Roth v. Meyer – The North Dakota Supreme Court Re-entrenches the “Special Rigor” Standard for Adverse Possession Among Family Members and Rejects Subjective Belief & Recorded Mortgages as Proof of Hostile Claim

Introduction

Citation: Roth v. Meyer, 2025 ND 116, Sup. Ct. of North Dakota, 18 June 2025.

This appeal stems from a long-running intra-family dispute over ownership of a ten-acre parcel at the heart of a Grant County ranch. Mary Roth (companion of rancher Gary Meyer) and her son Aric Roth argued that Gary had acquired the parcel by adverse possession and successfully conveyed it to them by quit-claim deed. Gary’s children and other Meyer family trustees (collectively “the Meyers”) counter-claimed that record title remained in the Jean L. Ehrmantrout Residuary Trust.

The District Court, after an earlier remand, again quieted title in the Roths, found an easement-like right of access in their favour, and ordered Gary to repay Mary $52,500 under an unjust-enrichment theory. On second appeal, the Supreme Court (Justice Tufte) affirmed the unjust-enrichment award but reversed the quiet-title ruling and access conditions, remanding with instructions to quiet title in the Meyer trustees. Justice Crothers concurred in part but, stressing the mandate rule, would have affirmed the quiet-title result.

The decision chisels out two major doctrinal clarifications:

It re-asserts the “special rigor” and clear-and-convincing evidence requirements when adverse possession is asserted within a family context, emphasising that subjective belief, uncorroborated assertions of mortgages, and recorded documents alone cannot establish hostility or exclusivity.
It stresses the limits of the mandate rule and the need for district courts to remain within the factual record and the theories pleaded; adverse possession cannot be resurrected sua sponte without a fully developed evidentiary foundation.

Summary of the Judgment

Quiet Title Reversed. The Court held that the evidence did not satisfy the heightened standard for adverse possession. Gary Meyer’s long occupation, subjective belief in ownership, and reference to “mortgaging” the land were insufficient hostile acts. Without clear proof of hostility, exclusivity, and “unmistakably clear” notice to the true owners, title remained with the Trust.
Access Order Vacated. Because title must be quieted in the Trust, the trial court’s direction that the Meyers not impede the Roths’ access or that they enjoy an implied easement was beyond its remit and unsupported by findings.
Unjust Enrichment Affirmed. The trial court’s $52,500 restitution award to Mary Roth was upheld. The Court applied the traditional five-part Smestad test, finding enrichment (unrepaid loans), impoverishment, nexus, lack of justification, and no adequate legal remedy (the statute of frauds barred direct enforcement of the loan contracts).

Analysis

1. Precedents Cited and Their Influence

Roth v. Meyer, 2024 ND 113 – the immediate prior appeal; set the remand instructions. The current decision interprets and constrains those instructions.
Torgerson v. Rose, 339 N.W.2d 79 (N.D. 1983) – source of the “special rigor” language for intra-family adverse possession. Reinforced here to underscore the evidentiary burden.
Great Plains Royalty Corp. v. Earl Schwartz Co., 2022 ND 156 – articulates the clearly-erroneous standard for factual review in quiet-title suits; applied in scrutinising the District Court’s findings.
Gimbel v. Magrum, 2020 ND 181 & Hovet v. Dahl, 2024 ND 129 – emphasise that mowing, grazing, or informal agricultural use seldom suffices to prove adverse possession without substantial enclosure or cultivation.
Cranston v. Winters, 238 N.W.2d 647 (N.D. 1976) – clarifies that recorded instruments (e.g., mortgages) do not give notice of hostile possession and cannot substitute for open, notorious acts.
Smestad v. Harris, 2012 ND 166 – provides the five-factor test for unjust enrichment, used to affirm the restitution award.

2. Legal Reasoning of the Court

a. Mandate Rule & Procedural Posture. The Court reminded trial judges that remand instructions must be followed exactly (“find who possessed; determine hostility; quiet title accordingly”). Though the District Court addressed hostility, it rested on insufficient facts and ignored the elevated family-context standard.

b. Hostility & Exclusivity Re-defined. The Court differentiated between:

Subjective belief – Gary’s claim that he “thought he owned it” is irrelevant; hostility is objective.
Recorded documents – Mortgages are simply instruments reflecting whatever interest the mortgagor possesses; they do not fence out true owners and hence do not constitute “hostile acts”.
Use consistent with familial permission – In family settings, continued residence or ranching is typically presumed permissive absent clear evidence to the contrary.

The Court held that absent fencing, exclusion of the title holders, notices, or other unequivocal acts, the occupation was ambiguous and failed the “unmistakably clear” standard.

c. Evidentiary Deficiency. Because adverse possession was first injected by the trial court sua sponte after the evidentiary close, the record lacked proof on key statutory elements (N.D.C.C. §§ 28-01-10 & 28-01-11). Under Overbo v. Overbo, courts may not pivot to unpleaded theories without allowing parties to build a record.

d. Unjust Enrichment. The court walked through each Smestad factor, confirming that even if contract enforcement is barred (statute of frauds), equity may compel restitution where enrichment is incontrovertible and no legal remedy exists.

3. Impact of the Judgment

Heightened Evidentiary Expectations. Litigants asserting adverse possession—especially against relatives—must now marshal documentary or testimonial evidence of overt hostile acts (posting signs, fencing, recorded affidavits of adverse claim, notices to record owner, etc.).
Clarified Inefficacy of Mortgages & Subjective Intent. Practitioners can no longer rely on mortgage documents or a client’s belief as indicia of hostility; concrete physical or communicative acts are required.
Procedural Discipline Post-Remand. Trial courts must hew strictly to appellate mandates and resist supplementing the record or legal theories unless the mandate expressly authorises it.
Equitable Restitution Despite Contract Barriers. The affirmation of restitution underscores that equity can bridge gaps left by the statute of frauds, signaling potential recovery avenues in domestic-partner property disputes.
Future Quiet-Title Litigation. Title examiners and rural practitioners should reevaluate any opinion letters or adverse-possession claims rooted in long-standing family occupation without clear hostility; the bar is now appreciably higher.

Complex Concepts Simplified

Adverse Possession. A way to gain ownership by occupying someone else’s land openly, continuously, and hostilely (i.e., without permission) for a statutory period (20 years in ND). The claimant must act in a manner that unmistakably signals “this is mine.”
Hostile Possession. Not “angry” conduct; rather, possession that conflicts with the true owner’s rights. Merely living there with presumed family permission is not hostile.
Special Rigor Standard. When family members are involved, courts presume occupancy is friendly or permissive. Thus, stronger proof is needed to establish hostility—such as recorded adverse-claim affidavits, fencing out the owner, or explicit notices.
Unjust Enrichment. A remedy whereby a court orders repayment when one party benefits unfairly at another’s expense and no contractual or statutory remedy suffices.
Mandate Rule. Once an appellate court sends a case back with instructions, the trial court must do precisely what it was told—nothing more, nothing less.

Conclusion

Roth v. Meyer is a cautionary tale for litigants and trial courts alike. For litigants, the decision underscores that adverse possession—particularly within families—demands unequivocal, documented hostility, not mere longevity of occupation or undocumented mortgages. For judges, it reaffirms adherence to appellate mandates and the necessity of detailed findings anchored in the record. Finally, the Court’s willingness to grant equitable restitution where the statute of frauds blocked legal relief signals the continued vitality of unjust-enrichment claims in domestic and informal-loan contexts.

Going forward, North Dakota property practitioners must treat intra-family adverse-possession theories with heightened skepticism, and parties who believe they own land by long use should consider formalising their claims (e.g., quiet title actions, boundary agreements, recorded affidavits) before conflicts arise. The Court has made clear that subjective belief and undocumented dealings will not suffice when true title is on the line.