### Filed 9/12/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 230

Teresa L. Larson, Janet F. Schelling, and Lynette A. Helgeson, Plaintiffs and Appellees

v. Jon Tonneson, Mary Issendorf, in her personal capacity and in her capacity as the personal representative of the Estate of Vesper Shirley, the Estate of Vesper Shirley, and all other persons interested either as heirs, creditors, or otherwise, in the estates of the above-mentioned persons or entities, and all other persons unknown, claiming any interest in or encumbrance upon the property described in the complaint, Defendants and Appellants

No. 20180169

Appeal from the District Court of Bottineau County, Northeast Judicial District, the Honorable Anthony S. Benson, Judge.

AFFIRMED AND REMANDED.
Opinion of the Court by VandeWalle, Chief Justice

. James A. Teigland, Fargo, ND, for plaintiffs and appellees.
Michael S. McIntee, Bottineau, ND, for defendants and appellant s.Larson v. Tonneson
No. 20180169

VandeWalle, Chief Justice. [¶1] Jon Tonneson and Mary Issendorf, in her personal capacity a nd as personal representative of the estate of Vesper Shirley, (“defendants”) appealed from a judgment quieting title to certain property in Teresa Larson, J anet Schelling, and Lynette Helgeson (“plaintiffs”). We conclude the district cour t did not clearly err in finding Larson, Schelling, and Helgeson acquired the disputed p roperty by adverse possession. We affirm the judgment but remand the case for entry of a corrected judgment.

I [¶2] The plaintiffs and defendants are successors in interest to certain property at Lake Metigoshe in Bottineau County. The parties acquired their respective properties through their families beginni ng in the 1950s. In 2012, the pl aintiffs became aware of property boundary issues after a survey was conducted when p laintiffs were attempting to replace a mobile home on the property. At that t ime, the plaintiffs also discovered a platted roadway ran through their property, thoughno such roadway existed on the property. The plaintiffs thereafter took steps t o vacate the road. [¶3] In 2014, the Roland Township Board of Supervisors granted apetition to discontinue and vacate a portion of the platted roadway. Lando wners in the area also signed an easement covering the roadway actually in use by the owners and the public to ensure access to the various lots, which runs along the northern boundary of the subject property in this case. While the plaintiffs were able to reach some boundary line agreements with neighbors, a dispute remained regarding ow nership of the disputed property involved in this case. [¶4] The lake property at issue is within or adjacent to property platted in July 1950 as Larson’s Beach Addition and is an irregularly-sized tract re ferred to at trial as

1comprised of specific parcels making up the whole. The undispu ted portion of the property is located along the shore of Lake Metigoshe. The 195 0 plat for Larson’s Beach shows the platted roadway—which the district court found had neither been opened nor used—running through the property from an easterly and westerly direction, as well as from a northwesterly direction. A small triangle of land located along the northwesterly edge of the parcel was referred to as the “Tonneson triangle.” A larger triangle located along the northeasterly boundary of t he parcel was called the “Issendorf triangle.” The parties did not dispute plaintiffs’ ownership of the largest part of the parcel along the southerly portion of the tract. R ather, the parties disputed ownership of the Tonneson triangle, the Issendorf triangle, and the platted roadway. [¶5] In 2015, plaintiffs Larson, Schelling, and Helgeson commenc ed this action to quiet title to disputed portions of that property, claiming the y had acquired title to the disputed property by adverse possession. They requested the di strict court to quiet title to the property in them and decree that the defendants ha d no estate or interest in, or lien or encumbrance upon, the property. The plaintiffs amen ded their complaint to include claims for the doctrines of agreed boundaries, acqui escence, and estoppel, and a claim for a prescriptive easement. The defendants Tonnes on and Issendorf answered, alleging the plaintiffs were not owners of any property owned by them and requested the complaint be dismissed. [¶6] On April 27 and 28, 2017, the district court held a bench trial on whether Larson, Schelling, and Helgeson had acquired the Tonneson trian gle, the Issendorf triangle, and the platted roadway property by adverse possessio n. The court received exhibits and heard testimony from plaintiffs Larson and Schelli ng, defendants Tonneson and Issendorf, the parties’ expert land surveyors, and Bottineau County employees. The court and the parties’ attorneys also inspected the property. [¶7] In its subsequent findings the district court detailed the activity of the plaintiffs, including their families and predecessors, on the p roperty: Since the early 1960s there have been a total of three trailer homes placed on the property, with the 1964 trailer home being replac ed by the 1993 mobile home. During the inspection of the property fo llowing

2the trial, it was observed that there were no wheels on the axl es of the two trailer homes on the property; however, neither were the tr ailer homes sufficiently attached to th e land so a s to become affixed to the real estate. There was cement poured for a mudroom which was attached to Janet’s trailer, although the mud room is no longer there. While there has been ordinary lawn maintenance, the Plaintiffs and their families also spent time and effort in removing trees and brush, so that the trailer homes could be placed, and the prope rty used for its main recreational purpose at Lake Metigoshe. Primarilythe property has been used in the summer months, but there was a pe riod of time that the Plaintiffs also used it in the winter, for suc h activities as ice fishing and snowmobiling, as well as use during a family wedding in the winter. In addition to ordinary lawn care and r emoving trees and brush, there was also gravel put down on the property , both to provide a stable base for the trailer houses, as well as to maintain the road into the property and parking for vehicles. The Plaintiff s have used the property for storing large items, such as campers, lak e toys and boats, and have put two storage sheds on the property, one in 1 972 and one in 2005. The 1972 storage shed sits in part on the Issendo rf triangle as well as on part of the platted roadway. There was a well drilled into the property, and a fence erected by the well. There has also been a firewood shelf on the prope rty, with cement being poured under the shelving unit. The Plaintiffs an d their families have used the subject property, including portions of the platted roadway, the Tonneson triangle, and the Issendorf trian gle as if it were their own property, since the early 1960’s to the prese nt. It is true that a portion of the Issendorf triangle is still in its w ooded condition, and has not been cleared by the Plaintiffs or their families. [¶8] In a December 2017 opinion, the district court quieted titl e to the property in Larson, Schelling, and Helgeson, finding the plaintiffs had acq uired the disputed property by adverse possession under N.D.C.C. § 28-01-11. On M arch 2, 2018, the court entered its findings of fact, conclusions of law, and ord er for judgment, and judgment was entered. On March 12, 2018, defendants filed an o bjection to costs and disbursements. After further proceedings, the court entered an order regarding costs on April 27, 2018, and ordered a corrected judgment be entered. [¶9] On May 3, 2018, Tonneson and Issendorf filed their notice o f appeal in this Court, appealing from the March 2018 judgment. On May 4, 2018, one day after the

3notice of appeal was filed, the district court entered purporte d “corrected findings of fact, conclusions of law, and order for judgment” and a “correc ted judgment.”

II [¶10] In an appeal from a bench trial, the district court’s find ings of fact are reviewed under the clearly erroneous standard of review, and its conclus ions of law are fully
reviewable. Sauter v. Miller , 2018 ND 57, ¶ 8, 907 N.W.2d 370; Moody v. Sundley , 2015 ND 204, ¶ 9, 868 N.W.2d 491. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidenc e to support it, or if, after reviewing all of the evidence, this Court is convinced a mistake has been made.
Sauter , at ¶ 8; Moody , at ¶ 9. “In a bench trial, the district court is the determi ner of credibility issues and we will not second-guess the district co urt on its credibility
determinations.” Sauter , at ¶ 8

. “Findings of the trial court are presumptively
correct.” W. Energy Corp. v. Stauffer , 2019 ND 26, ¶ 5, 921 N.W.2d 431 (citing
Brash v. Gulleson , 2013 ND 156, ¶ 10, 835 N.W.2d 798).

III [¶11] Tonneson and Issendorf argue that the district court erredin finding the plaintiffs acquired title to the Tonneson triangle, the Issendo rf triangle, and the platted roadway by adverse possession. [¶12] Generally, N.D.C.C. § 28-01-07 provides a presumption agai nst the adverse possession of real property “unless it appears that such premis es have been held and possessed adversely to such legal title for twenty years before the commencement of such action.” Section 28-01-10, N.D.C.C., states: “When there has been an actual continued occupation of premises under a claim of title exclusi ve of any other right, but not founded upon a written instrument or upon a judgment or decree, the premises actually occupied and no other must be deemed to have been held adversely.” (Emphasis added.)

4[¶13] In this case, the district court found the plaintiffs established adverse possession of the disputed property under N.D.C.C. § 28-01-11, which provides: For the purpose of constituting an adverse possession by a pers on claiming title not founded upon a written instrument nor upon a judgment or decree, land shall be deemed to have been possessed and occupied only in the following cases: 1. When it has been protected by a substantial enclosure; or 2. When it has been usually cultivated or improved. [¶14] “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 exc lusive ownership by the occupant.” Gruebele v. Geringer , 2002 ND 38, ¶ 7, 640 N.W.2d 454; see also Benson v. Feland Bros. Props. , 2018 ND 29, ¶ 15, 906 N.W.2d 98; Benson v. Taralseth , 382 N.W.2d 649, 653 (N.D.1986); Torgerson v. Rose , 339 N.W.2d 79, 84 (N.D.1983);
Woodland v. Woodland , 147 N.W.2d 590, 597 (N.D. 1966). “[A]ctual knowledge of the adverse possession is not necessary if there is a course of conduct directly hostile and these acts of hostility are ‘unmistakably clear.’” Benson , 382 N.W.2d at 653. The person claiming property by adverse possession has the burd en to prove the claim by clear and convincing evidence, and “every reasonable intendm ent will be made in
favor of the true owner.” Gruebele , at ¶ 8. “All of the elements must be satisfied, and if any elements are not satisfied the possession will not confe r title.” Moody , 2015 ND 204, ¶ 11, 868 N.W.2d 491. Whether an adverse possession ha s occurred presents a question of fact, which will not be reversed on appe al unless clearly

erroneous. Moody , at ¶ 11; Gruebele , at ¶ 6.

IV [¶15] Tonneson and Issendorf argue the district court erred in d eciding the plaintiffs had acquired their interest in the platted roadway by adverse p ossession. They argue the court erred in finding the 20-year statutory period for the plaintiffs to adversely possess the platted roadway began to run before the township ha d vacated the dedicated public road in 2014. They contend, therefore, the pl aintiffs could not have

5taken the portion of the roadway belonging to the Tonneson and Issendorf families by adverse possession. [¶16] This Court has long held that adverse possession cannot be obtained against a public entity under North Dakota law. See, e.g., Smith v. Anderson , 144 N.W.2d 530 (N.D. 1966) ; City of Jamestown v. v. Miemietz , 95 N.W.2d 897 (N.D. 1959). In Smith, 144 N.W.2d at 534 (citations omitted), this Court stated, “The question that comes to mind at the outset is whether a municipality can be di vested of title to its public streets and alleys by adverse possession. Our view is t hat it cannot.” The
Court in Smith then explained the basis for this “widely accepted rule”: It has been said that the weight of authority supports the conclusion that title to public streets and alleys cannot be ac quired by prescription. * * * By the great weight of authority it is held that the rights of the public in a street or alley cannot be divested by adverse possession of another for the statutory period, unless the public use has been abandoned by competent authority and the land is held as proprietary property. Thus, no title can arise out of long-continued encroachment or obstruction of a public street or alley. Nor is it material that the adverse possession is of all of the street in question, instead of merely a part thereof. Accordingly, by the weight of authority, title to public streets and alleys cannot be acquired by prescription. In many of the states in which the opposite rule formerly prevailed, statutes have been enacted changing the law to conform to the majority view * * *. 11 McQuillin, Municipal Cor porations § 30.179, at 88-92 (3d ed. rev. 1964). The writers of American Jurisprudence call this view a widely accepted general rule: Before it becomes material whether possession of a street, highway, park, square, or the like is adverse, the particular governmental body against whom the right is asserted must be subject to the running of the statute of limitations; the federal and state governments are not generally subject to the statute, and the tendency is to regard other governmental subdivisions in the same light, at least in regard to property held for public use. It is therefore a widely accepted general rule that the statute

6of limitations does not run in favor of those who occupy property of this character, and that no title can be acquired thereto by such occupancy, no matter how long it has been continued and whatever may have been its character. * * * 3 Am.Jur.2d Adverse Possession § 207, at 300 (1962). Although it is acknowledged by both texts referred to that ther e is authority to the contrary, we are convinced that the rule st ated by the weight of authority is the correct one.
Smith , 144 N.W.2d at 534. While the above-quoted language from the 1964 McQuillin treatise has essentially been retained in the treatise’s curre nt version, the paragraph that follows in the current treatise is also instruct ive in this case: The wisdom of the statute forbidding the acquisition of lands appropriated to public use by adverse possession has been thoro ughly justified by experience. However, in some jurisdictions, there are provisions recognizing or conferring title by adverse possessio n to streets or parts of streets in certain cases. Additionally, st atutes providing that nonuse of streets for a designated period shall constitute an abandonment are not uncommon. Needless to say, the rules re lating to adverse possession apply only to legally constituted streets or alleys

. 11 Eugene McQuillin, The Law of Municipal Corporations § 30:166 (3d ed. 2018 rev. vol.) (footnotes omitted) (emphasis added). [¶17] Courts have held that “[t]itle by adverse possession may b e acquired to an alleged street where it has not been opened to public use, an o ffer to dedicate it has been made but not accepted, or it has been vacated, abandoned, or discontinued.” 2
C.J.S. Adverse Possession § 23 (2013). Another legal encyclopedia explains: Where such highways have not been opened or used , in many jurisdictions, the general rule that highways cannot be lost through adverse possession applies while in other jurisdictions, when s treets are laid out on a plat but are not so used by the public, they are nothing more than private ways and may be adversely possessed . Thus, in some states, title by adverse possession may be acquired relative to streets or parks that are unopened or unaccepted . In the absence of passage of title to the public, a public roadway is not created which woul d be immune from adverse possession. In some jurisdictions, title may be acquired by the adverse possession of land when its use as a hi ghway has been abandoned or vacated.

73 Am. Jur.2d Adverse Possession § 261 (2013) (footnotes omitted) (emphasis added). Therefore, while adverse possession generally cannot be obtaine d against a public entity, title may nonetheless be acquired by adverse possessionwhen a roadway has been unopened to public use, an offer to dedicate it has been unaccepted, or it has been vacated or abandoned. Moreover, “[w]here an abutting owne r owns the fee or has private rights of any street, his or her title or rights, a s distinguished from the rights of the public, may be acquired by adverse possession.” 2 C.J.S. Adverse
Possession § 23; see also 11 McQuillin § 30:167 (“The adverse possession of another for the statutory period may bar the title of an abutting owner , without regard to whether title is acquired as against the public.”). [¶18] In North Dakota, “[a]s a general rule and under our statut es a conveyance by an owner of land bounded by a street or a highway carries the f ee to the center of the way unless the contrary is shown.” Welsh v. Monson , 79 N.W.2d 155, 157 (N.D. 1956) (citing 11 C.J.S. Boundaries § 35); see also N.D.C.C. § 47-01-16 (“An owner of land bounded by a road or street is presumed to own to the c enter of the way, but the contrary may be shown.”). Section 47-10-10, N.D.C.C., prov ides: A transfer of land bounded by a highway, street, alley, or publ ic right of way passes the title of the person whose estate is transferr ed to the soil of the highway, street, alley, or public right of way in f ront to the center thereof unless a different intent appears from the grant . Every conveyance of real estate, which abuts upon a vacated highway, street, alley, or other public right of way, shall be construed, unless a contrary intent appears, to include that part of such highway, street, a lley, or public right of way which attaches either by operation or presumption of law, to such abutting real estate upon such vacation. [¶19] Under N.D.C.C. § 24-06-01, a township board has “general s upervision over the roads, highways, and bridges throughout the township.” In circumstances where a township has laid out a road but fails to open the road withi n ten years, such an unopened road is statutorily declared vacant. See N.D.C.C. § 24-07-31 (“Any road or part thereof laid out by authority of . . . a board of towns hip supervisors, and not opened to public use within ten years from the time when it was laid out, or which thereafter is abandoned and not used for ten years, hereby is d eclared vacant.”).

8Rather than a road laid out by a township, however, this case i nvolves an unopened roadway dedicated in a 1950 plat. [¶20] Here, the district court held that under our law, the 1950 plat containing the platted roadway constituted merely an offer by the owner to ded icate a roadway for public use. The court found, however, the evidence at trial sh owed that at least since the 1960s, no such roadway had ever existed or been used by the public. The court also noted the area landowners had signed an easement covering the roadway actually in use by the owners and the public to ensure access to the var ious lots, which runs along the north boundary of the subject property. The court thus found that “as to the platted roadway, there was no action by or on behalf of the pub lic, or by the public authorities, to complete or accept the offer by the owner to de dicate such roadway for public use.” Relying on Welsh , 79 N.W.2d at 158, the court concluded the platted roadway did not become a public right-of-way held by the townsh ip, but instead remained privately owned property and subject to an adverse pos session claim. [¶21] Tonneson and Issendorf argue the district court erred in r elying on the Welsh case. They contend Welsh is inapplicable because the plat filed in this case included language dedicating the designated road for the public use and the parties recognized the public right to the property. We construe their argument e ssentially to challenge the court’s finding there was no action by the public or public authorities to complete or accept the offer to dedicate the roadway for public use. [¶22] This Court has recently examined the law regulating dedications in the platting of real property: Private land may be dedicated to public use in two ways, pursuant to statute and under the common law. Two distinctions separate the different types of dedication. First, the common law dedicatio n operates by way of an equitable estoppel, whereas a statutory dedication operates by way of grant. Second, a common law dedi cation usually creates a mere easement, whereas in a statutory dedicat ion the fee of the property is in the public. Winnie Dev. LLLP v. Reveling , 2018 ND 47, ¶ 8, 907 N.W.2d 413 (quoting 11A McQuillin § 33:5 (3d ed. Supp. 2017)); see also Becker v. Burleigh Cty. , 2019 ND 68,

9¶ 20, 924 N.W.2d 393. “Dedication arises when a private landow ner sets aside land for public use.” Becker , at ¶ 20. “Dedication may be express or implied, and may be established statutorily or by common law.” Id. “A statutory dedication is in the nature of a grant, while a common-law dedication rests upon the principles of estoppel in pais.” Id. (citations and quotation marks omitted). [¶23] In Welsh , 79 N.W.2d at 158, this Court explained that the filing of the plat constitutes an offer by the owner to dedicate such streets and avenues to public use. “The dedication is completed by action on beha lf of the public by use thereof or by some action of the public authorities.” Id. ; see also Miemietz , 95 N.W.2d at 902. “At common law, an offer to dedicate is not binding and there are n o rights or duties
connected with such an offer un til it has been accepted.” 26 C .J.S. Dedication § 38 (2011); see also Ramstad v. Carr , 31 N.D. 504, 527, 154 N.W. 195, 202 (1915) (“While there is a great deal of conflict in the authorities up on the question of whether an acceptance is necessary in the case of a statutory dedicatio n, still we believe that the better and more prevalent rule is that an acceptance is nec essary.”). This Court has said an acceptance will generally be presumed when the dedi cated property’s use is shown to be beneficial, when all prescribed steps by statuto ry provisions governing dedication have been taken by the owner, or when public authori ties “assign[] . . . hands to the maintenance and repair of such property.” City of Grand Forks v. Flom , 79 N.D. 289, 294, 56 N.W.2d 324, 327 (1952) (quoting 26 C.J.S. Dedication § 45). Whether there is a dedication and an acceptance of the dedicati on are questions of
fact. See Benjamin v. City of Norwalk , 153 A.3d 669, 677 (Conn. Ct. App. 2016) (quoting Meshberg v. Bridgeport City Trust Co., 429 A.2d 865 (C onn. 1980); see also
Winnie Dev. , 2018 ND 47, ¶ 13, 907 N.W.2d 413; Tibert v. City of Minot , 2004 ND 97, ¶ 17, 679 N.W.2d 440. [¶24] Here, on the basis of the evidence at trial, the district court specifically found the platted roadway did not become a public right-of-way held b y the township because no action was taken by the public or public authorities to complete or accept the owner’s offer to dedicate the roadway to public use. The c ourt correctly

10concluded that the roadway remained privately-owned property an d subject to a claim for adverse possession. On this record, while the evidence sho ws the 1950 plat contains a platted roadway dedicated to public use, we conclude the court did not clearly err in its finding no ac tion by the public or public au thorities had been taken to complete or accept the offer to dedicate the roadway for pub lic use. The court therefore did not err in holding the platted roadway was subjec t to an adverse possession claim. 1

1 We note that our decision in Winnie Dev ., 2018 ND 47, ¶ 9, 907 N.W.2d 413, is not dispositive in this case. In Winnie Dev. , we discussed the specific requirements for dedication by plat for a plat that the City of Horace appro ved on June 4, 1979, and was recorded on July 2, 1979. Specifically, the Winnie case applied N.D.C.C. § 40- 50-04, as amended in 1979. See 1979 N.D. Sess. Laws ch. 451, § 3. This section stated in part: “Every plat, when duly certified, signed, and a cknowledged, shall be filed and recorded in the office of the county register of deed s. No plat shall be recorded until it is approved by the governing body affected by the plat and a certificate evidencing such approval is presented to the regist er of deeds.” N.D.C.C. § 40-50-04 (effective July 1, 1979) (emphasis added), repealed by H.B. 1342, 1987 N.D. Sess. Laws ch. 501, § 20; see N.D.C.C. § 40-50.1-03 (re-codifying N.D.C.C. § 40-50-04); see also N.D.C.C. § 40-01-01(3) (1983) (“[g]overning body” defined for title 40 as “the city council or the board of city commissioner s, as the case may be, of a municipality concerned or affected”); N.D.C.C. § 40-01-01(4) (1983) (“[m]unicipal corporation” or “municipality” defined as including “all cities organized under the laws of this state, but shall not include any other political s ubdivision”). Under the law in 1979, it was clear the City was required to approve the plat before the plat could be filed with the register of deeds. This case, however, involves a plat filed in the 1950s. Setting aside the question of whether the governing body involved here would be c onsidered a municipality at the time for purposes of title 40, N.D.R.C. 194 3 § 40-5004, provided in part: “After the plat or map has been completed, it shall be certified by the surveyor and the officers, if it is correct. No plat shall be recorded until it is approved by the engineer of the municipality affected by the plat, or if there is no such municipal engineer, by the county surveyor.” On its face, this section re quired approval by the municipal engineer or county surveyor. Here, the district court made specific findings of fact that no action had beentaken by the public or public a uthorities, necessarily including the township, to complete or accept the offer to dedi cate the road to public use. Because the plat in this case was filed in the 1950s, it i s not governed by the law in effect in the Winnie case.

11[¶25] Tonneson and Issendorf further rely on James v. Griffin , 2001 ND 90, 626 N.W.2d 704, to argue the 20-year adverse possession period for the portion of the platted road claimed by Tonneson and Issendorf began to run onl y after the township vacated the dedicated public road. The James case, however, involves the principle of tacking to establish the 20-year period for a new boundary l ine by acquiescence between adjoining landowners. “[W]hen tacking is relied upon t o meet the 20-year period, it must result in a single continuous acquiescent posse ssion.” James , at ¶ 11. We explained that the temporary possession in a government enti ty did not relieve a party claiming acquiescence or adverse possession from showing the entity’s possession was adverse to the true owner, to be tacked to satis fy the 20-year period.
Id. [¶26] The Court in James ultimately held the 20-year period of acquiescence had been interrupted when the city briefly took title to the homeow ners’ property. James , 2001 ND 90, ¶¶ 14-15, 626 N.W.2d 704. Because no evidence show ed the city recognized the claimed boundary, we held that the statutory per iod began to run when the city relinquished its title and that the homeowners could n ot establish acquiescent possession of the disputed area for the 20-year period. Id. The James case does not address adverse possession against a municipality of an unaccep ted, unopened platted roadway. Tonneson and Issendorf’s reliance on this case theref ore is misplaced. [¶27] We conclude the district court’s findings that the offer t o dedicate the platted roadway to public use was unaccepted and that the road was neither opened nor used by the public were not clearly erroneous. We further hold the court did not err in concluding title to the unaccepted, unopened platted roadway co uld be acquired by adverse possession.

V [¶28] Tonneson and Issendorf argue the district court erred in f inding adverse possession because the plaintiffs’ use and occupation of the di sputed property were

12insufficient to establish the requisite elements for the statut ory period. They contend plaintiffs’ use of the dedicated public right-of-way by placing a small fence, a shed, and temporary storage of recreational equipment for less than t wo years after the township vacated the platted road did not constitute a substant ial enclosure or improvement of the property. They claim plaintiffs’ use of the northern portion’s trees and bushes for privacy and dust control by leaving the pr operty in a natural state did not constitute usage for adverse possession purposes. Theyalso argue that plaintiffs’ erecting a second storage shed on the Tonneson prop erty, only ten years before the filing of this action, did not meet the 20-year occu pancy requirement and also that temporarily placing garbage cans on the Tonneson prop erty for garbage pickup did not constitute an improvement to property and continuous usage. [¶29] While Tonneson and Issendorf dissect the specific findings that the district court found established the plaintiffs’ occupation and use of the disputed property, it is the “combination of various acts” that may establish adverse possession. See 3 Am.
Jur.2d Adverse Possession § 26. Generally, “[a]ll acts of a possessory nature by an adverse claimant are to be considered collectively, rather than independently, in determining the sufficiency of actual possession for purposes o f an adverse possession
claim.” Id. As discussed, to establish adverse possession the claimants a ct’s must be actual, visible, continuous, notorious, distinct, and hostile and of such character to unmistakably indicate an assertion of the occupant’s claim of e xclusive ownership.
See Benson , 2018 ND 29, ¶ 15, 906 N.W.2d 98; Gruebele , 2002 ND 38, ¶ 7, 640 N.W.2d 454. In this case the plaintiffs claimed adverse posses sion under N.D.C.C. § 28-01-11(2), which provides that the “land shall be deemed to have been possessed and occupied only . . . [w]hen it has been usually cultivated o r improved.” [¶30] Here, the district court found that the plaintiffs’ use an d occupation of the property had resulted in the property being “usually cultivated or improved.” The court found their possession had been more than ordinary care and maintenance of the property. The court found that since the 1960s the plaintiffs placed multiple trailers on the property; they cleared trees and brush; they added sheds to the property; they

13added gravel as a base for the trailer homes and to maintain an d improve the roadway into the property; they poured cement for a mud room on one tra iler as well as for a base for a firewood shelf; and they added a well to the property. The court specifically found the conduct was more than simple maintenance and lawn car e and, considering the nature and character of the lake property, satisfied N.D.C. C. § 28-01-11(2). The court found that the plaintiffs and their families have used th e entire disputed property as if it were their own since the early 1960s to the present an d that the plaintiffs’ possession of the property had been continuous. The court’s in spection of the disputed property also supports its fact finding regarding the disputed property. [¶31] Tonneson and Issendorf argue that, even if this Court conc ludes the plaintiffs sufficiently cultivated and improved the disputed property, the plaintiffs are only able to claim the “shed area” under N.D.C.C. § 28-01-10, and plainti ffs have not provided a metes and bounds description of that area. We reject, howeve r, such a narrow interpretation of N.D.C.C. § 28-01-10. The district court foun d the plaintiffs’ use and occupation consisted of the entire area of disputed property. [¶32] To the extent Tonneson and Issendorf argue the plaintiffs and predecessors in interest did not establish the requisite continuousness of thei r possession, we conclude the district court did not err in considering the character and nature of the disputed property. Courts have held a claimant’s periodic activities onland may be sufficiently “continuous” to support an adverse possession claim when the ac tivities “are consistent with the character of the land throughout the posses sory period.” See 3
Am. Jur.2d Adverse Possession § 69. “For example, the regular use of property as a summer home and for recreation purposes during summers can be c ontinuous for a claim of adverse possession.” Id. (citing Kay v. Biggs , 475 P.2d 1 (Ariz. Ct. App. 1970); Mahoney v. Heebner , 178 N.E.2d 26 (Mass. 1961); Nechtow v. Brown , 120 N.W.2d 251 (Mich. 1963); Lee v. Raymond , 456 A.2d 1179 (R.I. 1983); Burkhardt
v. Smith , 115 N.W.2d 540 (Wis. 1962)); see also Booten v. Peterson , 288 P.2d 1084, 1086 (Wash. 1955) (disputed property’s use as a “beach place an d summer home” sufficient for adverse possession), overruled on other grounds by Chaplin v. Sanders ,

14676 P.2d 431, 436 n.2 (Wash. 1984); Howard v. Kunto , 477 P.2d 210, 213-14 (Wash. Ct. App. 1970) (rejecting “the conclusion that summer occupancyonly of a summer beach home destroys the continuity of possession” because “the requisite possession requires such possession and dominion ‘as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like n ature and condition’”), overruled on other grounds by Chaplin , 676 P.2d at 436 n.2. [¶33] “Continuous use or possession therefore may be established notwithstanding seasonal breaks from the use of the property.” 3 Am. Jur.2d Adverse Possession § 69. “[C]ontinuity may be maintained by intermittent or seasonal use of land which is primarily or obviously adapted to such use . . . . It is enoug h that the land be devoted to the ordinary uses of the adverse claimant provided they are such as to put the true proprietor on notice.” 3 C.J.S. Adverse Possession § 151 (footnotes omitted). On this record, we conclude the district court did not err in finding the necessary continuous use and possession in consideration of the character and nature of the property as recreational lake property. [¶34] Tonneson and Issendorf contend the district court erred infinding the plaintiffs’ use of another’s trees for privacy and dust control by leaving such property natural constitutes “usage” of those trees for adverse possessi on purposes. While it has been acknowledged that “woodland” differs from other types of land, there must still be some continuous acts of adverse possession. See Cuka v. Jamesville
Hutterian Mut. Soc. , 294 N.W.2d 419, 422-23 (S.D. 1980); 2 C.J.S. Adverse
Possession § 40. “Actual possession of a woodland, or wooded, unenclosed , undeveloped parcel, is established by residence or cultivation of a part of the tract of land to which the woodland belongs.” 2 C.J.S. Adverse Possession § 40. Although a wooded area need not be completely cleared before the statuto ry 20-year adverse possession period begins to run, “[i]t is only necessary that acontinuous clearing takes place and that the land then be used for other suitable p urposes.” Cuka , 294 N.W.2d at 422. “The possession need not be unceasing, but the evidence should be

15such as to warrant the inference that the actual use and occupa tion have extended over the required period.” Id. (citations and quotation marks omitted). [¶35] In this case, the district court specifically found the wo oded area, while not cleared or disturbed, had in fact been used and possessed by th e plaintiffs and their families since the 1960s and that they had maintained it in its natural condition for privacy from the common roadway, as a part of the “enhanced enj oyment” of the disputed property. The physical location of the wooded area wa s also noted by the court and is significant. The wooded property was on the plain tiffs’ side of the road created by the consensual easement. Gravel on that portion of the road was maintained by the plaintiffs. Although minimal, the maintenanc e required for the wooded area included the occasional clearing of trees and brush , and was done by the plaintiffs. While this may be a close case, the court’s findin gs do support the notion of continuous use of the disputed property and as establishing privacy from the roadway actually in use. [¶36] The district court’s findings are presumptively correct, a nd we will not second-guess the court on its credibility determinations. Ther e is evidence in the record that supports the district court findings that the plain tiffs and their predecessors used the property during the summer months and in the off-seaso n. From the evidence of the plaintiffs’ acts supporting the district court’ s findings, we conclude it is clear they intended to claim title to all of the disputed area and to hold it as owner. As the district court found, their possession of the di sputed property for more than the statutory period was actual, visible, continuous, noto rious, distinct, and hostile, and of such character to unmistakably indicate an asse rtion of claim of exclusive ownership. [¶37] On the basis of the record, we conclude the district court ’s findings were not induced by an erroneous view of the law, there is evidence in the record to support the findings, and we are not convinced a mistake has been made. We affirm the district court’s finding that the plaintiffs adversely possessed the dis puted property.

16VI [¶38] While we affirm the March 2018 judgment, we also address ajurisdictional issue regarding the district court’s “corrected judgment” enter ed on May 4, 2018, one day after Tonneson and Issendorf filed their May 3, 2018, notic e of appeal from the March 2018 judgment. We have explained: Generally, a district court loses jurisdiction when a notice of appeal is filed. The jurisdiction of the Supreme Court attache s upon the filing of the appeal, and generally the trial court has no further jurisdiction in the matter. Further, [a]n order or judgment en tered by the trial court after an appeal has been filed is ordinarily vo id for lack of jurisdiction.
CHS Inc. v. Riemers , 2018 ND 101, ¶ 16, 910 N.W.2d 189 (quoting Matter of S.E. , 2012 ND 168, ¶ 9, 820 N.W.2d 389 (citations omitted)) (quotatio n marks omitted).
In CHS , we vacated a corrected amended judgment because the district court lacked jurisdiction to enter it after the appeal was filed. Id. ; cf. N.D.R.Civ.P. 60(a) (“But after an appeal has been docketed in the Supreme Court and whil e it is pending, such a mistake may be corrected only with the Supreme Court’s leave. ”). [¶39] Here, Tonneson and Issendorf appealed from the March 2, 20 18, judgment, which we have affirmed. The district court entered the May 4, 2018 “corrected findings of fact conclusions of law and order for judgment” and “corrected judgment,” which includes the plaintiffs’ requested costs and disbursement s. No issue regarding costs and disbursements was raised in the present appeal. Howe ver, because the
district court was w ithout jurisdicti on to enter its corrected findings of fact, conclusions of law and order for judgment and corrected judgmen t, we remand the case only for the court to reenter them with jurisdiction.

VII [¶40] We have considered the remaining arguments and conclude th ey are either without merit or unnecessary to our decision. The March 2018 j udgment is affirmed, but the case is remanded to the district court for entry of the corrected order and

17corrected judgment, as contemplated under the district court’s April 2018 order regarding costs and for corrected judgment. [¶41] Gerald W. VandeWalle, C.J. Daniel J. Crothers Lisa Fair McEvers

Tufte, Justice , concurring and dissenting. [¶42] I agree with the majority opinion except to the extent it affirms the district court’s conclusion that one may adversely possess a neighboring landowner’s trees by “using” them as a barrier to control dust and preserve priva cy. Section 28-01-10, N.D.C.C., requires “actual continued occupation of premises” an d extends adverse possession only to “the premises actually occupied and no other .” Section 28-01-11, N.D.C.C., permits a finding that land has been possessed and oc cupied “only in the following cases: 1. When it has been protected by a substantial enclosure; or 2. When it has been usually cultivated or improved.” The district court correctly found it “beyond dispute” that there is no substantial enclosure around the property. The case relied on by the majority in paragraph 34 does not support the district court’s finding of adverse possession of the wooded area here. In Cuka v. Jamesville Hutterian Mut.
Soc. , the South Dakota Supreme Court relied on a substantial enclos ure in order to find adverse possession of both cultivated and uncultivated parts of the tract at issue there. 294 N.W.2d 419, 422-23 (S.D. 1980) (“The river in this instance was as much of a substantial enclosure as any fence or other boundary marke r could have been.”). [¶43] Here, the district court found the wooded part of the Isse ndorf triangle was “kept in its natural condition,” was “a natural barrier,” and “ Plaintiffs . . . did . . . choose not to disturb the natural condition of that part of the property.” It went on to “acknowledge[] that portions of the Issendorf triangle remain i n its naturally wooded state, and there has not been any clearing or improvements of that property.” Despite these findings, the district court concluded it had been “used and possessed by the
Plaintiffs . . . and the maintenance of it in its natural condi tion provided the Plaintiffs privacy from a common roadway, to their enhanced enjoyment of t he property.”

18[¶44] If the statute permits a finding of adverse possession on this basis, the requirement of physical occupation demonstrated by a substantia l enclosure, cultivation, or improvement has been all but eliminated.

[¶45] I respectfully dissent as to adverse possession of the woo ded area that was left
in its natural condition. I would remand for the district court to determine the boundary between the property that was actually occupied and th e wooded area that

was not. [¶46] Jerod E. Tufte Jon J. Jensen

19