“Hostility Requires Objective Acts” – Roth v. Meyer and the Refined Standard for Proving Adverse Possession in North Dakota

Introduction

Roth v. Meyer, 2025 ND 116, is the North Dakota Supreme Court’s latest examination of adverse possession, family property disputes, and unjust enrichment. The litigation concerned a 10-acre interior parcel in Grant County on which Gary Meyer and Mary Roth lived together for two decades. Competing chains of title arose from (i) the Jean L. Ehrmantrout Residuary Trust (benefiting Meyer’s sons) and (ii) successive quitclaim deeds flowing from Meyer to Roth and then to her son, Aric Roth. After the district court quieted title in the Roths on remand, the Supreme Court—by a 4-1 vote—reversed that portion of the judgment, clarified the evidentiary rigor required to prove “hostility,” and articulated limits on sua sponte reliance on adverse possession when the theory was never pleaded. The Court simultaneously affirmed a $52,500 unjust-enrichment award to Mary Roth arising from unpaid personal loans.

Summary of the Judgment

Quiet Title: Reversed. The Court held the evidence did not meet the clear-and-convincing standard (with “special rigor” in family contexts) to show Meyer had acquired the parcel by adverse possession before quit-claiming to Roth. Title must instead be quieted in the Meyer trustees.
Access Language: Reversed. Relief concerning road access/easement was unsupported by findings of fact.
Unjust Enrichment: Affirmed. Meyer must reimburse Roth $52,500 for loans that conferred a benefit without justification.
Disposition: Judgment affirmed in part, reversed in part, case remanded for proceedings consistent with the opinion.

Analysis

1. Precedents Cited and Their Influence

Key authorities shaped the Court’s reasoning:

Roth v. Meyer, 2024 ND 113 – The immediate prior appeal set the parameters of remand (finding possession periods and hostility, then quieting title).
Yorgerson v. Rase, 339 N.W.2d 79 (N.D. 1983) – “Special rigor” applies where adverse possession is claimed against family members. The majority emphasized the district court did not apply this heightened scrutiny.
Great Plains Royalty Corp. v. Earl Schwartz Co., 2022 ND 156 – Restated the clearly-erroneous standard governing quiet-title fact questions.
Cranston v. Winters, 238 N.W.2d 647 (N.D. 1976) – Recorded documents alone cannot establish adverse possession; relied upon to discount testimony about mortgages.
Walstad v. Walstad, 2013 ND 176 – Mandate rule. The Court reiterated that district courts must track appellate remand instructions exactly.
Smestad v. Harris, 2012 ND 166 – Five-element test for unjust enrichment, forming the template for affirming restitution here.

2. The Court’s Legal Reasoning

Three doctrinal pillars supported the reversal on adverse possession:

Objective vs. Subjective Hostility. The district court treated absence of a family agreement and Meyer’s belief that he owned the land as proof of hostility. The Supreme Court clarified that hostility must be objectively manifested through open, notorious acts that unmistakably notify the true owner, quoting multistate authority for the proposition that subjective belief is irrelevant.
Evidence Must Satisfy “Special Rigor.” Because the dispute was intra-family, normal clear-and-convincing proof requirements are supplemented by an expectation of “special rigor.” The majority concluded the record—compiled before adverse possession was at issue—simply lacked the concrete, physical acts (e.g., fencing, exclusive cultivation, posted notices) required.
Mandate Rule and Scope of Remand. While acknowledging that the district court tried to follow directions, the majority held it nonetheless erred by (i) treating subjective belief as dispositive and (ii) overlooking statutory limitations on what land can be deemed adversely possessed (§§ 28-01-10 & 11).

On unjust enrichment, the Court accepted the district court’s chain of reasoning under Smestad. Loan checks enriched Meyer; Roth was correspondingly impoverished; no contractual or statutory remedy survived the statute of frauds; restitution therefore lay in equity.

3. Impact of the Decision

Elevated Evidentiary Threshold. Litigants can no longer rely on informal occupancy, family acquiescence, or uncorroborated testimony about paperwork (e.g., mortgages) to establish hostility. Concrete, outward acts—fencing, posting, exclusive improvements—must be shown.
Pleading Discipline. Trial courts are cautioned against injecting unpleaded theories (such as adverse possession) after close of evidence without reopening the record; to do so risks reversal for inadequate evidentiary development.
Recorded-Document Principle Reinforced. The Court reaffirmed that title examination duties do not include scouring for adversarial filings; hostile possession must occur on the ground, not merely in the recorder’s office.
Mandate-Rule Clarification. Even when the trial court believes it is meticulously following remand instructions, its findings must still satisfy substantive law—including burdens of proof and “special rigor.”
Equitable Restitution Endorsed. The unjust-enrichment affirmation signals receptiveness to equitable work-arounds where the statute of frauds blocks recovery on oral agreements, provided the elements are proven.

Complex Concepts Simplified

Adverse Possession: A way to obtain legal title by possessing land as if you own it—openly, continuously, exclusively, and against the true owner—for a statutory period (20 years in North Dakota). Think of it as “earning” ownership by treating the land as yours without being stopped.
Hostility (in this context): Not personal animosity, but possession that is inconsistent with the true owner’s rights. It must be obvious enough to signal, “I claim this land.”
Mandate Rule: When an appellate court sends a case back (“remands”), the lower court must do exactly what it was told, no more and no less.
Unjust Enrichment: A fairness doctrine: one person shouldn’t profit at another’s expense unless there’s a good legal reason. Courts can order repayment even without a valid contract.
Clear and Convincing Evidence: A high evidentiary bar—more than “preponderance” but less than “beyond a reasonable doubt.” The proof must make the fact-finder firmly believe the claim is highly probable.

Conclusion

Roth v. Meyer re-draws the evidentiary map for adverse-possession claimants in North Dakota. The Supreme Court insists on objective, unmistakable acts of hostility, particularly within familial settings, and disallows reliance on subjective beliefs or documentary filings alone. At the same time, the decision affirms equitable relief via unjust enrichment when contractual avenues are foreclosed, illustrating the Court’s balanced approach between strict property doctrines and equitable fairness. Practitioners should view Roth as a cautionary tale: plead every theory early, build a record of overt acts, and remember that quiet title demands both procedural precision and evidentiary heft.