David R. Towley, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0661

David R. Towley, et al.,
Appellants,

vs.

Douglas S. Wick, et al.,
Respondents.

Filed December 23, 2019
Affirmed
Jesson, Judge

Hubbard County District Court
File No. 29-CV-17-549

Jeremy A. Klinger, Drahos Kieson & Chri stopher, P.A., Bemidji, Minnesota (for
appellants)

Brian C. Bengtson, Lano, O’Toole & Bengt son, Ltd., Grand Rapids, Minnesota (for
respondents)

Considered and decided by Ross, Pr esiding Judge; Rodenberg, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellants David and Kathleen Towley and respondents Douglas and Carol Wick
disagree on the location of th e boundary line between their properties located on Lake
Plantagenet. Although previous owners of the properties attempted to mark the boundary

2
line using iron pipes, a subsequent professional survey revealed that the pipe boundary line
was incorrect by roughly 14.7 feet near the lake . The Towleys asked th e district court to
declare the pipe boundary line to be the actual boundary based on the doctrine of boundary
by practical location. The dist rict court denied the Towleys’ claim, a decision they now
challenge. Because we conclude that the record supports the district court’s determination
that the Towleys failed to establish a boundary by practical location, we affirm.
FACTS
To understand this boundary dispute between neighbors, we first provide some
historical background on the property. In 19 55, the previous owners decided to sell their
land, dividing it into three equal parts: the nor th, middle, and south pa rcels. Each parcel
was bounded on the western edge by a public road and by Lake Plantagenet on the eastern
edge. And each property included 110 feet of shoreline. Respondent Douglas Wick’s
parents purchased the north parcel, and appellant Kathleen Towley’s parents purchased the
south parcel. Douglas Wick’s uncle, Harold Wick Sr., purchased the middle parcel. All
of the families were close friends.
Although the previous landowners divided their land into three parcels, there were
no marked boundary lines separating the ne w properties. In the summer of 1955,
representatives from each of the families—includi ng Douglas Wick’s father, Kathleen
Towley’s father, Harold Wick Sr., and his son Harold Wick Jr.—worked together to
attempt to mark their best es timation of the deeded boundari es. None of the men were
professional land surveyors, and thick vegetation hindered thei r efforts and preciseness.
The group used surveyor notes to locate a tree on the western edge of the property and used

3
that tree to mark the properties’ lot corners in three, 110-foot sections. Using a borrowed
surveying tool, they then projected lines east from the lot corners toward Lake Plantagenet.
Based on those projection lines, they marked 110-foot sections of lake shoreline.
To mark the west-to-east horizontal lines dividing each property, the men used iron
pipes.1 The pipes varied in size and type and were placed vertically—similar to fence
posts—along their best estimati on of the deeded boundaries at uneven intervals. Due to
thick vegetation, some of the pipes were clearl y visible while others were difficult to see.
According to Harold Wick Jr., the only person present for the amateur survey who is still
living, the men were trying to mark the deeded boundaries rather than attempting to create
new boundary lines. Further, all of the families had an unwr itten understanding that they
would not contest the boundary lines between the parcels and that any transfers of property
between family members would not require a professional survey. But if an outside party
wanted to purchase one of the parcels, the families understood that a formal survey would
be necessary.
Over the next several decades, the owne rs made various improvements to the
properties. The owners of the north parcel built an outhouse, and the owners of the middle
parcel constructed a cabin and a well house. The owners of the middle parcel also later
constructed a house and a detach ed garage on the property, and installed a propane tank,
clothes line, and HAM radio tower. On the south parcel, the owners added a cabin. All of
these improvements were located near, but not over, the 1955 pipe boundaries.

1 The group placed iron pipes on four lines: the north line of the north parcel, the north line
of the middle parcel, the north line of the south parcel, and the south line of the south parcel.

4
Turning to the current dispute, responden ts Douglas and Carol Wick obtained the
north parcel in 1999 from his parents.2 Appellants David and Kathleen Towley purchased
the middle parcel in 2006. According to Haro ld Wick Jr., acting as power of attorney for
his father, he was happy that the Towley s purchased the middle parcel because he
considered them family, negating the need for a formal land survey. He also testified that,
at the time of purchase, he never made an y representations to the Towleys about the
boundary lines of the middle parcel.
In 2014, the Wicks sought to sell the north parcel to a non-family buyer who
requested a professional survey of the land. The 2014 survey reve aled that the pipe
boundary line separating the north and middle parcels was 14.7 feet north of the deeded
boundary line on the eastern border of the pr operty near the lake. Based on the survey,
several structures from the middle parcel (owned by the Towleys)—including the HAM
radio tower, clothesline, propane tank, and foundation of the old cabin—encroached on the
north parcel.
After the Wicks communicated the results of the land survey to their neighbors, the
Towleys filed a complaint with the district court in 2017. In their complaint, the Towleys
asked the district court to determine that, under the theory of boundary by practical
location, the 1955 pipe boundary was the true boundary line between the parcels. The case
proceeded to a court trial in Ma y 2018. At trial, Harold Wick Jr. testified about the 1955
surveying effort, including that it was their “best effort” and that they created a “working

2 The Wicks moved to Washington in 1967, and only sporadically visited the north parcel
after their move.

5
line, subject to survey.” Both of the Towleys and Douglas Wick also testified. In addition
to hearing testimony and rece iving exhibits, the district court personally viewed the
property.
Following the trial, the district court issu ed a written decision, concluding that the
Towleys established by “clear, positive, and unequivocal evidence” that they and their
predecessors in interest intended the 1955 pipe boundary to be the boundary between the
properties. In reaching this conclusion, th e district court relied on the actions of the
Towleys’ and Wicks’ predece ssors in interest in constr ucting various structures and
fixtures based on the 1955 pipe boundary. But the district court denied the Towleys relief
on the basis that they “brought the current matter with unclean hands” because they had
knowledge, prior to purchasing the middle parcel, that the pipe boundary was not the true
boundary of the property.
The Towleys moved for amended findings on the unclean-hands determination and
filed a motion for a new trial. Although the district court denied the motion for a new trial,
it issued amended findings. In the amende d findings, the district court—reversing its
previous determination—concluded that the Towleys did not establish a boundary by
practical location by clear, positive, and une quivocal evidence. Ba sed on the record, the
district court concluded that the 1955 pipe boundary was a “rough estimate” of the deeded
boundary that would be supers eded by any future survey showing a different boundary
line.
3 Accordingly, the district court held th at the Towleys have no right to the land

3 The district court affirmed its prior dete rmination that the doctrine of unclean hands
precluded the Towleys from obtaining relief.

6
between the deeded bo undary and the pipe boundary li ne and ejected them from that
14-foot area. The Towleys appeal.
D E C I S I O N
The Towleys argue that they established a boundary by practical location because
the 1955 pipe boundary is certain, visible, and well-known and because the predecessors
in title acquiesced to the pipe boundary as the boundary line. Boundary determination is a
factual issue, which we will not se t aside unless clearly erroneous. Slindee v. Fritch
Investments, LLC , 760 N.W.2d 903, 907 (Minn. App. 2009). But whether the factual
determinations support the district court’s legal conclusions is a question of law, which we
review de novo. Gabler v. Fedoruk, 756 N.W.2d 725, 730 (Minn. App. 2008).
Boundary by practical location, like adve rse possession, carries a significant
consequence: it transfers title between property owners. Slindee, 760 N.W.2d at 907. As
a result, the burden of proof is high: the party attempting to establish a boundary by
practical location must do so by cl ear and convinci ng evidence. Phillips v. Blowers ,
161 N.W.2d 524, 526–27 (Minn. 1968).
A party can unequivocally establish a boundary by practical location in one of three
ways: acquiescence, express agreement, or estoppel. Slindee, 760 N.W.2d at 907. The
Towleys assert only one manner by whic h a boundary by prac tical location was
established: acquiescence. Acquiescence require s “affirmative or tacit consent” to some
action by a disseizor, like construction of a physical barrier, and acknowledgement of that
barrier by the disseized. LeeJoice v. Harris , 404 N.W.2d 4, 7 (M inn. App. 1987). To
demonstrate acquiescence, a boundary line must be “certain, visible, and well-known,” and

7
the practical boundary must be “known, defin ite, certain, and capable of ascertainment.”
Ruikkie v. Nall , 798 N.W.2d 806, 819 (Minn. App. 2011) (emphasis added) (quotations
omitted), review denied (Minn. July 19, 2011). Furthe r, acquiescence must be “for a
sufficient length of time to bar a right of entr y under the statute of limitations,” which is
15 years. Id.; Minn. Stat. § 541.02 (2018).
Here, in its amended order, the district c ourt concluded that the Towleys failed to
establish a boundary by practical location for two reasons. Fi rst, the district court found
that the record did not support a finding that the 1955 pipe boundary was “certain, visible,
and well-known.” The court observed that the record did not contain enough information
to conclude the pipes in 2019 we re the same as they were in 1955. It also found that the
pipes were “irregularly spaced and variously sized.” Additio nally, the court found that,
given the thick vegetation, the pipe boundary was not “patently visibl e” nor “capable of
certain ascertainment as boundary markers.” Second, the district court found that the
parties intended the boundary line to be appr oximate, and they agre ed that any future
survey would supersede the pipe boundary.
The district court’s factual determinations are supported by the record. Photographs
in the record show that the vertical pipe markers are indeed “irregularly spaced and
variously sized.” Further, because of thick vegetation, some of the markers are not clearly
visible, supporting the district court’s determination that they were not “capable of certain
ascertainment as boundary markers.” We al so note that the district court had the
opportunity to observe the pipe markers in pers on. It is the Towley s’ burden to establish
that an alleged boundary is “cert ain, visible, and well-known.” Ruikkie , 798 N.W.2d at

8
819. And based on the record, the district court did not clearly err by determining that the
Towleys did not meet their burden.
Second, the record supports the district court’s determinati on that the parties
intended the 1955 pipe boundary to be an approximate boundary, superseded by any future
survey. Harold Wick Jr. test ified that, in 1955, the par ties were attempting to mark
estimated boundary line locations, not attempting to create a boundary line. It is clear from
testimony that the involved parties underst ood that while the pipes would suffice as an
estimation of the boundary, a fu ture survey may reveal a diffe rent location of the deeded
boundary line.
Still, the Towleys argue that the record proves that the pipe boundary is certain,
visible, and well-known. They note that professional land su rveyors were able to locate
the pipe markers in their surveys, contend that the pipes traverse the entire parcel, and point
to numerous photographs submitted to the district court. An d, according to the Towleys,
the record demonstrates that the predecessors in title acquiesced to the 1955 pipe boundary.
In support of this assertion, the Towleys note that the predecessors in title to both parcels
obtained survey equipment and attempted to place the pipe markers as close to the deeded
boundary line as possible. Further, they draw our attention to the fact that the owners of
the properties each built structures based on the 1955 pipe boundary.
We acknowledge that, based on the record before it, the district court could have
reached a conclusion either way regarding boundary by practical location, as evidenced by
its two different determinations on the issue. But we defer to a district court’s ultimate
factual determinations unless they are clearl y erroneous. And the determination before

9
us—that the Towleys failed to establish a boundary by practical location—is supported by
the record. Because the distri ct court’s findings that the pi pe boundary is not certain,
visible, and well-known and that the partie s did not truly acquiesce to the 1955 pipe
boundary are supported by the reco rd, they are not clearly erroneous. 4 See
Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980) (concluding that the evidence was
insufficient to establish a bo undary by practical location wh ere a fence was, at various
points during the statutory period, in disrepair or deteriorating).
Because it is the Towleys’ burden to establish a bounda ry by practical location by
clear, positive, and unequivocal evidence, we affirm the district court’s conclusion that the
Towleys failed to m eet that burden. See Theros v. Phillips , 256 N.W.2d 852, 858
(Minn. 1977).
Affirmed.

4 Because we affirm the district court’s c onclusion that the Towley s did not establish a
boundary by practical location, we do no t reach their argument regarding whether the
district court erred in finding that they acted with unclean hands.