James A. Nilsson, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0182

James A. Nilsson,
Respondent,

vs.

Jeannie Ball,
Appellant,

Ryan Haugen, et al.,
Defendants.

Filed August 7, 2017
Reversed and remanded; motion denied
Connolly, Judge

St. Louis County District Court
File No. 69DU-CV-15-2911

Gregory M. Erickson, James R. Magnuson, Mohrman, Kaardal & Erickson, P.A.,
Minneapolis, Minnesota (for respondent)

Jeannie Ball, Duluth, Minnesota (pro se appellant)

Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Connolly,
Judge.
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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
In this boundary dispute, the district court granted summary judgment in
respondent’s favor declaring that he is the exclusive owner of the disputed property, finding
no issues of material fact on his trespass and ejectment claims, and awarding damages on
the trespass claim. Appellant argues on appeal that the district court was biased, the
evidence in the record does not support the judgment, she was deprived of her jury -trial
rights, and there were procedural irregularities that require reversal. Because we conclude
that the district court erred in its application of the doctrine of boundary by practical
location and because there are genuine issues of material fact, we reverse and remand.
FACTS
Appellant Jeannie Ball and respondent James Nilsson own adjacent properties.
Appellant purchased her property in 1998 and, in that year, she placed a mobile home, at
least one shed, an outhouse, a septic system, and two fences (the improvements) on what
she believed was her property, located as near as possible to the boundary line. Appellant
claims that 600 feet of fence was located at what she believed to be the boundary line as
well as a kennel building that has been in its location since 1991. Appellant relied on
contractors to place the improvements.
Multiple surveys of the properties conducted on respondent’s behalf show that these
improvements were constructed across the property line. Specifically, the septic mound,
at least half of the trailer home, and multiple sheds are on respondent’s property. The
former owner of respondent’s property was aware of the improvements and never
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complained about the location, but there was no express agreement with the previous owner
that allowed appellant to locate the improvements on the property adjacent to hers.
In 2005, respondent purchased the property adjacent to appellant. In 2014,
respondent surveyed the property and discovered appellant’s encroachment. In December
2014, respondent sent a letter demanding that appellant vacate the property. After
negotiations between the parties failed, respondent sued appellant in October 2015.
Ruling on summary judgment, t he district court found that there were no genuine
issues of material fact regarding t he ownership of the property. Specifically, t he district
court found that the property in dispute is owned by responde nt, as evidenced by the
Torrens certificate and confirmed by the surveys done in 1990 and 2014. The district court
also found that the doctrine of boundary by practical location did not apply because
appellant’s claim that a new boundary was created by respondent’s acquiescence was
deficient. The district court reserved its decision on damages until June 15, 2016, giving
appellant the opportunity to remove the improvements from respondent’s property.
Appellant failed to remove the improvements in the time allotted and respondent was
granted damages to remove the improvements.
D E C I S I O N
“We review a district court’s summary judgment decision de novo. In doing so, we
determine whether the district court properly applied the law and whether there are genuine
issues of material fact that preclude sum mary judgment.” Riverview Muir Doran, LLC v.
JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted).
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“[T]he common law doctrine of practical location of boundaries applies to registered
land whenever registered.” Minn. Stat. § 508.02 (2 016); Britney v. Swan Lake Cabin
Corp., 795 N.W.2d 867, 871 (Minn. App. 2011). The practical location of a boundary line
may be established by acquiescence, express agreement, or estoppel. Halverson v. Village
of Deerwood, 322 N.W.2d 761, 768 (Minn. 1982 ). Appellant argues that the doctrine of
practical location of boundaries was established in this case through acquiescence. “To
acquire land by practical location of boundaries by acquiescence, a person must show by
evidence that is clear, positive, and unequivocal that the alleged property line was
acquiesced in for a sufficient length of time to bar a right of entry under the statute of
limitations.” Britney, 795 N.W.2d at 872 (quotation omitted). The applicable statute of
limitations is 15 years. Minn. Stat. § 541.02 (2016). The burden of proof is on the party
asserting the practical boundary. Britney, 795 N.W.2d at 872. The conduct cannot be
merely passive consent but rather “conduct from which assent may be reasonably inferred.”
Id.
We conclude that the district court erred in its application of boundary by practical
location and in finding that there are no genuine issues of material fact. On summary
judgment, a district court assumes the facts in favor of the nonmoving party. Montemayor
v. Sebright , ___ N.W.2d ___, ___, 2016 WL 2961118, at *4 (Minn. July 12, 2017) .
Appellant submitted an affidavit stating that a fence1 runs along the common boundary line
and has been there for 20 years, and that the improvements made to the property have

1 Appellant claims that the fence is over 600 feet long.
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always been treated as marking the common boundary line. Respondent’s survey does not
indicate the fence or whether the improvements form a clear boundary line, but a survey
conducted by one party is not dispositive when considering boundary by practical location.
See Slindee v. Fritch Inv s., LLC, 760 N.W.2d 903, 907 (Minn. App. 2009) ( implying that
boundary by practical location applies independent of a survey).
Appellant also states in her affidavit tha t her former neighbor walked over to
appellant’s property on a regular basis and never objected to the placement of any of the
improvements. Based on this information, appellant could show at trial that respondent
and his predecessors in interest acquiesc ed to the change in the boundary. If the
improvements were present and forming a boundary line for at least 15 years and the
previous owner and respondent acquiesced to the boundary line change, then the doctrine
of boundary line by practical location applies.2

2 We note that appellant is required to comply with the requirements of Minn. Stat.
§ 508.671 (2016) in order to have all or some of the common boundary lines judicially
determined. Failure to do so, or a failure to seek a temporary stay from the district court
in order to do so, could result in the dismissal of appellant’s claim of boundary by practical
location. See Britney , 795 N.W.2d at 871 . Appellant should have the opportunity to
comply with the statute.
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Because there are genuine issues of material fact to be reviewed by a fact-finder, we
conclude that the district court erred in dismissing appellant’s case. Accordingly, we
reverse.3
Reversed and remanded; motion denied.

3 Appellant filed a motion to supplement the record with her answer to respondent’s
complaint and a self-prepared transcript of a telephone scheduling conference. Papers filed
in district court, the exhibits received in evidence, and the transcript of the proceedings, if
any, shall constitute the record on appeal. Minn. R. Civ. App. P. 110.01. An appellate
court ordinarily does not consider matters outside the record. Thiele v. Stich, 425 N.W.2d
580, 582 -83 (Minn. 1988). Because the documents presented in appellant’s motion to
supplement the record are not pertinent to our decision that a genuine issue of material fact
exists, we deny that motion. See Thomas A. Foster & Assocs. v. Paulson, 699 N.W.2d 1,
9 (Minn. App. 2005) (denying a motion to supplement the record because the document
submitted was not pertinent to the issue on appeal).