This opinion will be unpublished and 

may not be cited except as provided by 

Minn. Stat. § 480A.08, subd. 3 (2014). 

STATE OF MINNESOTA 

IN COURT OF APPEALS 

A15-1887 

Gregg H. Johnson, Plaintiff, 

William Flies, et al., 

Appellants, 

vs. 

Township of Florence, 

Respondent, 

State of Minnesota, Defendant. 

Filed May 23, 2016 

Affirmed and remanded 

Rodenberg, Judge 

Goodhue County District Court 

File No. 25-CV-14-1835 

Patrick B. Steinhoff, Bruce D. Malkerson, Malkerson Gunn Martin LLP, Minneapolis, 

Minnesota (for appellants) 

Einar E. Hanson, Benjamin J. Kirk, Strobel & Hanson, P.A., Hudson, Wisconsin; and 

John D. Hagen, Jr., Minneapolis, Minnesota (for respondent) 

 Considered and decided by Hooten, Presiding Judge; Larkin, Judge; and 

Rodenberg, Judge. 
2 

U N P U B L I S H E D O P I N I O N 

RODENBERG, Judge 

Appellants William Flies, Linda Flies, and Chateau Frontenac, Ltd. challenge the 

district court’s summary-judgment dismissal of this consolidated declaratory-judgment 

and title registration action. They argue that the district court erred in concluding that an 

1857 plat conveyed fee title to a single un-subdivided parcel along the Lake Pepin 

shoreline to respondent Florence Township, that appellants’ lots “fronting the shoreline 

dedication” do not extend to the shoreline of the lake, that the Marketable Title Act 

(MTA) does not extinguish the township’s interest in the property, and that the township 

is therefore entitled to register the subject land in the Torrens system. We affirm the 

summary-judgment dismissal of appellants’ claims and remand for Torrens proceedings 

consistent with this opinion. 

FACTS 

This appeal concerns the ownership of shoreline property on Lake Pepin’s 

Frontenac Point (subject land). Ownership and use of the subject land was previously 

disputed in 1935, and the history of the land and that earlier dispute are chronicled in 

Schaller v. Town of Florence, 193 Minn. 604, 259 N.W. 529 (1935). The Schaller court, 

borrowing from the magazine Minnesota History, described the land and the settlement 

of Frontenac Point: 

 It is impossible to understand the charm of Frontenac unless 

one knows its history, for the little village is an expression of 

strong personalities. Few beauty spots in America have been 

so long in the possession of one or two families and remained 

untouched by commercialism. This little settlement is located 
3 

on Lake Pepin, a widening of the Mississippi River which 

forms the boundary between Minnesota and Wisconsin at this 

point. The scenery of the upper Mississippi Valley is 

unsurpassed in the West. High on either side of the river rise 

palisades of rock or wooded slopes that suggest the banks of 

the Rhine. Early explorers marveled at its beauty, and the 

tourist of today responds to its dignity and serenity. . . . To 

those who respond to the atmosphere of Frontenac it is a 

haven of rest and a place of beauty, the home of a grace and a 

culture with roots in the past and a flowering in our own age. 

193 Minn. at 605-06, 259 N.W. at 530 (quotation omitted). 

The 1935 dispute in Schaller was similar to the one before us now. The subject 

land was platted in 1857, and the original plat “dedicate[d] to public use [the subject 

land] to be used as a steamboat landing.” Id. at 607, 259 N.W. at 532. The property was 

so used until 1917. Id. at 605, 610 N.W. at 530, 533. In 1907, Celestine Schaller 

purchased most of the land on Frontenac Point, including a hotel, but the legal 

descriptions of the lots she purchased did not include the subject land. See generally id.

at 609, 259 N.W. at 532 (stating Schaller had purchased the hotel, which was located on 

land immediately behind Frontenac Point). Schaller maintained that the public’s interest 

in the subject land had been abandoned. Id. at 609, 259 N.W. at 533. The township 

opposed her proceeding to vacate. Id. at 605, 259 N.W. at 530. The Minnesota Supreme 

Court held that the prior owners had, by the 1857 plat, dedicated the shoreline for general 

public use and that the discontinuation of the use of the property as a steamboat landing 

did not constitute abandonment of the township’s interest. Id. at 611, 614-15, 259 N.W. 

at 533, 535. 
4 

 Schaller later sold her lots. A Methodist camp group eventually bought the 

property formerly owned by her. After the camp closed, appellants purchased the 

property in 1987. 

In October 2013, appellants filed an application to register title to their land and to 

the subject land, which is the unplatted shoreline adjoining their described lots. On 

January 28, 2014, the examiner of titles recommended denial of the application because 

appellants sought to register title to the shorefront land dedicated by the 1857 plat to 

public use. 

 In August 2014, appellants brought a declaratory-judgment action to determine 

ownership of the subject land. Appellants alleged that the township had not recorded its 

interest under the MTA, Minn. Stat. § 541.023 (2014), and had not exercised possession 

of the land for more than 40 years. In September 2014, the township filed an action to 

register title to the shoreline. The examiner of titles recommended that the township’s 

application be granted. 

On November 24, 2014, the district court consolidated the two registration-of-title 

actions and the declaratory-judgment action. Appellants dismissed their registration-oftitle action without prejudice. Both parties moved for summary judgment in the 

remaining and consolidated declaratory-judgment and registration-of-title actions. 

 The district court granted the township’s motion for summary judgment, dismissed 

appellants’ declaratory-judgment complaint, and dismissed appellants’ affirmative 

defenses in the township’s registration-of-title action. The district court declined to 
5 

complete the Torrens proceedings, and instead certified the partial judgment for 

immediate appeal. 

D E C I S I O N 

Appellants challenge the district court’s grant of summary judgment, arguing that 

the district court erred in concluding that the 1857 plat conveyed fee title to a single unsubdivided parcel along the shoreline of Lake Pepin to the township, the MTA does not 

extinguish the township’s interest in the subject land (which appellants contend is an 

easement), and the township is entitled to register the subject land in the Torrens system. 

The parties agree that if the 1857 plat conveyed fee title to the township, that issue is 

dispositive. See Hempel v. Creek House Trust, 743 N.W.2d 305, 312 (Minn. App. 2007) 

(“The MTA does not operate offensively to provide foundation for new title, but 

defensively to protect preexisting claims of title.”). 

We review a district court’s grant of summary judgment de novo. Riverview Muir 

Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). “In doing so, 

we determine whether the district court properly applied the law and whether there are 

genuine issues of material fact that preclude summary judgment.” Id. A genuine issue of 

material fact exists when there is sufficient evidence that could lead a rational trier of fact 

to find for the nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997). 

Summary judgment is not appropriate “when reasonable persons might draw different 

conclusions from the evidence presented.” Id. at 69. Evidence is viewed in “the light 

most favorable to the party against whom summary judgment was granted.” STAR 

Centers, Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). 
6 

Appellants argue that the district court erred in construing the Frontenac Plat as 

having conveyed fee title to the township. They maintain that the plat conveyed only an 

easement. Because Schaller considered the ownership of this same property, we first 

consider whether the opinion in that earlier appeal operates as either res judicata or 

collateral estoppel here. 

Res judicata only applies when four elements are present: (1) the same set of 

factual circumstances was involved in both the earlier and the current proceedings; 

(2) both proceedings involved the same parties or parties in privity with them; (3) the 

earlier case included a final judgment on the merits; and (4) the party against whom the 

doctrine applies had a full and fair opportunity to litigate the claim. Brown-Wilbert, Inc. 

v. Copeland Buhl & Co., 732 N.W.2d 209, 220 (Minn. 2007). Collateral estoppel, or 

issue preclusion, is narrower than res judicata. The requirements for application of 

collateral estoppel are that (1) the issue in the case is identical to an earlier adjudication, 

(2) the earlier case was a “final judgment on the merits,” (3) the party to be estopped was 

a party or in privity with a party in the earlier case, and (4) the party sought to be 

estopped had a “full and fair opportunity to be heard” in the earlier case. Hauschildt v. 

Beckingham, 686 N.W.2d 829, 837 (Minn. 2004). Collateral estoppel only applies to 

issues “actually litigated, determined by, and essential to a previous judgment.” In re 

Application of Hofstad, 376 N.W.2d 698, 700 (Minn. App. 1985) (quotation omitted). 

Neither doctrine is to be rigidly applied. Hauschildt, 686 N.W.2d at 837.

Here, neither doctrine applies as a bar. Res judicata does not apply because the 

issue in the earlier appeal was whether to vacate an interest arising from the plat due to 
7 

abandonment. Here, appellants argue that the plat conveyed only an easement and that 

the township, as owner of the easement, failed to exercise possession and failed to record 

its interest under the MTA for 40 years. These claims require proof of different facts 

than were considered in Schaller. Appellants’ MTA claim is based on a new statutory 

provision not in effect at the time of Schaller. See Minn. Stat. § 541.023. 

Collateral estoppel does not apply to the fee-versus-easement dispute because that 

issue was not “directly determined” in Schaller. The Schaller court instead resolved the 

case by applying common-law abandonment principles. 193 Minn. at 614-15, 259 N.W. 

at 534-35. The supreme court held that Schaller did not meet the statutory standard for 

vacating a plat, which required that the vacation be in the public interest. See id. The 

fee-versus-easement issue was not squarely decided in Schaller, nor was it necessary to 

the holding there. 

Although Schaller does not bar appellants’ claims or finally resolve the feeversus-easement issue, we agree with the district court that the Schaller court’s language 

in the earlier case informs our decision. The Schaller court noted: 

It seems obvious to us that what the donors intended was to 

convey to the public for its use all of Lake avenue, including 

as well all the property fronting upon the lake at Frontenac 

Point. . . . Everything points to a general donation or grant to 

public use of all the areas not surveyed into lots and 

blocks. . . . It is unreasonable to suppose that the dedication 

in respect of steamboat landing made for naught the prior 

general grant in respect of the public use indicated by the 

plat. . . . Conceding that the [district] court was right in 

holding that the lake shore had not been used for steamboat 

landing purposes over a period of some seventeen years, yet 

that would not, as we view the situation, at all interfere with 

the right of the public to the possession for use of Lake 
8 

avenue and the other streets and public places bordering upon 

the lake. The steamboat landing provision cannot be said to 

be in denial of the general grant. 

193 Minn. at 611, 259 N.W. at 533. 

Informed by Schaller’s characterization of the Frontenac Plat, we consider now 

whether the 1857 plat conveyed fee title or an easement to the subject land. 

The original plat concerned and conveyed to the public far more shoreland than 

just the steamboat landing. The plat conveyed the subject land in the following terms: 

We also dedicate to Public use the Lake Shore between 

Blocks 9 & 13 to be used as a Steamboat Landing, reserving 

to ourselves all rights of wharfage and all rights and 

privileges of Ferry either within the above limits or 

elsewhere, either at the ends of the streets or within the 

boundaries of Lots which run to the water. 

The territorial statute in effect at the time of platting, which the Schaller court 

applied to the facts before it, provided: 

When the plot or map shall have been made out and certified, 

acknowledged and recorded as required by this chapter, every 

donation or grant to the public or any individual or 

individuals, religious society or societies, or to any 

corporation or body politic, marked or noted as such on said 

plot or map, shall be deemed in law and equity a sufficient 

conveyance to vest the fee simple of all such parcel or parcels 

of land, as are therein expressed, and shall be considered to 

all intents and purposes a general warranty against such donor 

or donors, their heirs or representatives to said donee or 

donees, grantee or grantees, for his, her or their use, for the 

uses and purposes therein named, expressed and intended, 

and no other use and purpose whatever; and the land intended 

to be for the streets, alleys, ways, commons or other public 

uses in any town or city, or addition thereto, shall be held in 

the corporate name thereof, in trust to, and for the use and 

purposes set forth and expressed or intended. 
9 

Minn. Gen. Stat. ch. 26, § 5 (1858); see also Schaller, 193 Minn. at 608, 259 N.W. at 632 

(noting that the statute was effective between 1849 and 1858). The first part of the 

statute provides that grants to the public are deemed to convey a fee simple interest. 

Minn. Gen. Stat. ch. 26, § 5. The second excepts from this treatment lands intended for 

streets and public ways, and treats such “donations” as easements. Id. The parties 

dispute which portion of the statute governs the platters’ conveyance of the subject land. 

We review the district court’s construction of the territorial statute de novo. Denman v. 

Gans, 607 N.W.2d 788, 794 (Minn. App. 2000) review denied (Minn. Jun. 27, 2000). 

Appellants rely on a line of cases that distinguish “donation[s] or grant[s],” which 

convey fee title, from dedications, which do not convey fee title. See Betcher v. Chicago 

M. & St. P. Ry. Co., 110 Minn. 228, 124 N.W. 1096 (1910); Schurmeier v. St. Paul & 

Pac. R.R. Co., 10 Minn. 82 (1865). 

Citing Schurmeier, appellants argue that the plain language of the Frontenac Plat 

indicates that it was intended to dedicate, rather than donate or grant, the subject land to 

the public strictly for a steamboat landing. See Schurmeier, 10 Minn. at 104 (“A 

dedication is not a grant or donation. Its effect is not to deprive a party of title to his land, 

but to estop him, while the dedication continues in force . . . .”). In Schurmeier, the 

parties disputed the possession and use of a levee along the Mississippi River in St. Paul. 

Id. at 86-87. The plat in Schurmeier extended to the main channel of the river, id. at 84, 

and designated a strip of land adjoining the river as a “landing,” id. at 85-86. The plat 

also showed an “open river without islands.” Id. at 84. But changing water levels 

actually revealed an “island” in the river. Id. The city graded the levee and included the 
10 

island by filling the area in between it and the mainland, which effectively enlarged the 

lots fronting on the landing. Id. at 86, 101-03. The plaintiff, Casper Schurmeier, owned 

lots fronting on the landing and had built a warehouse on them. Id. at 83, 86. Schurmeier 

derived title to his property from Louis Roberts, who purchased the property from the 

government. Id. 85. He sought to enjoin the defendant railroad company from 

constructing railroad tracks on the newly graded land, which would obstruct his use of his 

warehouse in connection with the river. Id. at 87. 

The railroad company argued, in part, that Schurmeier did not have fee title to the 

land because the plat dedicated it as a “landing.” Id. at 105. The Minnesota Supreme 

Court rejected the railroad company’s argument, holding that, 

The use for which the dedication was made, therefore, 

determines the extent of the right parted with by the owner 

and acquired by the public or corporate authorities of the 

town. Neither the use for which the dedication was made, nor 

the language of the statute justifies, in this case, the 

conclusion that a legislative transfer of the fee was intended, 

and without such transfer, it remains in [the private party] and 

his grantees. 

Id. at 104-05 (emphasis added). Schurmeier’s conclusion was therefore fact-specific, 

turning on the fact that the initial dedication allowed the public to use the parcel for a 

“landing.” Id. at 104. 

Here, the conveyance in the Frontenac Plat is unlike the dedication in Schurmeier. 

This plat provides for a general conveyance for “public use.” The Schaller court thought 

it “obvious . . . that what the donors intended was to convey to the public for its use” the 

Lake Pepin shoreline on Frontenac Point. 193 Minn. at 611, 259 N.W. at 533. Both 
11 

before and after 1917, when steamboat use of the point ceased, the shoreland conveyed to 

the public consisted of much more shoreline than was used for the landing, and included 

public uses other than the steamboat landing. 

Appellants also cite Betcher for the proposition that “the dedication of land [for a 

steamboat landing or levee] . . . does not pass the fee-simple title thereto, but only such 

an estate as the purpose of the trust requires, and that the fee, subject to the public 

easement, remains in the dedicator and his grantees.” 110 Minn. at 234, 124 N.W. at 

1099. The facts in Betcher are similar to those of Schurmeier: a railroad company 

sought to build railroad tracks on a piece of land that was, at one time, dedicated to public 

use as a “Steamboat Landing,” and a private individual claimed that he owned fee title to 

the disputed property. Id. at 230-31, 124 N.W. at 1097. The plaintiff, Charles Betcher, 

sought to recover a tract of land that the defendant railroad company possessed after the 

town of Red Wing declared the tract vacated and permitted the railroad company to use 

it. Id. at 229-30, 124 N.W. at 1092. The railroad company argued that the plat, which 

labeled the tract of land “Steamboat Landing,” conveyed fee title to the town and that the 

company “was in the possession of the premises for railroad purposes with the 

acquiescence of the owner [town].” Id. at 230, 124 N.W. at 1097. The plat in Betcher

did not contain any other dedication, grant, or donation language concerning the disputed 

property. Id. at 233-34, 124 N.W. at 1098-99. 

The Minnesota Supreme Court reviewed the facts in Betcher and was “of the 

opinion that the [land] was dedicated to the use of the public primarily as a steamboat 

landing or levee.” Id. at 231, 124 N.W. at 1097. But there is nothing from the Betcher
12 

opinion that indicates that the plat contained any language concerning the dedication 

other than a label, “Steamboat Landing.” Here, in addition to the label, the Frontenac 

Plat contains language that the subject land is “dedicate[d] to Public use.” Schaller, 193 

Minn. at 607, 259 N.W. at 532. The Minnesota Supreme Court has construed this very 

provision in the earlier litigation as “a general donation or grant to public use.” Id. at 

611, 259 N.W. at 533. Betcher is therefore factually distinguishable from this case.1

 

Neither the plain language of the territorial statute, nor caselaw interpreting that 

statute provides a general rule concerning conveyances for the purpose of establishing 

steamboat landings. But Schurmeier’s general principle provides guidance for 

determining whether the first half or the second half of the platting statute governs the 

Frontenac Plat. The Schurmeier holding indicates that the platters’ intent “determines the 

extent of the right parted with by the owner.” 10 Minn. at 104. We are informed by 

Schaller’s construction of the Frontenac Plat as “intend[ing] to convey to the public for 

its use all of Lake avenue, including as well all the property fronting upon the lake at 

Frontenac Point.” 193 Minn. at 611, 259 N.W. at 533. The Schaller court observed that 

“[e]verything points to a general donation or grant to public use of all the areas not 

surveyed into lots and blocks,” which includes the subject land. Id. The clear intent of 

the 1857 plat was to convey a fee interest. The supreme court said that “[i]t is 

 

1

 We are mindful that, at common law, a “dedication” generally “vests only an easement 

in the public.” Note, Public Ownership of Land Through Dedication, 75 Harv. L. Rev. 

1406, 1408 (1962) (citing Ryerson v. City of Chicago, 247 Ill. 185, 93 N.E. 162 (1910)). 

Here, we are applying the territorial statute, and not the common law, and we do so in the 

context of the Minnesota Supreme Court’s earlier review of a case concerning this 

precise parcel of land under that same statute. 
13 

unreasonable to suppose that the dedication in respect of [a] steamboat landing made for 

naught the prior general grant in respect of the public use indicated by the plat.” Id. The 

Schaller court further observed that even if “the lake shore had not been used for 

steamboat landing purposes over a period of some seventeen years, . . . that would not . . . 

at all interfere with the right of the public to the possession for use of Lake avenue and 

the other streets and public places bordering upon the lake.” Id. In concluding that the 

public had not abandoned the subject land, the supreme court necessarily construed the 

Frontenac Plat as having conveyed more than an easement limited to steamboat-landing 

purposes. Although the earlier Schaller opinion did not determine the same issues we 

consider here, the supreme court’s construction of the plat language concerning this very 

same parcel of land is persuasive. The 1857 plat conveyed fee title to the subject land to 

respondent township. 

Moreover, the 1857 plat contains the following language concerning the land: 

We also dedicate to public use the Lake Shore between 

Blocks 9 & 13 to be used as a Steamboat Landing, reserving 

to ourselves all rights of wharfage and all rights and 

privileges of Ferry either within the above limits or 

elsewhere, either at the ends of the streets or within the 

boundaries of Lots which run to the water. 

Id., at 606, 259 N.W. at 532 (emphasis added.) Two portions of this reservation by the 

plat confirm that it conveyed fee title. First, the plat reserved rights in the grantor. Had 

the grant been limited to an easement, the reservation would have been unnecessary 

because, in the case of an easement, the grantor would retain all rights in the property 

except those rights conveyed in the easement. See 28A C.J.S. Easements § 192 (2016) 
14 

(“Owners of the servient tenement retain every incident of ownership not inconsistent 

with the easement and the enjoyment of the same.”). Second, the passage makes specific 

reference to lots that “run to the water.” At the point where the Steamboat Landing was 

situated, the lots do not “run to the water,” while in other places the lots are designated by 

the plat to run up to the shore of Lake Pepin. 

Because, under the territorial statute, the township was granted a fee interest in the 

shoreland, appellants cannot rely on the MTA to create a fee interest where the deeds to 

which their title can be traced do not include that shoreline property. See Hempel, 743 

N.W.2d at 312 (“The MTA does not operate offensively to provide foundation for new 

title, but defensively to protect preexisting claims of title.”); see also Padrnos v. City of 

Nisswa, 409 N.W.2d 36, 38 (Minn. App. 1987) (noting that “the MTA was designed to be 

invoked as a defense” and “does not operate to provide a foundation for a new title”), 

review denied (Minn. Sept. 23, 1987). The MTA has no application here.

Under the territorial statute in effect at the time, the 1857 plat conveyed fee title to 

the subject land to the township. Therefore, we do not address appellants’ other 

arguments, and we affirm the district court’s grant of summary judgment in favor of 

respondent. Because the Torrens proceedings were held in abeyance pending this appeal, 

we remand the case for Torrens proceedings consistent with this opinion. 

Affirmed and remanded.