
an assertion of claim of exclusive ownership by the occupant. For
the continuous element, N.D.C.C. § 28-01-07 provides a
presumption against the adverse possession of real property unless

13
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it appears that such premises have been held and possessed
adversely to such legal title for twenty years before the
commencement of such action. A party who adversely possesses
with or without a written instrument must hold the land
continuously for 20 years. N.D.C.C §§ 28-01-07 and 28-01-08. For the
requirements of adverse possession to be met, the true owner must
be removed from possession and kept out for the statutory period
by an open, visible, and exclusive possession of the claimant without
license or consent of the owner.”

Roth, 

, J 19 (cleaned up). “Whether there has been an adverse
possession is a question of fact, which will not be reversed on appeal unless it is
clearly erroneous.” Moody v. Sundley, 

, J 11, 

. The

scope of our remand on adverse possession was narrowly stated:

“We reverse and remand for the district court to find who was
in possession of the subject property during the relevant periods and
whether that possession was adverse to the owner for the requisite
amount of time. Next, the court must find who the true owner is, to
quiet title in their favor, and if necessary, to make findings on unjust
enrichment.”

Roth, J 22.

[739] On the question who was in possession of the subject property during

times relevant to this case, the district court found:

“The testimony the Court received at trial was that Gary had
lived or ran cattle on the subject property for over fifty (50) years.
During those years, there had been four houses on the property,
including the house built by Gary and Mary. The Court received no
evidence that the Ehrmantrouts utilized any part of the subject
property after the 1994 grant. Rather, the only testimony the Court
received pertained to Gary’s possession and use of the subject
property, exclusively for decades, before and after the 1994 grant.”

[740] On the question whether the possessor’s occupancy was hostile, the
district court found:

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“The next fact the Court has to find is whether the
Ehrmantrouts and the Meyers had an agreement allowing the
Meyers to remain on the subject property after the September 1994
grant. Black’s Law Dictionary defines an ‘agreement’ as ‘a mutual
understanding between two or more persons . . .” Black’s Law
Dictionary, 74 (8th ed. 2004).

“Gary was clear in his testimony—he believed he owned the
subject property. He justified his belief by explaining: ‘I’ve lived
there since ’62. I assumed I owned it. 1 had it mortgaged. We got it
out of mortgage and we remortgaged it and, yeah, I owned it.’ Docket
No. 317, pg. 96. With such a strong stance taken by Gary, that he
owned the property outright, enough to place multiple mortgages
on it, the Court finds the Ehrmantrouts and Gary could not have had
an agreement allowing the Meyers to remain on the property after
the 1994 grant. Such agreement would be in direct conflict with
Gary’s belief that he owned the subject property.”

[741] This Court reviews appeals from quiet title judgments under the clearly
erroneous standard. Great Plains Royalty Corp. v. Earl Schwartz Co,, 

,
{ 13, 

. “A finding of fact is clearly erroneous if it is induced by an
erroneous view of the law, if there is no evidence to support it, or if, after
reviewing all the evidence, this Court is convinced a mistake has been made.” Jd

(cleaned up).

[42] The district court addressed the issues on remand as directed by this
Court’s mandate. See Walstad 

, { 9 (stating “district courts must
follow the mandate rule”). The court found that Gary Meyer was in possession
of the subject property for more than 50 years, and that his possession of the
subject property was hostile to the Ehrmantrouts’ possession in several ways,
most prominently when he acted as if he owned the subject property by living
on the land, ranching it, mortgaging it and openly holding out that he owned it.
While the court did not expressly address the “special rigor” required to prove
adverse possession when family members are involved, see Torgerson v. Rase, 

 (N.D. 1983), it satisfied the consideration by concluding any

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permissive arrangement between Gary Meyer and the Ehrmantrouts was

disproved by Gary Meyer’s assertion he owned the property outright.

[743] The district court’s findings are supported by evidence adduced at trial,
and those findings are not clearly erroneous. I therefore believe we should affirm
the court’s judgment quieting title in the Roths and declining to quiet title in the
Meyer trustees.

Il

[144] Because I would affirm the district court’s quiet title order, it would be
necessary for this Court to reach the Meyers’ claim that the court erred in
including additional terms and conditions regarding access to the subject

property in its second amended judgment.

[945] The district court’s findings of fact do not address access to the subject
property and it does not appear the issue was expressly litigated. After trial, the
court asked the Roths to draft a proposed judgment. The Roth’s proposed
judgment, which was entered by the court, stated “Defendants shall not take any
action to prevent the Plaintiffs from accessing the Subject Property.” The Meyers
objected to this inclusion. The court did not address the objection. The same
language was included in the second amended judgment that was entered after

remand.

[46] The subject property is a 10-acre section situated in the middle of 640 acres.
According to evidence adduced at trial, the only road accessing the subject
property runs through section 13 that surrounds the land. The district court’s
directive that the Meyers not prevent the Roths from accessing the subject
property is not explained so we do not know if the court intended to enjoin the
Meyers from interfering with the Roths’ access, or whether the directive was
intended to create an easement of some sort. The court’s lack of supporting

findings are fatal to either conclusion.

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[747] Rule 52(a)(1), N.D.R.Civ.P., requires, “In an action tried on the facts
without a jury or with an advisory jury, the court must find the facts specially
and state its conclusions of law separately.” “The court must specifically state

the facts upon which its ultimate conclusion is based on.” Matter of R.A.S., 

, J 8, 

. In Matter of R.A.S. we explained:

“The purpose of the rule is to provide the appellate court with an
understanding of the factual issues and the basis of the district
court’s decision. Because this Court defers to a district court’s choice
between two permissible views of the evidence and the district court
decides issues of credibility, detailed findings are particularly
important when there is conflicting or disputed evidence. This Court
cannot review a district court’s decision when the court does not
provide any indication of the evidentiary and theoretical basis for its
decision because we are left to speculate what evidence was
considered and whether the law was properly applied. The court
errs as a matter of law when it does not make the required findings.”

Id (cleaned up).

[948] If the district court’s judgment was intended to be an easement, it fails for
lack of adequate delineation. Section 47-05-02.1(1), N.D.C.C., requires that any
easement “be properly described and shall set out the area of land covered by
the interest in real property.” The court’s judgment failed to specify the
description of any easement granted to access the property. Given the general
description in the judgment, Roth could seemingly access the property by any
route through section 13. This Court in Otter Tail Power Co. v. Van Bank, held an
easement must be properly described because it is “essential so that both the
owner of the easement and the owner of the property subjected to it may know
exactly what their rights are with respect to their different interests.” 

 (N.D. 1942).

[149] If the district court’s judgment was intended to enjoin the Meyers from
interfering with access to the subject property, that relief also suffers from fatal

flaws.

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[50] First, the Roths originally requested certain injunctive relief. Their

complaint stated:

“[the Meyers] continue to enter onto the subject property and try to
forcibly remove Plaintiffs from their home, using threats,
harassment, and intimidation. [ ] The Defendant further continue[s]
to exercise unauthorized control over and fraudulently transfer title
to Mary’s personal property, including certain cattle. [ ] The
continued misconduct, unauthorized actions, and fraudulent
conduct has injured and will continue to injure and irreparably harm
the Plaintiffs.”

However, they withdrew their claim for injunctive relief prior to trial and the
district court dismissed that claim. Thus, the Roths waived any direct claim for

injunctive relief.

[751] We have recognized that even in the absence of a direct request for
injunctive relief, “[a] court of equity has authority to grant as full relief as is
sought by the pleadings and within the scope of proof.” State v. Amerada
Petroleum Corp.,

 (N.D. 1955). In Farm Credit Bank of St. Paul v.
Brakke, we heard an appeal regarding a quiet title action in which the district
court also “permanently enjoined the Brakkes from interfering with [Farm Credit
Bank] and Kirk’s ownership of the two tracts of land.” 

 (N.D.
1992). The Brakkes argued that the district court erred in entering a permanent
injunction and that the injunction was too broad. Jd Farm Credit Bank and Kirk
argued the injunction was “the only means to prohibit the Brakkes from
interfering with their lawful ownership of the two tracts of land.” Jd While it is
unclear if the district court entered the injunction through its own initiative, this
Court stated:

“Section 32-05-04, N.D.C.C., authorizes a final injunction to
prevent the breach of an obligation when damages are insufficient
to afford adequate relief. Injunctive relief is appropriate to prevent a
threatened disturbance in the peaceable use, enjoyment, and
possession of real property. The decision to grant or deny injunctive

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relief rests in the sound discretion of the trial court, and its
determination will not be reversed on appeal absent an abuse of
discretion.”

Id at 170 (cleaned up).

[952] Here, the district court may have intended the language to be an injunction
to protect the Roths’ use and possession of the subject property. If that was the
case, the court did not make findings supporting the injunction, as required by
law. N.D.R.Civ.P. 52(a)(1); see also Matter of R.A.S., 

, { 8 (stating “[t]he
court must specifically state the facts upon which its ultimate conclusion is based

on”

[153] Without adequate findings, we “cannot review a district court’s decision
when the court does not provide any indication of the evidentiary and theoretical
basis for its decision because we are left to speculate what evidence was
considered and whether the law was properly applied.” Matter of R.A.S., 

, { 8 Therefore, I would reverse the district court’s inclusion of additional
terms for access to the subject property.

[{54] Daniel J. Crothers

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