Richard S. Anderson, et al., Respondents,

This opinion will be unpublished and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
A17-1156

Richard S. Anderson, et al.,
Respondents,

vs.

Robert B. Hildreth, et al.,
Appellants,

vs.

U. S. Bank National Association,
Respondent,

and

Mortgage Electronic Registration Systems, Inc.,
as a nominee for U. S. Bank N. A.,
Respondent,

and

Robert B. Hildreth, et al.,
third party plaintiffs, Appellants,

vs.

Mortgage Electronic Registration Systems, Inc.,
as a nominee for BWM Mortgage, LLC,
third party defendant, Respondent,

and

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Mortgage Electronic Registration Systems, Inc.,
as a nominee for Mortgageit, Inc.,
third party defendant, Respondent

Filed May 21, 2018
Affirmed in part and remanded
Worke, Judge

Itasca County District Court
File No. 31-CV-15-2861

Brian C. Beng tson, Lano, O’Toole & Bengt son, Ltd., Grand Rapids, Minn esota (for
appellants and cross-respondents)

Robert E. Dolan, Dolan Law, LLC, Grand Rapids, Minnesota (for respondents and cross-
appellants)

Bradley N. Beisel, Beisel & Dunlevy, P.A., Minneapolis, Minnesota (for defendant U.S.
Bank N.A. d/b/a U.S. Bank Home Mortgage and U.S. Bank N.A. N.D)

Aaron A. Myers, Kutak Rock, LLP, Minneapolis, Minnesota ( for defendant Mortgage
Electronic Registration Systems, Inc., as a nominee for Mortgageit, Inc.)

Christina M. Snow and Michael R. Sauer, Wilford, Geske & Cook, P.A., Woodbury,
Minnesota (for defendant Mortgage Electronic Registration Systems, Inc. as nomi nee for
BWM Mortgage, LLC)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Klaphake,
Judge.*
U N P U B L I S H E D O P I N I O N
WORKE, Judge
In th is boundary dispute, appellants/cross-respondents Hildreths challenge the
district court’s determination tha t respondents/cross-appellants Andersons proved their

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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claim for practical location of Andersons’ eastern boundary by acquiescence. Similarly,
Andersons challenge the district court’s determination that Hildreths proved their separate
claim for determination of boundary location of Andersons’ northern boundary by
acquiescence. We affirm but remand for the district court to address and correct a clerical
mistake in its description of Andersons’ northern boundary.
FACTS
Appellants/cross-respondents Robert B. Hildreth and Angel Hildreth ( Hildreths)
and respondents/cross-appellants Richard S. Anderson, Tammi J. Anderson, and Jeremy
D. Anderson (Andersons) live in Grand Rapids . The two families live adjacent to each
other and share property borders on their northern and eastern edges. Neither family knew
the true property lines until a 2015 survey, which spurred the current litigation.
The Hildreths’ property was purchased in two parts by appellant Robert H ildreth’s
father, Keith Hildreth. Keith Hildreth did not survey the land when he bought it. After the
first purchase in 1972, Keith Hildreth built a fence (pasture fence) running north-south to
separate part of his property and to restrain livestock. The pasture fence was dismantled
in the late 1970s or early 1980s. After purchasing the second parcel in 1976, Keith Hildreth
built another fence running east-west (north fence). These two fences met at a fence post
and gate somewhere near the northeastern corner of the present -day Anderson property.
Robert Hildreth acquired the property from Keith Hildreth in 1998.
Andersons bought their property from Keith Hildreth in 1981. Because Andersons
were young when they purchased the property, Keith Hildreth completed all of the required
paperwork for them, including drafting and recording the deed. Shortly after Andersons

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bought the property, Keith Hildreth installed a dirt driveway close to Andersons’ eastern
border so that he could access Andersons’ property. Keith Hildreth does not appear to have
complained that this driveway was built on his property. A few years later, Andersons
extended the driveway to the north, using the current eastern boundary of the driveway as
a guide. Andersons also improved the driveway with routine grading and adding gravel.
Andersons operated a small business out of their home and constructed additions in
2001 and 2004 to help their business grow. The additions extended the eastern part of their
home and were undertaken with the belief that the eastern border of the Anderson property
matched the eastern edge of the driveway. Andersons also built a shed in the northeastern
part of their property in 2006. Andersons believed that the shed was still within their land
because it was about 10 feet to the west of the fence post that joined the no rth fence with
the former pasture f ence (the p asture fence was dismantled by this time). The parties
dispute if Hildreths gave Andersons permission to bui ld the shed at this location. Also in
2006, while a nearby road was being reconstructed, Andersons found an old survey stake
in the northeast corner of their property.
In May 2015, the parties had an argument. In July 2015, Andersons paid to have
their land surveyed and discovered that their eastern property line was about 23.5 feet to
the west of the fence post that had joined the north fence with the pasture fence. This meant
that Andersons’ driveway encroached on Hildreth s’ property by approximately 23.5 feet
and Andersons’ shed was mostly located on Hildreths’ property. The survey also showed
that the northern boundary of Andersons’ property was about 10 feet past the north fence.

north fence
The state of the two properties at this time generally appeared as follows: 1

Andersons filed suit against Hildreths and Hildreths countersued to determine the
boundary lines of the parties’ respective properties. The district court found that the parties
acquiesced to the practical boundary marked by the invisible line running south from the
fence post, and Andersons had title to the area west of that line. The district court also
found that the parties acquiesced to the practical boundary marked by the north fence, and
Hildreths had title to the area north of the north fence. Hildreths appealed and Andersons
timely filed a notice of related appeal to contest the district court’s determinations.

1 This image is not to scale and is only meant to provide the reader with a sense of the areas
in dispute.

Hildreth Property

Anderson Property
Survey stake
found in 2006
Fence Post
Shed
Shed built by
Andersons in
2006
True boundary
True boundary
Former site of
pasture fence
Centerline
of driveway

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D E C I S I O N
Hildreths argue that the district court erred by finding that Andersons had acquired
title to the land west of the boundary line ru nning south from the fence post based on
practical location of boundary by acquiescence. Andersons argue that the district court
erred by finding that Hildreths proved that they acquired title to portions of Andersons’
land beyond the north fence, also based on practical location of boundary by acquiescence.
The doctrine of boundary by practical location is used to resolve disputes between
private parties regarding a boundary between their respective properties. Slindee v. Fritch
Invs., LLC , 760 N.W.2d 903, 907 (Minn. App. 2009). “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 v. Swan Lake
Cabin Corp., 795 N.W.2d 867, 8 72 (Minn. App. 2011) ( quotations omitted). A district
court’s conclusion concerning a boundary, including whether a landowner acquiesced in a
boundary by practical location, is a factual finding, w hich is reviewed for clear error.
Wojahn v. Johnson, 297 N.W.2d 298, 303 (Minn. App. 1980) . An appealing party who
lost property by practical location must “show that there is no substantial evidence
reasonably tending to sustain the [district] court’s findings.” Gifford v. Vore , 245 Minn.
432, 434, 72 N.W.2d 625, 627 (1955).
Andersons’ claim for practical location of their eastern boundary

The first issue is whether the district court clearly erred in its determination that
Hildreths acquiesced to t he practical boundary line marked by the invisible line running

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south from the fence post . The burden of proof is on the party as serting 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. (quotation omitted).
“Typically, practical location by acquiescence occurs when neighbors attempt to establish
a fence as close to the actual boundary as possible, or when the disseizor unilaterally marks
the boundary, and the disseized neighbor thereafter recognizes that line as the actual
boundary.” Id. “In order to demonstrate acquiescence, the boundary line must be certain,
visible, and well -known.” Ruikkie v. Nall , 798 N.W.2d 806, 819 (Minn. App. 2011)
(quotation omitted), review denied (Minn. July 19, 2011).
The district court determined that Hildreths acquiesced to a new western boundary
of their property that started at the fence post in the northeast corner of the Anderson
property and ran sou th to a nearby road. The district court chose this line because it was
built by Keith Hildreth “over 35 years ago when he installed fences to keep ” and restrain
livestock, and because Andersons built the driveway close to what they believed was the
eastern boundary and it was actually constructed by Keith Hildreth, who never objected to
its placement. The parties treated the line running south from the fence post as the dividing-
line between the two properties for decades . Based on the record, the distri ct court’s
decision was not clearly erroneous.
While Hildreths argue that the driveway’s gravel and dirt surface was too uneven to
be certain, visible, and well -known, this court has never held that only certain materials
support a finding of acquiescence. Nor have we held that a ragged boundary line cannot
qualify as a certain, visible, and well -known line. See Slindee, 760 N.W.2d at 907-08

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(concluding that a “meandering” and “curvy” mow line was not intended to be a boundary
line, but implying that if it was, it could have served as a practical boundary). Viewing the
parties’ treatment of this invisible line against its history and context, we are convinced
that Hildreths have failed to meet their burden of showing “that there is no substa ntial
evidence reasonably tending to sustain the [district] court’s findings.” See Gifford, 245
Minn. at 434, 72 N.W.2d at 627. For these reasons, we conclude that the district court did
not clearly err in deciding that the parties acquiesced in the practical location of Andersons’
eastern boundary.
Hildreths’ claim for practical location of Andersons’ northern boundary

Andersons argue that the district court erred when i t found that Hildreths proved
their claim for practical location of boundary based on the north fence by acquiescence.
“When a fence is claimed to represent a boundary line under an acquiescence theory, one
of the most important factors is whether the parties attempte d and intended to place the
fence as near the dividing line as possible. ” Wojahn, 297 N.W.2d at 305. Even where
there is a physical barrier, like a fence, there is no acquiescence if the landowners did not
intend the barrier to be a boundary or the reaso ns for building the barrier are uncertain.
Pratt Inv. Co. v. Kennedy, 636 N.W.2d 844, 850 (Minn. App. 2001).
The district court found that Andersons acquiesced in the north fence as the northern
boundary line of their property because Andersons bought th e property in 1981 and have
always treated the north fence as the northern boundary line of their property . Andersons
counter that the fence was originally built by Keith Hildreth to keep his livestock from
roaming and not to demarcate a boundary line. T o support this argument, Andersons cite

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Weis v. Kozak, 410 N.W.2d 903, 905 (Minn. App. 1987), in which the parties built a fence
between their properties to st op their cattle from mingling. Just after building the fence,
the parties acknowledged that the fence did not actually sit on the boundary line of their
properties, but agreed to keep the fence in place with that understanding. Id. This court
wrote that this agreement was “an apparent mutual grant of permission for each party to
use the a vailable land” and the parties “acknowledged that the fence did not lie on the
boundary line.” Id. at 906, 907.
The situation in this case is different than in Weis. Here, the record shows that the
parties believed that the north fence marked the Anderson property’s northern boundary.
Andersons claim that the original purpose of installing the fence is unclear, but Tammi
Anderson testified that since purchasing the property, she believed that the north fence
represented the property line based on what Keith Hildreth told her. Further, the record
suggests that Andersons did not build on or use the property beyond the north fence, unlike
the disputed area to the east where they constructed the driveway and a shed. Viewed as a
whole, we conclude that Andersons have not met their burden of showing “that there is no
substantial evidence reasonably tending to sustain the [district] court’s findings.” See
Gifford, 245 Minn. at 434, 72 N.W.2d at 627. We conclude that the district court did not
clearly err in determining that Andersons acquiesced in the north fence as the practical
location of their property’s boundary.
The parties agree that the district court made a clerical mistake in its description of
the acquiesced, practical boundary north of the north fence. After examining the district
court’s order and descriptions, we agree. Therefore, while we affirm the district court’s

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order finding that Andersons proved their claim for practical location of their eastern
boundary by acquiescence , and findi ng that Hildreths proved their claim for practical
location of boundary based on the north fence by acquiescence, we remand for the district
court to correct its clerical error concerning the area north of the north fence.
Affirmed in part and remanded.