In the Matter of the Petition of Melvin J. Cummins for an Order Determining Boundary Lines

This opinion will be unpublished and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
A17-1568

In the Matter of the Petition of Melvin J. Cummins
for an Order Determining Boundary Lines

Filed May 7, 2018
Reversed
Ross, Judge

Hubbard County District Court
File No. 29-CV-11-1453

Paul R. Haik, Krebsbach & Haik, Ltd., Eden Prairie, Minnesota (for appellants)

Thomas B. Olson, Katherine L. Wahlberg, Olson, Lucas, Redford & Wahlberg, P.A.,
Edina, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Peterson, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Resolving a property -line dispute filed in 2011, the district court found that the
remnants of an old wire fence had established a boundary by practical location back in
1977. The district court then reasoned that a title-transferring event occurred in 1977 even
though the 1977 property owners (who ceased to be owners long before 2011) never asked
the court to so define the boundary or otherwise unsettle the legal boundary, which is about
40 feet east of the fence. But Minnesota Statutes, section 508.671 (2016), allows a
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landowner merely to “ apply” to the district court “to have all or some of the common
boundary lines judicially determined,” and no judicial determination occurred in 1977. We
hold that the evidence that the former owners acquiesced in the fence line as the boundary
line is not clear and convincing. We therefore reverse the district court’s order determining
the boundary based on the fence, and we need not reach the various challenges to the
district court’s legal theories that underlie its decision.
FACTS
This case concerns a property-line dispute that will determine whether a landlocked
parcel will expand into neighboring lots to access Sixth Crow Wing Lake in Nevis
Township. Melvin Cummins purchased a landlocked, 57-acre parcel that sits about 55 0
feet north of the lake in 2001. Anthony and Jill Urdahl own a row of three parcels. The
northernmost Urdahl parcel sits immediatel y to the west of the Cummins parcel and is
similarly 550 feet north of the lake. The Urdahls’ middle parcel sits just to the south of
their first parcel, and it is also landlocked. But the Urdahls’ third and southernmost parcel
reaches the lakeshore. Neither the Urdahls’ middle nor southernmost parcel shares a
boundary with the Cummins parcel.
At the heart of this case are the remnants of an old barbed-wire fence running
parallel to and 39 feet west of the actual north-south boundary between the Cummins parcel
and the Urdahls’ northernmost parcel. The fence line runs south through the Urdahls’
middle and southern parcel to the lake. Cummins intends for that fence line to replace the
legal boundary so that his parcel would be extended west by 39 feet into the Urdahls’
northern parcel and then south through the Urdahls’ other two parcels 550 feet to the lake.
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Cummins petitioned the district court in 2011 to declare the fence line the boundary
by practical location. When land surveyors observed the fence around the time of the
petition, the wire composing it was not continuous, the fence had fallen over and was
broken in many places, and the posts had rotted out. The district court granted the petition,
finding that the fence had served as the boundary by practical location from 1962 to 1977,
decades before either the Urdahls or Cummins owned their parcels.
The history of the barbed-wire fence is sketchy. The Urdahls’ three parcels were
once a single lot owned by Emma Knutson from about 1950 until the mid-1980s. The fence
was already on the property when Emma Knutson bought it. No one knows who built it or
why. The Knutsons lived on the land and operated a small farm. Son Don Knutson testified
that he visited his parents “quite often” in the 1950s and 60s, and he remembers the fence.
At that time, it ran from the northern end of the property southward all the way to the lake,
paralleled by a path on the east side that people walked to reach the lake for fishing. Don
testified that his family believed that the fence was the property line, and they planted no
crops to the east of it. Craig Knutson, Don’s son, visited his grandparents’ farm “pretty
close to once a month” during his childhood. He also believed that the fence line was the
boundary. He recalled seeing “No Trespassing” signs on the east side of the fence facing
the path. On one occasion, when snowmobiles knocked down part of the fence , Craig and
his father repaired it and placed a “No Trespassing” sign on it. This activity occurred
between 1962 and 1977.
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Emma Knutson platted the lot as “North Oaks” and subdivided it into multiple lots,
some abutting the lake and some not. She sold the lots in the mid-1980s and, after another
conveyance in 1997, the Urdahls purchased their three lots in 2005.
On the other side of the disputed boundary, Vernon and Joanne Vogt owned what
is now the Cummins lot from 1962 to 1983. Although neither was alive by the time of trial
in this case, the record establishes through Vernon Vogt’s deposition testimony that the
Vogts bought the property purely as an investment and did not occupy, use, or regularly
visit it. Vernon never knew, met, or spoke to the Knutsons or any other abutting property
owner. Some testimony suggests that, shortly before Vernon agreed to purchase the land,
he visited the property and assumed the fence line was its western border. But his testimony
establishes that he “didn’t know about the legal description yet until later on.” And instead
of relying on the fence as the boundary, he clarified, “I went by the legal description after
we -- after I made the deal.” After the Vogts bought the land, the y did not use it to access
the lake for any purpose, and they never asserted any claim to any land beyond its legal
description, which did not include the now-disputed strip just east of the fence line.
The Vogts conveyed the land to John and Carol Raun in 1983 using a legal
description that again did not include the now-disputed strip. The Rauns then conveyed the
property to Gene Rugroden in 1993, under a legal description that also did not include the
now-disputed strip. And Rugroden in turn conveyed the land to Cummins in 2001, likewise
under a legal description that included no reference to the now-disputed strip. In sum, the
legal description in none of the post- 1977 conveyances included the now-disputed 550-
foot strip to the lake. The district court nevertheless declared the fence line as the boundary
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by practical location because it found that “Vernon Vogt acquired the disputed strip of land
by acquiescence in 1977 and the strip of land passed by deed to his successors, including
[Cummins].” The district court appears to have been persuaded primarily by the evidence
about the Knutsons’ behavior, since the abutting owners at that time—the Vogts—did
nothing to claim or treat the now-disputed strip as their own.
The Urdahls appeal.
D E C I S I O N
The Urdahls argue that the district court wrongly determined that the remains of the
wire fence establish the boundary by practical location. When we review a district court’s
placement of a boundary, we consider whether the district court’s factual findings are
clearly erroneous and whether its legal conclusions are erroneous. Ruikkie v. Nall, 798
N.W.2d 806, 814 (Minn. App. 2011). “An owner of registered land having one or more
common boundaries with registered . . . land . . . may apply . . . to the court to have all or
some of the common boundary lines judicially determined.” Minn. Stat. § 508.671 (2016).
A district court may designate a boundary by practical location if the claimant establishes
the boundary by acquiescence long enough t o bar a right of entry under the statute of
limitations, by the acquiescence in a boundary expressly agreed upon between the abutting
owners, or by estoppel. Theros v. Phillips, 256 N.W.2d 852, 858 (Minn. 1977). The
claimant has the burden of establishing the boundary using clear, positive, and unequivocal
evidence. See Minn. Stat. § 541.02 (2016). Cummins asserted, and the district court
accepted, that clear, positive, and unequivocal evidence proves that the boundary line was
acquiesced in for the statutory period of 15 years. We must decide whether the district court
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properly based its determination on the alleged boundary -line acquiescence between the
Vogts and the Knutsons for a period of 15 years from 1962 until 1977.
We conclude that the district court erred. Three primary reasons drive this
conclusion.
First, the record does not support the notion that the Vogts and the Knutsons
acquiesced in the fence as their common boundary for 15 years leading up to 1977. The
record includes no clear, positive, and unequivocal evidence of acquiescence. Relying on
a fence to establish a boundary usually requires evidence proving that the purpose of
erecting the fence was to mark the boundary: “When a fence is claimed to represent a
boundary line under an acquiescence theory, one of the most important factors is whether
the parties attempted and intended to place the fence as near the dividing line as possible.”
Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980). This case includes no evidence of
the motive or circumstances concerning the fence’s placement. This undermines the district
court’s characterization that “the fence . . . was the specific demarcation of a property line.”
The evidence does not reveal whether the fence was intended to mark the boundary or
instead merely to contain cattle within part of the property. The evidence does not answer
the question and provides only grounds to speculate.
It is not enough that the Knutsons discovered the fence and unilaterally assumed
that it was the boundary . We have said that “[a] cquiescence entails affirmative or tacit
consent to an action by the alleged disseizor, such as construction of a physical boundary
or other use, which tends to establish the visual to boundary.” LeeJoice v. Harris, 404
N.W.2d 4, 7 (Minn. App. 1987); see also Phillips Petroleum Co. v. Selnes, 223 Minn. 518,
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521, 27 N.W.2d 553, 554 (1947) (“The evidence seems quite clear that for a period of more
than 30 years defendant and her predecessor acquiesced in the claim of plaintiff and its
predecessors to 110 feet frontage on the Fourth avenue side.”). Not only does the record
show that the Vogts did not erect the fence, it shows that the Vogts never expressly nor
implicitly asserted that the fence was the boundary. It also shows that the Vogts never even
considered the fence to be the boundary at any point while they owned the parcel. Vernon
Vogt testified specifically that he believed that the fence was not his. The district court’s
statement that “Mr. Vogt’s understanding was that the path [ along the east of the fence]
was on his property” refers specifically to his preliminary understanding before he
purchased the land, not his understanding after he purchased it, when he said he relied only
on the legal description to define the boundary. We therefore must reject as clearly
erroneous the district court’s characterization that “both predecessors in title acquiesced to
the fence as being the boundary between the properties” and that “the landowners
recognized the boundary.” The evidence contradicts these findings.
Second, clear precedent argues strongly for reversing even if the evidence had
supported the conclusion that the Vogts and the Knutsons mutually acquiesced in the fence
line as the boundary. This case strikingly resembles the 125-year-old first case of boundary
by practical location in Minnesota—a case in which the supreme court reversed the district
court’s boundary determination, declaring th at the record “[ c]ertainly” lacked sufficient
evidence of acquiescence. In Beardsley v. Crane, the court considered a landowner’s
boundary-by-practical location claim that was based on a wire fence built and relied on by
the disputing parties’ predecessors as the actual boundary line and that would have
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extended the claimant’s parcel to include a narrow strip to connect his property to a lake.
52 Minn. 537, 542, 544 –45, 54 N.W. 740, 741–42 (1893). That case included far more
compelling evidence in favor of establishing a boundary than this case. The evidence in
Beardsley demonstrated that the previous coterminous owners had erected a fence
intending to reflect the boundary line, that both treated the fence as the boundary, and that
the successive owners of both properties also treated the fence as the boundary. Id. But the
fence was not the actual boundary and had resulted from an errant survey, misleading the
owners, who had intended the fence to track the accurate legal boundary. Id. at 546–47, 54
N.W. at 742–43. After the supreme court announced the Minnesota legal standard for
boundary by practical location (the standard we still follow today), it flatly rejected the
claim of boundary by practical location:
The most that can be urged in defendant’s behalf in support of
his claim to a practical location, which will conclude the
parties, is that, misled by Gould’ s inaccurate survey, and in
ignorance of his mistake, the then coterminous owners of the
land united in building a fence upon the supposed boundary,
and for some nine years afterwards, still in ignorance of the
mistake, they a nd their grantees acquiesced in treating and
considering this fence as on the division line between their
respective holdings. Certainly these acts did not conclude the
parties. Order reversed.

Id.

Because the Beardsley claim of boundary by practical location failed on stronger
evidence of acquiescence, so must Cummins’s claim. The Beardsley claimant proved that
the reason for the wire fence’s erection was exactly to track the boundary . Id. at 544–45,
54 N.W. at 742. Cummins did not. The Beardsley claimant proved that the coterminous
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original owners on both sides of the fence treated the fence as the boundary. Id. at 546–47,
54 N.W. at 742–43. Cummins did not. And the Beardsley claimant established that the
successive owners on both sides had also treated the fence as the boundary. Id. at 544–45,
54 N.W. at 741–42. Cummins did not. Cummins points to no caselaw supporting the idea
that a boundary can be practically located based on the unearthing of a decades-old mistake
that was never previously given any legal effect and that, as far as can be known, has not
been repeated by all the successive owners.
Third, we believe the district court wrongly treated the current boundary dispute as
being resolved by hypothetical, successive, retroactively-applied title-transferring events
down the line from the Knutsons to the Urdahls and from the Vogts to Cummins. Cummins
attempts to support the district court’s rationale that a title-transferring event occurred in
1977, even though no one in 1977 nor any of Cumm ins’s predecessors petitioned for an
order determining the boundary . Cummins does so mostly by relying on our holding in
Gabler v. Fedoruk, 756 N.W.2d 725, 732 (Minn. App. 2008). Gabler does not sustain
Cummins’s argument.
It is true that we said in Gabler that “[a]n action for the establishment of a boundary
by practical location, like the closely related action for adverse possession, is a title-
transferring event that relies in substantial part on the deed holder’s conduct.” Id. at 728–
29. But there we were deciding only whether a district court has discretion to refuse to
order a title transfer after establishing a boundary by practical location. Id. at 735. Gabler
does not suggest that, by presently finding that coterminous owners 34 years ago
acquiesced in a boundary , a district court may declare that a title-transferring event
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occurred 34 years ago and apply it to alter the property rights of the successive owners. To
the contrary: we specifically observed that an “action for the establishment of a boundary
by practical location . . . is a title-transferring event” and that any “divestiture . . . follows
a finding that a boundary has been established by practical location.” Id. at 728–29
(emphases added).
Cummins’s argument that a title-transferring event can occur years before a
landowner petitions the district court for an order determining boundary lines finds support
only in the adverse-possession context. In Fredericksen v. Henke, the supreme court said,
To maintain a title, acquired by adverse possession, it is
not necessary to continue the adverse possession beyond the
time when title is acquired. The title once acquired is a new
title; a legal title though not a record title is not lost by a
cessation of possession, and continued possession is not
necessary to maintain it.

167 Minn. 356, 361, 209 N.W. 257, 259 (1926). In the context of adverse possession, a
disseizor’s title to land vests when the requirements for adverse possession are met even if
no judicial action is taken. Id. We are aware of no case that applies this principle in the
boundary-by-practical location context, and we assume this rests on an obvious distinction
between the different legal theories. As in Fredericksen, one claiming adverse possession
must actually and openly possess the disputed land adversely to acquire legal right to the
land, and the Fredericksen holding protects an adverse possessor who has openly asserted
his right for the statutory period. Id. But a boundary -by-practical-location claimant, by
contrast, need not allege possession of any kind, because possession is not an element of
the claim. Pratt Inv. Co. v. Kennedy, 636 N.W.2d 844, 849 (Minn. App. 2001). Accepting
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Cummins’s position would require us to hold that a present landowner can obtain title to
land that neither the landowner nor his predecessors ever possessed if only one predecessor
of an abutting property mistook a boundary and used less of her land than she had a right
to use. We have no reason to import the adverse-possession feature into a case of boundary
by practical location. We hold that no boundary -modifying, title-transferring event
occurred in 1977 granting Cummins title to the disputed strip.
In sum, for these reasons we hold that the evidence does not support the district
court’s finding that Cummins met his heavy burden to establish a boundary by practical
location. We need not consider the Urdahls’ other arguments for reversal, incl uding their
contention that the district court cannot establish a boundary between Cummins’s parcel
and the Urdahls’ middle and southern parcels because the Cummins property does not share
a common boundary with them. We do add, however, that our holding is consistent with
our understanding that “[a]ctions to quiet title and determine adverse claims are equitable
actions.” Gabler, 756 N.W.2d at 730. Cummins acquired his parcel in 2001 based on a plat
and legal description that reveals unmistakably to any ob jective purchaser that the parcel
is landlocked, sitting about 550 feet north of the lakeshore. We can infer that he therefore
did not pay a lake-front premium for his property, while the Urdahls must have paid a lake-
front premium price when they purchased their parcels in 2005 based on the plat and legal
description showing part of their southernmost parcel touching the lake. Confiscating the
requested 39-by-550-foot lake-reaching swath from the Urdahls and giving it to Cummins
in this situation does not have an equitable flavor.
Reversed.