New Opinions: June 18

Roth, et al. v. Meyer, et al. 2025 ND 116
Docket No.: 20240324
Filing Date: 6/18/2025
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

 View Opinion

Highlight: 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 and to carry the appellate court's mandate into effect according to its terms.

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.

The burden of proving adverse possession rests with the person alleging it and must be established by clear and convincing evidence. Beyond the elevated burden of clear and convincing evidence, "special rigor" is required to prove adverse possession against a family member.

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.

For purposes of establishing adverse possession, a claimant's subjective belief he owned the property is not relevant.

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.

The absence of an agreement does not establish hostility for an adverse possession claim. Whether an agreement existed is relevant, but the presence or absence of an agreement is not the essential finding.

Recorded documents cannot establish adverse possession because they are not evidence of hostile acts for purposes of adverse possession.

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.