Opinion
No. C7-99-980.
Filed December 21, 1999.
Appeal from the District Court, St. Louis County, File No. C195601642.
Glenn P. Bruder, Mitchell Bruder, (for appellants)
Gary Salin, Janet Salin, (pro se respondents)
Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Davies, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
This is a boundary dispute. Appellants Charles L. Jacobsen and Martha E. Jacobsen claim that the boundary has been altered through the doctrine of practical location by acquiescence. The fact-finder concluded that appellants had not by clear and convincing evidence proved that there had been acquiescence. We affirm.
FACTS
This boundary dispute involves: (1) a northern parcel owned by appellants, the Jacobsens; and (2) a southern parcel owned by respondents Gary and Janet Salin. St. Louis County records show that the section line that forms the common boundary is located on County Highway 101. Appellants claim that a different boundary line has been established about 60 feet south of County Highway 101 through the doctrine of "practical location by acquiescence."
This dispute comes to us a second time. On the first occasion, we concluded that the trial court (following a bench trial) had applied the doctrine of practical location to a boundary line not in dispute (that is, to the boundary between the southern parcel and another parcel located to the west, also owned by appellant). Jacobsen v. Salin, No. C1-97-470 (Minn.App. Nov. 4, 1997). We remanded on the sole issue of whether, before 1954, the prior owners had acquiesced to a different boundary line between the parcels actually in dispute. Id. The parties submitted the remanded issue to a referee on the record generated through the bench trial.
The original government survey of section 33 (where both parcels are located) was in 1882, but in 1904 H.A. Robinson placed an iron pipe (the "Robinson pipe") to mark a 1/16th corner of the section. That pipe is about 60 feet south of County Highway 101. In 1921, mining engineer Charles Kerr attempted to locate the section quarter corners from the original 1882 government survey, but most markers were lost or obliterated. Kerr resurveyed section 33 and spoke with local landowners. He then set new monuments and iron pins to locate the quarter and 1/16 corners and registered them as accepted markings for St. Louis County. He acknowledged the existence of the Robinson pipe, but set a new 1/16 corner where County Highway 101 now runs, about 60 feet north of the Robinson pipe.
Appellant Charles Jacobsen claims that his father (who owned the northern parcel from 1920-1964) and Mr. Agnich (who owned the southern parcel until 1953) acquiesced to the Robinson pipe as marking the east end of their common boundary, even though the 1921 Kerr survey and subsequent St. Louis County records reflect a boundary on County Highway 101. The sole issue submitted to the referee was whether these prior owners acquiesced to a boundary marked by the Robinson pipe.
Because the prior owners were deceased or absent, the evidence before the referee was limited to the testimony of one appellant, one respondent, and two expert surveyors. The evidence on acquiescence was limited to the following: (1) testimony by appellant that he planted trees in 1947 on the disputed tract south of County Highway 101; (2) a deed description prepared when Agnich sold the southern parcel to Henry Salin (respondent's father) in 1954 that matched the claimed practical location set by the Robinson pipe in several respects; (3) testimony by appellant that both Agnich and Henry Salin requested and were granted permission to use an auxiliary driveway across the disputed parcel; (4) a rough sketch of the southern parcel, offered by appellants, that shows the common boundary 60 feet south of County Highway 101. The sketch was used by Henry Salin in prior litigation.
The referee concluded that this was not clear and convincing evidence that the prior owners had acquiesced to a different boundary marked by the Robinson pipe because the evidence also showed that: (1) appellant's father had requested the 1921 Kerr survey, an indication that he was uncertain of his southern boundary; (2) appellant's father was on the chain crew during the 1921 Kerr survey, so he would have known after that survey where the legal southern boundary lay; (3) although appellant planted trees on the disputed parcel in 1947, he did not present evidence on how many trees were planted or how they showed acquiescence by the Salins' predecessor; (4) there are no fences, tree rows, or other evidence marking the boundary line; and (5) appellant testified that his father rented the disputed land from Agnich until 1948, and later offered to buy the parcel, which is not consistent with his claim of ownership. The referee found that the testimony was "partially contradictory" to the claim of acquiescence and "far from clear and convincing." The district court adopted the referee's findings.
DECISION I. Practical Location of Boundary
The trial court's findings on practical location of a boundary "will not be reversed on appeal unless they are manifestly and palpably contrary to the evidence." Gifford v. Vore, 245 Minn. 432, 434, 72 N.W.2d 625, 627 (1955); see Minn.R.Civ.P. 52.01.
A party must provide clear and convincing evidence to establish a boundary by practical location. See Phillips v. Blowers, 281 Minn. 267, 269-70, 161 N.W.2d 524, 526-27 (evidence must be "clear, positive and unequivocal") (citation omitted); see also Engquist v. Wirtjes, 243 Minn. 502, 507-08, 68 N.W.2d 412, 417 (1955) (practical location is equivalent to adverse possession and requires same clear and convincing evidence).
In this case, the sole issue is whether the prior landowners acquiesced to the claimed boundary for the requisite 15 years. The acquiescence required is not merely passive consent, but conduct from which assent may be reasonably inferred. Engquist, 243 Minn. at 507-08, 68 N.W.2d at 417. Thus, although acquiescence exists when adjoining landowners mutually construct a fence as near the property line as possible, Fishman v. Nielsen, 237 Minn. 1, 5-8, 53 N.W.2d 553, 555-57 (1952), acquiescence does not exist when landowners erect markers or physical barriers that are not intended to identify boundaries. See Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980) (erecting fence for uncertain purpose did not establish acquiescence); Gifford, 245 Minn. at 435-36, 72 N.W.2d at 628-29 (establishing line of rocks one party believed to be boundary did not establish acquiescence by other); Weis v. Kozak, 410 N.W.2d 903, 906 (Minn.App. 1987) (constructing fence to restrain cattle did not establish acquiescence); LeeJoice v. Harris, 404 N.W.2d 4, 7 (Minn.App. 1987) (failing to dispute that sight line was true boundary line did not establish acquiescence).
In this case, we uphold the findings of the referee (adopted by the district court) as they are not manifestly contrary to the evidence presented. As the referee found, appellant's father would have known where his legal southern boundary was located after the 1921 Kerr survey. Evidence that both parcel owners consciously rejected this legal boundary, and instead acquiesced to an entirely different boundary, would have to be compelling. Such evidence is lacking. The referee concluded that the evidence presented did not rise to the level of clear and convincing. The record supports this conclusion.
The evidence that appellant planted trees on the disputed parcel south of County Highway 101 is of limited value and only shows passive consent, not acquiescence.
The evidence that the deed description from the 1954 sale of the southern parcel starts at the 1/16th corner and proceeds "295 feet south to the shore of Lake Majestic" is also not compelling. That distance is less than the current distance from County Highway 101 to the shore, but respondents countered that the shore of Lake Majestic is swampy and has receded over the years. Further, they argued that, even if the distances do not coincide, the deed description still starts from the 1/16th corner and proceeds to the shore of Lake Majestic, and these positive landmarks would control over any distance discrepancy. See generally Sandretto v. Wahlsten, 124 Minn. 331, 333-34, 144 N.W. 1089, 1090 (1914) (in construing deeds with inconsistent descriptions, reference to monuments will usually control over stated distances).
The referee also implicitly rejected as proof of acquiescence the rough sketch used by Henry Salin in a prior litigation. The record shows that no one located the person who prepared the drawing, and respondent denied ever seeing the drawing before this litigation. Without further foundation, this sketch does not provide clear and convincing evidence that the prior landowner (Agnich) acquiesced to the Robinson pipe as boundary marker.
The referee also relied on the fact that there was along the claimed boundary no fence line, tree line, or other markings that would provide physical evidence that the two owners recognized and acquiesced to that boundary. Typically, there is some barrier or markings to signify a boundary of acquiescence because it is essential that the parties know where a boundary is in order to acquiesce to its existence. In this case, there was only the Robinson pipe at one end of the claimed boundary.
Finally, the referee relied on appellant's testimony that his father rented and later offered to buy the disputed parcel, actions inconsistent with a claim of ownership. After a careful review of the record on the point, consisting of a somewhat garbled series of questions to appellant, we agree with appellant that the findings of the referee on this limited point are not supported by the evidence. It appears appellant, in his testimony, was not referring to the disputed parcel. But even without this one finding, the ultimate conclusion that appellant has not proved acquiescence by clear and convincing evidence is fully supported by other evidence.
II. Effect of Re-Survey
Appellants also assert a second basis for the different boundary line. They claim that the 1921 Kerr "re-survey" cannot change the original southern boundary as fixed by the Robinson pipe. This issue was never raised in the first bench trial and could not be considered on remand or in this appeal. Even if it had been properly raised, appellants would not prevail. The law is that the original government survey of the section controls over any subsequent re-surveys — even if the boundary was incorrectly set by the original government surveyor. United States v. Doyle, 468 F.2d 633, 636 (10th Cir. 1972). Appellants have not proved that the original 1882 government survey would line up with the Robinson pipe placed in 1904.