James Cortese, et al., Appellants,

This opinion will be unpublished and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
A17-1201

James Cortese, et al.,
Appellants,

vs.

Jay D. Hedin, et al.,
Respondents.

Filed May 14, 2018
Affirmed
Bratvold, Judge

Beltrami County District Court
File No. 04-CV-16-3029

Darrell Carter, Bemidji, Minnesota (for appellants)

Jerrod A. Shermoen, Chelsea E. Nelson, ShermoenJaksa Law, PLLC, International Falls,
Minnesota (for respondents)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and Florey ,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellants James and Sharon Cortese challenge the district court’s decision after a
bench trial, rejecting appellants’ claim for practical location of a boundary based on James
Cortese’s express agreement with a previous neighbor. Instead, the district court entered
2
judgment for the current neighbors, respondents Jay and Samantha Hedin, and determined
that the boundary was correctly stated in the recorded warranty deed. We affirm.
FACTS
In June 1971, the Corteses purchased property and a home in Beltrami County by a
warranty deed from Robertson Lumber Co.
In May 1972, Benjamin and Ellen Fox purchased the adjacent parcel to the west of
the Corteses’ property by a warranty deed, also from Robertson Lumber. The lots owned
by the Corteses and the Foxes were approximately the same size, 100 feet wide and 155
feet deep.
The Foxes’ lot changed hands two more times before reaching the Hedins. In Ju ly
1989, the Foxes conveyed the property by a warranty deed to Kris and Deborah Diaz. In
May 1996, the Diazes conveyed the property by a warranty deed to Jeffrey and Angela
Scripture. In August 2001, the Scriptures conveyed the property by a warranty deed to Jay
Hedin. In 2002, Hedin conveyed the property by a quit-claim deed to himself and his wife,
as joint tenants. All deeds were recorded.
In 2016, the Corteses sued the Hedins for boundary by practical location, claiming
that, shortly after the Foxes purchased their property in the early 1970s, James Cortese and
Benjamin Fox agreed to move the property l ine dividing their lots 15 feet to the west.
Alternatively, the Corteses’ complaint claimed title to the disputed 15-foot by 155-foot
section by adverse possession. The Hedins responded and asserted a counterclaim, seeking
a legal declaration that their property was as described on their warranty deed: “South 150
3
feet of the North 320 feet of the East 100 feet of the West 130 feet of Government Lot 3,
Section 33, Township 147, Range 33.”

The district court held a bench trial in April 2017. The Corteses called four
witnesses—themselves, Benjamin Fox, and the Corteses’ daughter. James Cortese testified
that, sometime in the first two years after Fox became his neighbor, they had agreed to
move their shared boundary to the west by 15 feet. Fox testified to this agreement,
explaining that Robertson Lumber had “gifted” him the 30-foot-wide lot immediately to
the west of his property. Fox also testified that, by agreeing to move his eastern boundary
15 feet to the west, he was “trying to be a fair neighbor” by sharing the additional 30 feet
of property with Cortese. Fox testified that he later erected a decorative log fence that ran
along the southern boundary . The district court found that the log fence formed a corner
with an additional section that ran approximately eight feet northward along the agreed-
upon eastern boundary of the Foxes’ lot. The Corteses’ daughter testified that, while she

4
lived in her parents’ house, she mowed grass up to the log fence installed by the Foxes and
along the shared boundary as far north as her parents’ lilac bushes at the back of the
property. She explained that, after the Diazes installed a chain link fence along their shared
boundary, she mowed up to the chain link fence.
The Hedins called three witnesses —themselves and Jeffrey Scripture. Scripture
testified that, when he purchased the property from the Diazes, he had “a rough idea” of
the location of the lot lines but did not recall whether the log fence and chain link fences
“lined up perfectly.” Jay Hedin testified that when he purchased the property from the
Scriptures, he did not “have any understanding of where the lot lines were” located. He
also testified that the log fence “didn’t line up with the chain link fence” on the east side
of his property. Hedin testified that he removed the log fence in about 2005. Sometime
later, he also removed the chain link fence.
Hedin further testified that, around 2008, a neighbor to the south of his lot located a
boundary marker that Hedin believed indicated his shared boundary with the Corteses.
Hedin testified that he discussed the marker with Cortese, who told him about his
agreement with Fox. Hedin relied on the marker to plant a row of shrubs on the eastern
boundary of his lot. At approximately the same time, Hedin initiated a successful quiet-
title action and acquired title to the 30-foot by 155-foot parcel of land to the west of his
property.
On June 2, 2017 , the district court issued findings of fact, conclusions of law, and
an order that rejected the Corteses’ claims and ruled in favor of the Hedins’ counterclaim.
The district court found that, although “there was discussion between James Cortese and
5
Benjamin Fox regarding the boundary line between their respective houses,” the Corteses
did not satisfy their burden to prove that “there was an actual agreement and what exactly
it was.” The district court also found that, although Cortese and Fox testified that they had
measured when they allegedly moved the boundary line, their trial testimony differed from
their deposition testimony, which was received into evidence. The district court questioned
their “credibility as to exactly where the log fence was located.” And the district court
found, “There was no marker on the north side of the property to indicate where a boundary
line extended from the log fence.” The district court found that the testimony regarding
who planted and tended shrubs and gardens was incomplete and not compelling.
Additionally, because the chain link fence installed by the Diazes did not run the length of
the shared boundary with the Corteses, the district court questioned “where or how a
purported boundary line would be extended from the end of the log fence.” Ultimately, the
district court found no evidence supporting the Corteses’ contention that the log and chain
link fences were installed to “mark any type of boundary between the two properties.”
The district court concluded that the Corteses failed to prove, by clear and
convincing evidence, boundary by practical location based on an express agreement with
Fox. The district court’s order gave two reasons. First, the Corteses did not establish that
they reached an express agreement to set an “exact, precise line” between their properties.
Second, even if Cortese and Fox had reached an express agreement, Cortese failed to
establish that the new boundary line was clearly marked or definite. The district court also
rejected the Corteses’ adverse possession claim. The district court entered judgment for the
6
Hedins and declared that their property description was as indicated in their warranty deed.
This appeal follows.
D E C I S I O N
The Corteses seek reversal of the judgment, raising two issues relating to their claim
that the shared boundary was established by practical location. First, the Corteses argue
that we should not defer to the district court’s factual determinations because it adopted
verbatim the Hedins’ proposed findings of fact and conclusions of law. Second, they
contend that the district court’s findings of fact were not supported by the record evidence.
We will discuss each issue in turn.1
As to the first issue, we agree with the Corteses that verbatim adoption of proposed
findings is not preferred. See Schallinger, 699 N.W.2d at 23 (stating that “if a court adopts
a proposed order, it raises the question of whether the court independently evaluated the
evidence”). However, we reject the Corteses’ argument that we should review the district
court’s findings of fact any differently because it adopted the proposed order submitted by
the Hedins. We review de novo whether the factual findings support the district court’s
legal conclusions. Slindee v. Fritch Invs., LLC, 760 N.W.2d 903, 907 (Minn. App. 2009).
In addressing the Corteses’ second issue challenging the district court’s factual
findings, we apply a clear -error standard of review. See Vangsness v. Vangsness, 607
N.W.2d 468, 472 (Minn. App. 2000). This standard of review applies even when the district
court adopts verbatim a party’s proposed findings of fact and conclusions of law.

1 The Corteses do not raise adverse possession on appeal, therefore, we do not consider it.
7
Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005), review denied (Minn.
Sept. 28, 2005). We review the record in the light most favorable to the district court’s
findings, see Vangsness, 607 N.W.2d at 472, and will not reverse the decision on appeal
unless the findings “are manifestly and palpably contrary to the evidence.” Pratt Inv. Co.
v. Kennedy, 636 N.W.2d 844, 849-50 (Minn. App. 2001) (quotation omitted).
The common-law doctrine of practical location of boundaries is used to resolve
disputes between private parties as to where a boundar y between their properties lies.
Slindee, 760 N.W.2d at 907. “Boundary by practical location, like adverse possession,
transfers title between deed holders.” Id. (quoting Gabler v. Fedoruk, 756 N.W.2d 725,
728-29 (Minn. App. 2008)). A party may establish a boundary by practical location in one
of three ways: (1) by acquiesce to an express agreement between the landowners on both
sides of the official boundary line, (2) by acquiescence to a boundary for “a sufficient
period of time to bar a right of entry under the statute of limitations” for adverse possession,
i.e. 15 years, (3) or by estoppel. Id.; see also Minn. Stat. § 541.02 (2016) (establishing time
frame for adverse possession).
Here, the only theory advanced by the Corteses on appeal is that the boundary was
established by express agreement. To establish an express agreement, the claimant must
prove that the landowners on both sides of the official boundary agreed to set an “exact,
precise line.” Slindee, 760 N.W.2d at 907 (citation omitted). An express agreement need
8
not be a formal or written agreement but must be made after “a specific discussion
identifying the boundary line or a specific boundary-related action.” Id. at 909-10.
Two Minnesota cases guide our analysis of the Corteses’ challenges because the
decisions address facts similar to those found by the district court in this case. In Phillips
v. Blowers, the supreme court reversed a district court decision that determined that Phillips
had established a boundary by practical location. 281 Minn. 267, 267-68, 161 N.W.2d 524,
525-26 (1968). Phillips and his previous next- door neighbor reached an agreement about
the boundary and marked the corner of the property by laying down an iron pipe. Id. at
270-71, 161 N.W.2d at 527. Several years later, Blowers purchased the next-door property.
When Blowers questioned the boundary, Phillips erected a fence “as a positive assertion of
his boundary,” which he argued was created by the agreement with the previous neighbor.
Id. at 270-71, 161 N.W.2d at 527. At trial, Phillips testified that he marked the northwest
corner of his property with an iron pipe because the original wood lot- markers had
disappeared. Id. at 272, 161 N.W.2d at 528.
The supreme court determined that the iron pipe and the wood stakes placed by
Phillips were not direct evidence of where the original survey stakes were located. Id. at
273, 161 N.W.2d at 529. The supreme court also noted that the results of the resurvey of
the land stood “in substantial contradiction” to the district court’s finding of “actual
location.” Id. at 273-74, 161 N.W.2d at 529. The supreme court concluded that there was
“no substantial evidence in the record” that established that the wood stake replaced the
original survey stake and there was “no corroboration” of Phillips’s testimony that “his
iron pipe was an accurate replacement of it.” Id. at 273, 161 N.W.2d at 529. Because the
9
trial court based its decision on unreliable evidence and did not consider whether the
boundary was established by evidence that is “truly clear and convincing,” the supreme
court reversed and remanded the case for a new trial. Id. at 275, 161 N.W.2d at 530.
Likewise, in Slindee v. Fritch Investments, LLC, this court reversed a district court
decision after a bench trial and held that respondent failed to prove that the original
property owners “entered into an agreement that relocated [their shared] boundary
westward.” 760 N.W.2d at 905. The district court found that the boundary between the
properties was “virtually undisputed” because the mow line, building locations, and fence
along the boundary provided a clear line. Id. at 907. On appeal, however, this court held
that record evidence did not support these findings. Id. At trial, evidence established that
two previous neighbors had created a pat h through the woods to designate a shared
boundary. Id. at 905. Subsequent owners of both properties used the same path and
extended it by an irregular mow line that curved with the land. Id. Eventually, yet another
owner continued the previous owners’ practice and “mowed the same area and kept the
same eastern mow line.” Id.
This court determined that the evidence was insufficient to establish an express
agreement to move the boundary because the mow line “is a meandering, curvy line that
does not resemble the boundary . . . as depicted in the recorded plat.” Id. at 908. This court
also concluded that respondent did not offer evidence of “a specific discussion identifying
the boundary line or a specific boundary -related action clearly proving that the parties or
their predecessors in interest had agreed to a specific boundary.” Id. at 910.
10
In this case, the Corteses make three challenges to the district court’s findings of
fact, which we will discuss in turn. First, the Corteses argue that five of the district court’s
factual findings are incorrect because the record evidence also supported different factual
findings. We defer to a district court’s decision regarding the weight of the evidence. See
Am. Bank of St. Paul v. City of Minneapolis, 802 N.W.2d 781, 789 (Minn. App. 2011). We
will affirm a district court’s factual findings so long as some record evidence supports the
finding, even if other record evidence is in conflict. See Chancellor Manor v. Thibodeaux,
628 N.W.2d 193, 196 (Minn. App. 2001).
Record evidence supported the district court’s findings that there was no express
agreement and that “there was no clearly marked or definite line.” Fox testified that
Robertson Lumber gave him the 30-foot parcel to the west of his property line. Cortese and
Fox also testified about their conversation during which they agreed to equally divide the
additional 30 feet of land by moving the boundary line between their lots 15 feet west. Fox
testified that, after agreeing to a new boundary line, he installed a decorative log fence
along the south side of his property to the southeast corner, from which he extended the
log fence northward approximately eight feet. Later, Diaz installed a chain link fence part
way along the shared boundary. But both Fox’s log fence and Diaz’s chain link fence had
been removed and the district court found that it was “unable to determine” whether the
fences “line[d] up.” Thus the district court had support for its finding that no evidence
demonstrated the exact location of the shared boundary, as contended by Cortese.
These factual findings supported the district court’s legal conclusion that, even if
Fox and Cortese reached an agreement, the agreement was not sufficiently specific. Even
11
if we accept that the agreement was sufficiently specific, which it was not, and that Cortese
established the location of the log and chain fences, which he did not, the district court’s
conclusion still was supported by existing precedent. Evidence of a corner at the junction
between two properties, as marked by Foxes’ decorative log fence, was insufficient to
create a boundary by practical location. See Phillips, 281 Minn. at 271-74, 161 N.W.2d at
528-29. Moreover, as the district court noted, the Corteses did not offer any evidence
demonstrating that the log fence was used as anything other than decoration. Nor did the
Corteses offer any evidence that the chain link fence installed by the Diazes created a
definite boundary line from the log fence on the south to the north end of the property.
Finally, record evidence supported the district court’s finding that the log and chain link
fences were not in a straight line. Witnesses testified to the “goofy” line made by the two
fences and described the inconsistent mow line that resulted from following the fences. A
curving mow line is insufficient evidence of a specific boundary. See Slindee, 760 N.W.2d
at 910.
Second, the Corteses argue that the district court erred in focusing on when the log
and chain link fences were erected because specific dates were irrelevant. The district court
found conflicting testimony as to when Fox installed the log fence, which was sometime
between 1972 and 1974. The district court reasoned that the installation date affected
whether the boundary existed for 15 years before the Diazes purchased the Foxes’ property;
this 15-year period was relevant to the Corteses’ adverse- possession claim, which is not
part of this appeal. We conclude that the district court correctly recognized that when the
fences were installed was relevant to the Corteses’ adverse-possession claim. See Minn.
12
Stat. § 541.02. We agree with the Corteses that the 15- year period does not affect our
review of the district court’s decision that the Corteses failed to prove their claim of
boundary by practical location based on express agreement.
Third, the Corteses urge us to conclude that any differences between deposition and
trial testimonies should not have affected the district court’s decision because the trial
testimony established that Cortese and Fox had an express agreeme nt as to an exact
location for their shared boundary line and that line was 15 feet west of the deeded line.
But the district court did not find Cortese or Fox credible, at least in part, because there
were significant inconsistencies between their trial and deposition testimonies. We defer
to a district court’s credibility determinations. Vangsness, 607 N.W.2d at 472.
At trial, Fox testified that when he and Cortese agreed to move the boundary, they
located a marker and measured. In his deposition, however, Fox testified that he did not
know the location of any markers, they took no measurements when he and Cortese agreed
to move the boundary, and, instead, they agreed to move the boundary “in the middle” of
the houses. In his deposition, Fox drew the shared boundary line in a different location than
the location he indicated during the trial. Cortese similarly testified in his deposition that
he did not know where his exact property lines or any boundary markers were located.
Without consistent testimony f rom Cortese and Fox, the district court appropriately
questioned their credibility and, more fundamentally, concluded that Cortese failed to
establish that they had reached an express agreement to establish a boundary marked by an
“exact, precise line.”
13
We conclude that the district court thoroughly evaluated the evidence before issuing
its written order. Because record evidence supported each of the district court’s factual
findings, the district court did not err by concluding that the Corteses failed to prove
boundary by practical location by clear and convincing evidence.
Affirmed.