Michael L. Pogreba v. Lorraine Pogreba, Janet Bowen

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1261

Michael L. Pogreba,
Respondent,

vs.

Lorraine Pogreba, et al.,
Defendants,

Janet Bowen, et al.,
Appellants.

Filed May 20, 2024
Affirmed
Bratvold, Judge

Todd County District Court
File No. 77-CV-21-343

Scott T. Johnston, Brit D. Brouillard, Johnston Law Office, P.A., Alexandria, Minnesota
(for respondent)

Christina C. Hopke, David J. Meyers, Rinke Noonan, Ltd., St. Cloud, Minnesota (for
appellants)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and

Bratvold, Judge.

NONPRECEDENTIAL OPINION

BRATVOLD, Judge

Respondent sued to determine the boundary line dividing two adjacent parcels, one

of which has lakeshore. Respondent owns the lake parcel, while he and his siblings own
the adjacent farm parcel. Their dispute was tried to the district court without a jury.

Appellants challenge the district court’s judgment granting relief to respondent and

amending and correcting the legal descriptions of both parcels. Appellants argue that the

district court erred in (1) determining that the relevant deed is ambiguous; (2) considering

extrinsic evidence and adopting a legal description for respondent’s parcel that includes 29

acres, instead of 16 acres as stated in respondent’s existing deed; and (3) considering the

meander line from an 1858 government survey of the disputed land as relevant extrinsic

evidence for locating the boundary between the two parcels. Because the district court did

not err in determining that the relevant deed is ambiguous, the record evidence supports

the district court’s findings of fact, and the district court’s decision otherwise accords with

binding and persuasive legal authority, we affirm.

FACTS

This case involves two parcels of land in Todd County, one of which is adjacent to

Thunder Lake. The district court and the parties refer to appellants’ property as the “farm

parcel” and to respondent’s property as the “lake parcel.” We will also use these references

for the disputed properties.

The Parties, the 1858 Government Survey, and the Relevant Deeds

Respondent Michael Pogreba owns the lake parcel. Respondent’s mother, defendant

Lorraine Pogreba, has a life estate in the farm parcel. In 2003, Lorraine and Robert Pogreba

transferred the remainder interest in the farm parcel to their adult children: respondent,

defendant David Pogreba, and appellants Tami Altrichter, Colette Anderson, Janet Bowen,

2
Lisa Engen, and James Pogreba. 1 Robert has since passed away. In 2014, respondent,

appellants, and David conveyed an option to purchase the farm parcel to James and his

spouse, appellant Marilyn Pogreba.

The United States government once owned both parcels and, in 1858, conducted the

only survey of the parcels that predates this litigation. The 1858 government survey is

known as the Government Land Office Survey or the “GLO map.” The relevant GLO map

shows the lake parcel as part of “Government Lot 1” and the farm parcel as part of

“Government Lots 1 and 2.” Government Lot 1’s eastern border is the shoreline of Thunder

Lake, which is depicted by a “meander line.” Caselaw explains that a meander line is a

surveyor’s line drawn “for the purpose of defining the sinuosities of the bank of a lake or

stream.” Great N. Ry. Co. v. City of St. Paul, 63 N.W. 96, 98 (Minn. 1895).

The parcels were transferred several times by deed, and the deeds describe the

parcels, in part, by using the terms “Lot 1” and “Lot 2.” It is undisputed that these refer to

Government Lots 1 and 2 as depicted in the GLO map. The federal government transferred

the entirety of Government Lots 1 and 2 to the Northern Pacific Railroad Company in 1897.

The district court found that, in 1903, the Northern Pacific Railroad Company transferred

“all of the land relevant to this dispute”—the farm and lake parcels—to Albert Malok’s

parents, who later transferred both parcels to Malok, plus a quarter section that is not

involved here. The 1903 deed described the parcel by referring to Government Lots 1 and

2 and recited “168.12 acres more or less.”

1
Because many parties to this appeal have the same last name, we use first names for
clarity. We also note that Lorraine and David Pogreba are not parties to this appeal.

3
 In 1932, Malok mortgaged the farm parcel and the quarter section in favor of his

parents. The district court determined that the legal description in the 1932 mortgage “is

ambiguous because it was identical to the prior description” in the 1903 deed, “save for the

fact that the [mortgage] instrument recited that the land had 152.12 acres, more or less,

rather than the 168.12 acres” in the 1903 deed. The district court inferred that Malok

“intended to remove 16 acres from the purview of the mortgage, even though the mortgage

did not itself state which 16 acres were excepted.” (Emphasis omitted).

In 1933, Malok divided his property by transferring the lake parcel. Malok conveyed

16 acres to Steve Wieshalla; Malok retained the farm parcel plus the quarter section. The

1933 deed described the lake parcel:

The east sixteen (16) acres of Lot One (1) in Section
Thirty-One (31) in Township One hundred thirty-one (131)
north of Range thirty-two (32) West

(1933 deed or lake-parcel deed).

Malok lost the farm parcel and the quarter section in 1936 in a mortgage foreclosure.

After the foreclosure but also in 1936, Frank Wieshalla—Steve Wieshalla’s brother—and

his wife purchased the farm parcel and the quarter section. The 1936 deed described the

farm parcel as Government Lots 1 and 2 “except the east 16 acres” and said it contained

152.12 acres “more or less.”

4
 In 1939, the farm parcel and quarter section were divided. Frank Wieshalla and his

wife kept the quarter section and transferred the farm parcel to their niece, Steve’s daughter

Mabel Goligowski. The 1939 deed described the farm parcel:

Southeast quarter of the northwest quarter and Lot One and
Two of section thirty-one (31) except the East sixteen (16)
acres of Lot One (1) section thirty-one all in One hundred
thirty-one (131) north of Range Thirty-two (32) west,
containing one hundred twelve and twelve hundredths acre
(112.12), be the same more or less

(1939 deed or farm-parcel deed). (Emphasis added.)

Both the lake and farm parcels were transferred several more times. As mentioned

above, Robert and Lorraine Pogreba purchased the farm parcel in 1965 and, in 2015, they

conveyed the farm parcel to their children—including respondent and appellants—

reserving a life estate for themselves. As for the lake parcel, Mark Rasmussen purchased it

in 2001. In 2019, Rasmussen transferred the lake parcel to respondent.

The Jahner Survey

After the 1858 government survey, no owner surveyed the disputed property until

respondent obtained the lake parcel. Respondent wanted to log the property, so he hired a

surveyor, Mark Jahner, to determine the boundary lines of the lake parcel.

Jahner, who is also the Todd County Surveyor, testified that he “look[ed] at all the

deeds and compar[ed] the acres” and found that “if you add the adjoining acres and this 16

acres” conveyed by the 1933 deed, “they add up to the acres shown [in] the government

land survey exactly to the 100th.” Based on the 1933 and 1939 deeds and the 1858

government survey, Jahner testified that the lake parcel’s boundary lines should be

5
determined based on the acres as depicted in the 1858 GLO map. Although Jahner did not

use a shorthand reference for the acres depicted in a GLO map, one of appellants’ experts

testified that the GLO map depicted “nominal” acres. The same appellants’ expert also

testified that nominal acres depicted in the GLO map differ from actual acres on the ground,

and that the nominal acres depicted in a GLO map do not “limit” the actual acres that a

deed grants by its legal description. Jahner also agreed that, “most of the time,” the actual

number of acres found in the field is different from what is shown on the GLO map, and

when he surveyed the lake parcel, he found more acres than the 1933 and 1939 deeds

granted.

In Jahner’s opinion, the 16 nominal acres recited in the 1933 deed should be located

based on the boundary dividing the farm and lake parcel, and this boundary is ascertained

by using the meander line shown on the GLO map. Jahner testified that the location of the

16 acres referenced in the 1933 deed should not be determined by using either the actual

or historic shoreline of Thunder Lake. Jahner acknowledged that he does not recall ever

before using a meander line in a property survey.

The district court summarized Jahner’s testimony about how he conducted the

survey to determine the boundary of the lake parcel. Jahner “first reconstructed the original

meander lines by locating section corner monuments and consulting the original field notes

from the original government survey.” Jahner determined the “calls” with “minimal error”

and used “standard techniques” to “compensate” for the error. Jahner “then located a

western boundary line for the lake parcel by finding a line parallel to the eastern section

line, such that the lake parcel would contain 16 acres above the meander lines on the

6
original government survey.” 2 Jahner “ran this line straight from the section line, in the

north, down to the lake, in the south.”

After establishing the boundary between the lake and farm parcels, Jahner’s survey

showed two lots for the lake parcel: one is 15 acres and located above the meander line,

and one is 14 acres, located below the meander line and adjacent to the lake. Jahner

prepared “updated legal descriptions” for the lake and farm parcels. Based on Jahner’s

survey, respondent’s corrected legal description of the lake parcel has 29 actual acres.

This Litigation

On April 12, 2021, respondent sued his mother, his siblings—including

appellants—as well as the State of Minnesota acting through the Minnesota Department of

National Resources (DNR) and “all other persons unknown claiming any right, title, estate

interest, or lien in the real estate described in the complaint.” In the complaint, respondent

described land he had acquired. Based on his description, respondent requested judgment

(1) determining the boundaries of the lake and farm parcels and correcting the legal

descriptions, (2) determining the boundary line that divides the land owned by respondent

from the land owned by respondent and appellants, (3) declaring respondent the fee simple

2
The district court explained the terms “above” and “below” the meander line. “Below” is
the land between the meander line and the actual shoreline. “Above” refers to the nominal
acres depicted by the meander line on the GLO map. The district court also explained that
Jahner was applying “the parallel-line rule,” which applies when a parcel of land is
described based on acres within a portion of a larger lot; under this rule, the boundary is
typically determined by finding a line that runs parallel to a fixed boundary on that portion
of the larger lot. McDonald v. Denson, 199 S.W.2d 707, 708 (Tex. Civ. App. 1947); Koons
v. Burkhart, 119 N.E. 820, 821 (Ind. App. 1918); Gress Lumber Co. v. Coody, 21 S.E. 217,
217-18 (Ga. 1894); Johnson v. Ashland Lumber Co., 2 N.W. 552, 554 (Wis. 1879).

7
owner of the lake parcel as corrected, (4) determining that appellants do not have any

“right, title, estate, interest or lien” in the lake parcel, (5) ordering that the proper legal

description for the lake and farm parcels is as respondent describes, and (6) directing a

surveyor to set up judicial landmarks for the boundary lines.

During the bench trial on December 15 and 16 of 2022, the district court heard

testimony from respondent, some appellants, others who lived on the disputed parcels in

the past, and experts on land surveying. Jahner’s testimony is summarized above.

Witnesses who had lived on the farm or lake parcels described their understanding—or

lack thereof—of the lake-parcel border based on landmarks such as the logging road, the

gravel pit, the sledding hill, concrete footings, and the old and new driveway to the lake

parcel.

Appellants’ expert witnesses, Dennis Pederson, Scott Marlin, and Samuel DeLeo,

disagreed with Jahner’s survey determinations, but none of them surveyed the lake parcel.

Pederson testified that there was no basis for determining the western boundary of the lake

parcel using the meander line and that the 1933 deed to the lake parcel should not be

interpreted to convey more than 16 acres. Marlin gave similar testimony and described the

meander line as having “no relevance.” DeLeo emphasized that a meander line is not a

boundary and is no longer relevant after the property is privately owned.

All three of appellants’ surveyors testified that they would use the ordinary

high-water mark of the shoreline to determine the 16 acres described in the 1933 and 1939

deeds and that they would not rely on historic aerial photographs in determining the

high-water mark. Both Pederson and Marlin also testified that they would ask the DNR to

8
define the ordinary high-water mark. Pederson acknowledged that the owners who

transferred the farm and lake parcels in the 1930s would not have known the ordinary

high-water mark that he is describing.

Appellants also introduced testimony from Tyler Pogreba, a licensed surveyor and

son of appellant James Pogreba. Tyler was not called as an expert. Like the appellants’

experts, Tyler did not survey the disputed parcels, but he prepared illustrative exhibits

based on testimony from witnesses about some landmarks. Tyler also prepared three

estimates of the ordinary high-water mark of the Thunder Lake shoreline based on aerial

photography from 1939, 1963, and 2020.

The district court issued an order and memorandum with findings of fact and

conclusions of law on April 27, 2023. The district court granted respondent’s requested

relief establishing the boundary line between the lake and farm parcels and correcting the

deeds. The district court noted that the 1933 deed for the lake parcel “described it only as

the ‘east sixteen’ acres of Government Lot 1, without any other lines or landmarks

referenced.” The first step, therefore, was “how to locate the ‘east sixteen’ acres,” which

the parties agreed included Thunder Lake as the eastern boundary with the western

boundary to be “chosen.” The parties disagreed, however, on the second step: how to

measure the 16 acres. Respondent argued that the 16 acres were the nominal acres depicted

in the GLO map and located based on the meander line. Appellants argued that the 16 acres

were actual acres measured from the ordinary high-water mark of Thunder Lake.

The district court determined that the “original deed for ‘16 acres’ is . . . ambiguous

as to what kind of acres were meant to be measured.” The district court explained that

9
“[n]either the number ‘16’ nor the word ‘acres’ is ambiguous standing alone, but the subject

to which those words should be applied is ambiguous on the face of the deed.” (Emphasis

omitted.) The district court concluded that it could consider extrinsic evidence to determine

the intent of the parties conveying the parcels. The district court then examined “the

original instruments, the circumstances of the transactions, the owners’ accounts of the

boundary, and other public records” to determine the original parties’ intent for the western

boundary line of the lake parcel. Based on the extrinsic evidence, the district court

determined that the “16 acres” in the 1933 and 1939 deeds for the lake and farm parcels

refer to nominal acres above the meander line as shown in the GLO map. In short, the

district court accepted respondent’s reasoning, adopted the Jahner survey, and corrected

the descriptions for the lake and farm parcels.

Appellants moved to reconsider and for amended findings, which the district court

denied with one exception by order on August 6, 2023. 3 This appeal follows.

DECISION

In an appeal after a bench trial, “[f]indings of fact, whether based on oral or

documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall

be given to the opportunity of the [district] court to judge the credibility of the witnesses.”

Minn. R. Civ. P. 52.01. The Minnesota Supreme Court has explained our review for clear

3
The district court’s order stated that it “withdraws Part I.b of the memorandum
accompanying its April 27, 2023 Order for Judgment as being unnecessary in light of
[appellants’] clarified positions.” In short, the district court withdrew its legal analysis of
the latent ambiguity in the relevant deeds and “replaced” it with appellants’ “concession
that the lake parcel deed contains a latent ambiguity.”

10
error. An appellate court examines the record to see “[i]f there is reasonable evidence in

the record to support the [district] court’s findings,” and in doing so, the appellate court

views “the evidence in the light most favorable” to the district court’s decision. Rasmussen

v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013) (quotation omitted). To

conclude that the district court’s “[f]indings of fact . . . are clearly erroneous,” the appellate

court “must be left with the definite and firm conviction that a mistake has been made.” Id.

(quotations omitted). Still, appellate courts review de novo the district court’s interpretation

of the language in a deed. Marine Credit Union v. Detlefson-Delano, 830 N.W.2d 859, 866

(Minn. 2013). “[W]hether a written instrument is ambiguous is a question of law subject

to de novo review.” Mollico v. Mollico, 628 N.W.2d 637, 641 (Minn. App. 2001)

(determining that a deed’s language is unambiguous).

Respondent seeks to resolve a boundary dispute with appellants. A district court

may grant relief when

[a]n action [is] brought by any person owning land or any
interest therein against the owner, or persons interested in
adjoining land, to have the boundary lines established; and
when the boundary lines of two or more tracts depend upon any
common point, line, or landmark, an action may be brought by
the owner or any person interested in any of such tracts, against
the owners or persons interested in the other tracts, to have all
the boundary lines established.

Minn. Stat. § 559.23 (2022). Briefly stated, this statute allows a landowner to settle

controversies with an adjoining landowner about boundary lines that depend on a common

point. Id. Under this statute, a district court establishes present boundary lines, not merely

the location of the original government boundary line separating disputed properties.

11
Stadin v. Helin, 79 N.W. 537, 537-38 (Minn. 1899) (interpreting a previous version of the

statute).

Appellants raise three issues: (1) whether the district court legally erred in

determining that the lake deed is ambiguous and may be interpreted using extrinsic

evidence, (2) whether the district court’s factual findings are clearly erroneous, and

(3) whether the district court’s decision is contrary to Minnesota law. Because the third

issue relates to the first issue, we have combined those issues and discuss them together.

I. The 1933 deed for the lake parcel is ambiguous.

We interpret contracts and deeds using the same rules. See Romanchuk v. Plotkin,

9 N.W.2d 421, 426 (Minn. 1943) (stating that “[r]ules of construction are mere aids in

ascertaining the meanings of writings whether they are statues, contracts, deeds, or

mortgages”). Our goal is “to ascertain and give effect to the intention of the parties.”

Dittrich v. Ubl, 13 N.W.2d 384, 390 (Minn. 1944). A deed “not only fix[es] the rights of

the immediate parties, but affect[s] those of every one who subsequently acquires an

interest in [the] land.” La Cook Farm Land Co. v. N. Lumber Co., 200 N.W. 801, 802

(Minn. 1924). Thus, appellate courts recognize that it is “of the highest importance that the

legal effect of a deed should not be a matter of doubt.” Id.

To interpret a deed, we first determine whether a deed’s language is ambiguous. See

Mollico, 628 N.W.2d at 640. If a deed’s language is unambiguous, then we interpret the

language as written. See id. at 641. A writing is ambiguous if “it is reasonably susceptible

to more than one interpretation.” Art Goebel, Inc. v. N. Suburban Agencies, Inc.,

567 N.W.2d 511, 515 (Minn. 1997). If a deed’s language is ambiguous, a court may

12
consider extrinsic evidence to determine the intent of the parties who entered into the deed.

State v. Hess, 684 N.W.2d 414, 423 (Minn. 2004) (quiet-title action). Extrinsic evidence is

“admissible to clarify ambiguous terms” in a written instrument, but not “to vary terms

whose meaning is plain.” Hayle Floor Covering Inc. v. First Minn. Constr. Co.,

253 N.W.2d 809, 812 (Minn. 1977); see also Danielson v. Danielson, 721 N.W.2d 335,

338 (Minn. App. 2006) (“[W]hen parties reduce their agreement to writing, parol evidence

is ordinarily inadmissible to vary, contradict, or alter the written agreement.” (quotation

omitted)). In other words, when extrinsic evidence is permitted, it may not be used to

contradict the unambiguous text of the deed.

The district court noted some caselaw helpful to our interpretation of the relevant

deed. First, original government surveys may be used to interpret a deed. When a deed

refers to a lot created by an original government survey, the lines, descriptions, and

landmarks contained in the survey are considered part of the deed. Jefferis v. E. Omaha

Land Co., 134 U.S. 178, 194-95 (1890); Nicolin v. Schneiderhand, 33 N.W. 33, 33 (Minn.

1887). Thus, because the 1933 deed to the lake parcel refers to Government Lot 1, which

is in the GLO map, we conclude that the 1858 government survey is part of the 1933 deed.

Second, as discussed above, government surveys include meander lines to represent

the shoreline of bodies of water. Great N. Ry. Co., 63 N.W. at 98. Meander lines “are not

boundary lines.” Id. Instead, “the water, and not the meander line, constitutes the boundary

13
of the land.” Moscrip v. Webster Lumber Co., 204 N.W. 326, 328 (Minn. 1925). 4 Still, a

meander line may be prima facie evidence of the location of a shoreline, although this

presumption may be rebutted. In re Cnty. Ditch No. 67, 186 N.W. 711, 712 (Minn. 1922). 5

Third, owners of parcels “abutting on the meander line” are deemed to “own the

land between the meander line and the lake shore.” 6 Shea v. Cloquet Lumber Co., 100 N.W.

111, 111 (Minn. 1904) (citing Sec. Land & Expl. Co. v. Burns, 91 N.W. 304 (Minn. 1902)).

Often, significant land exists between the meander line and the shoreline of a body of water,

called an “overrun in acreage.” Johnson v. Rost, 204 N.W. 642, 643 (Minn. 1925) (stating

that “[u]sually there is an overrun in acreage to the advantage of the [original] purchaser”

of a government lot); see also Everson v. City of Waseca, 46 N.W. 405, 405 (Minn. 1890)

4
If a property description designates a boundary other than the water line, however, the
designated boundary is the proper boundary rather than a body of water. See Gridley v.
Lenroot (In re Gridley), 126 N.W. 897, 898 (Minn. 1910).
5
Courts also have used meander lines to equitably apportion lands omitted from the
government survey or lands subject to relictions or accretions of bodies of water or to
determine rights to lake beds. See United States v. Pappas, 814 F.2d 1342, 1344 (9th Cir.
1987) (omitted lands); State v. Adams, 89 N.W.2d 661, 687 n.18 (Minn. 1957) (lake beds);
Hanson v. Rice, 92 N.W. 982, 983 (Minn. 1903) (relictions and accretions). Neither party
sought equitable apportionment here.
6
The district court also noted that “the owner of land bordering a non-navigable body of
water in Minnesota has conditional title all the way to the center of the lake,” quoting
Adams, 89 N.W.2d at 687 n.18. The district court posited that Thunder Lake may have
been navigable at one time but is now non-navigable. And the district court observed that
neither party offered evidence about the location of the center of the lake or “about where
lines drawn between that point and points to the original government meander lines would
be,” which “are generally used to determine how to apportion relictions created by
lowering of lake levels over time.” The district court stated that it did not consider the
center point of Thunder Lake when determining the disputed boundary lines. Neither party
challenges this on appeal.

14
(determining that a purchaser of land acquired title to “several acres of dry land between

[a meander line] and the shore”).

With these principles of law in mind, we consider the 1933 deed for the lake parcel.

We note that the parties agree that the 1933 deed is the relevant deed because it divided the

larger parcel to create the lake parcel. Also, the 1939 deed describes the farm parcel based

on the lake parcel by noting that the farm parcel does not include “the East sixteen (16)

acres” of Government Lot 1.

The 1933 deed described the lake parcel as the “East sixteen (16) acres of Lot One

(1).” Appellants argue in their brief to this court that the 1933 deed is unambiguous. 7 The

district court summarized appellants’ position as arguing that “the original parties

necessarily intended to convey 16 acres of the actual upland portion of the parcel” with the

actual shoreline of the lake as the eastern boundary. Respondent argues that the deed is

7
While appellants argue in their brief to this court that the district court erred by
determining that 1933 deed was ambiguous, appellants’ position on the deed’s language is
unclear. Appellants acknowledged in their memorandum in support of their motion for
amended findings “that there is a latent ambiguity when the deed is applied on the ground,”
conceding that the deed is ambiguous. Similarly, in appellants’ brief to this court, they
noted that “[c]ertain of the expert surveyors classified” the deed as having “a latent
ambiguity” because it was ambiguous “how the deed applies on the ground.” Appellants’
expert witnesses testified that the deed was ambiguous on the ground. This reference to
“on the ground” ambiguity—latent ambiguity—is not a meaningful distinction. Under
Minnesota caselaw, the “old distinction between patent and latent ambiguity, [was] never
more than an unprofitable subtlety . . . [and] may be wholly disregarded.” Wilmot v.
Minneapolis Auto. Trade Ass’n, 210 N.W. 861, 861-62 (Minn. 1926). We accordingly do
not address appellants’ attempt to distinguish between latent and patent ambiguity in the
1933 deed. While we continue our de novo legal analysis of the 1933 deed, we consider
appellants, at the very least, to have conceded that the 1933 deed may be ambiguous.

15
ambiguous for the same reason the district court found it ambiguous: the deed does not

show the “subject” or “proper reference” to locate the 16 acres conveyed.

We agree with respondent that the 1933 deed does not refer to a landmark for

determining where the 16 acres are located. While the lake parcel is described as “east” in

Government Lot 1, and this lot has Thunder Lake as its eastern boundary, no other point

of reference is included for the northern, western, or southern boundary. With this in mind,

we examine two reasonable interpretations of the 1933 deed.

First, the 1933 deed suggests that the original parties intended to convey 16 actual

acres of Government Lot 1 bounded on the east by the shoreline or high-water mark of

Thunder Lake. Tyler Pogreba testified about this interpretation at trial and drew an

illustrative trial exhibit based on historic aerial photos. The appellants’ three expert

surveyors offered testimony giving a similar interpretation, although they would not use

historic aerial photos to determine the high-water mark of Thunder Lake. Tyler’s

illustrative map, exhibit 122, shows an approximation of where appellants asserted the 16

acres are located.

16
 Second, the 1933 deed suggests that the original parties intended to convey 16

nominal acres for which the meander line on the GLO map is used to determine the western

boundary. Jahner testified about this interpretation at trial and used this interpretation to

conduct a survey, which was received as a trial exhibit. According to caselaw, Jahner’s

interpretation means that the purchaser of the lake parcel not only acquired 16 nominal

acres above the meander line, but also acquired the acreage between the meander line and

the shoreline. See Shea, 100 N.W. at 111 (stating that the “general rule” is that owners of

a lot abutting a meander line “own the land between the meander line and the lake shore”).

The relevant portion of Jahner’s survey, exhibit 4, shows where respondent asserted the 16

acres are located.

17
 Appellants contend that the second interpretation is not reasonable because caselaw

precludes interpreting a deed to convey nominal acres. Appellants rely on a

nonprecedential opinion of this court. We note that nonprecedential opinions are not

binding on this court but may be persuasive. Minn. R. Civ. App. P. 136.01, subd. 1(c);

Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993) (stating that

nonprecedential opinions by the court of appeals are not binding but “can be of persuasive

value”).

18
 In Hess v. Neyens, we considered a boundary dispute that arose after Hess purchased

a portion of Neyens’s farm. No. C6-95-2324, 1996 WL 438798, at *1-2 (Minn. App.

Aug. 6, 1996). Hess’s deed described the parcel as “‘Government Lots Five (5), Six (6)

and Seven (7) and the Southeast Quarter of the Southwest Quarter (SE ¼ or SW ¼)’ in

section two. This description ended with the phrase ‘consisting of 167 acres, more or less.’”

Id. The parties disputed whether the acres between the lakeshore and the meander line were

conveyed by Hess’s deed. Id. at *2. Hess sought to reform the deed to 167 acres west of

the meander line, claiming that he would also own the 43.2 meandered acres to the

shoreline or receive damages. Id. The district court first rejected Hess’s reformation claim

on summary judgment and, after a trial, entered judgment for Neyens on the damages

claim. Id. We affirmed after concluding that the deed conveyed “approximately 167 acres,

43.2 of which are so-called meandered acres.” Id.

We do not find Hess persuasive for the same reasons the district court rejected it,

though the district court noted a “superficial similarity” between Hess’s case and this case.

First, the 1933 deed refers to 16 acres, which is a material difference from Hess’s case. As

the district court explained, “this case involves the division of a government lot in terms of

acreage alone,” while Hess “involved the conveyance of whole lots by fully-defined

borders, by a sale in gross” of 167 acres more or less. Second, as the district court stated,

“this case involves a dispute about the meaning of a written instrument from long ago,”

while Hess “was a dispute about whether a recent written instrument contradicted the

known intentions of its drafters.”

19
 This second point is significant because Hess did not involve an unambiguous deed,

as appellants imply. Our opinion in Hess identified six pieces of extrinsic evidence that

supported the district court’s conclusion that Hess’s deed conveyed meandered acres. Id.

From this, we infer that Hess’s deed was ambiguous, although the opinion does not state it

directly.

Appellants ask us to rely on Hess to conclude that a deed may not be interpreted to

refer to nominal acres from an original government survey. It is true that this court

commented that Hess did not cite any “authority for the proposition that the acres

mentioned in his deed must be ‘deeded’ acres,” and accordingly, we saw “no lawful basis

to attribute to a reference to ‘acres’ a construction that regards only ‘deeded’ acres.” Id.

We will assume that Hess’s reference to 167 “deeded” acres is to 167 “nominal” acres as

depicted in the original government survey. But we conclude that this court in Hess

declined to consider nominal acres from the original government survey based on the

district court’s decision to rely on extrinsic evidence. Accordingly, Hess does not support

appellants’ claim that a deed may not be interpreted to refer to nominal acres; Hess shows

only that extrinsic evidence in that case did not support that particular finding.

Appellants also contend that the second interpretation is not reasonable because it

uses meander lines. To be clear, the second interpretation does not use the meander line as

a boundary. See Shea, 100 N.W. at 111 (citing Kirwan v. Murphy, 83 F. 275 (8th Cir.

1897)) (summarizing caselaw as stating that “the meander line run by the government

surveyors was not a boundary line and that title of the owners of abutting property extended

to the lake shore”). The second interpretation uses the meander line as a reference point to

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locate the boundary between the lake and farm parcels and thus to locate the sixteen acres

of Government Lot 1 conveyed by the 1933 deed. The district court relied on two decisions

from foreign jurisdictions that have upheld a district court’s decision to use meander lines

when interpreting a deed.

In Thein v. Burrows, Thien owned the “South 10 acres of the North 20 acres of

Government Lot 4.” 537 P.2d 1064, 1065 (Wash. Ct. App. 1975). Jones owned the “other

parcel of land in question [which was located] immediately south” of Thein’s parcel and

contracted with Burrows to remove timber from his parcel. Id. Both parcels abutted a river

on the east. Id. Like the lake parcel here, the parcels in Thein were described “only in terms

of acreage.” Id. at 1066. Thein contended that Burrows was cutting timber on his parcel,

and the parties offered competing surveys that disagreed about whether to use a new

meander line or the meander line from the 1859 original government survey to determine

the boundary between their properties. Id. at 1065. The district court granted judgment to

Burrows after accepting the survey with the new meander line. Id.

The Washington Court of Appeals reversed the judgment. Id. at 1067. The court of

appeals first noted that meander lines are not meant to serve as boundary lines and that, “in

most cases, the boundary is deemed to run to the watercourse itself.” Id. at 1066. But the

appellate court continued: “[I]t does not necessarily follow . . . that original government

meander lines may not, or cannot be used as an aid in determining the location of a

boundary line perpendicular to the meander line.” Id. In fact, the appellate court described

the meander line as “the only available, credible evidence of the location of the

perpendicular line which will produce the north 20 acres of the Government Lot.” Id. And

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the appellate court finally concluded that, “in a case such as this, where the parcels of land

have been conveyed in terms of acreage alone since the original government survey, . . . the

original government meander line must be used in determining the appropriate boundary

lines.” Id. at 1067 (emphasis added).

Appellants argue that Thein is not persuasive because it was “limited to its narrow

holding by Erickson v. Wick, 591 P.2d 804 (Wash. [Ct.] App. 1979).” In Erickson, the

Washington Court of Appeals stated that Thein’s analysis about the relevance of meander

lines applies when “parcels of land have been conveyed in terms of acreage alone.” Id. at

807 (emphasis added). The appellate court determined that Thein did not help it understand

the facts before it because Erickson involved redrawing government survey lines “by [the]

court to achieve acreage designations shown on the official plat.” Id. We agree with the

district court that “Erickson did not overrule Thein, it simply noted that Thein applies to

very particular circumstances.” In fact, “Erickson helps to show that the result in Thein was

due to the uncommon facts of Thein,” and here, “the uncommon facts are similar.”

Accordingly, the district court properly considered Thein to be persuasive authority that a

meander line may be used to interpret the location of acreage on a deed.

Persuasive authority from the Michigan Supreme Court also indicates that a

meander line may be used to interpret a deed. Peck v. Webb involved a property that abutted

a lake on one side. 88 N.W. 888, 889 (Mich. 1902). The deed for the disputed property

included the parties’ agreement to divide some property “equally” between them and

referenced a specific number of acres. Id. After realizing that Webb claimed half the

meandered acres, Peck sought to declare that his deed measured acres “to the water’s edge.”

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Id. The Michigan Supreme Court affirmed the district court’s decision entering judgment

for Webb after determining that, since “the conveyance was made with reference to the

land inside of the meander lines,” the land should have been divided based on the meander

line and not the shoreline. Id. 8

Appellants argue that “Peck and its facts are not analogous to the facts at issue here

and the district court’s reliance on Peck is misplaced because” there is no evidence that the

parties here intended for the meander line to be the boundary. As the district court pointed

out, Peck shows that “the language of the deeds in both cases was not unambiguous.” We

agree that Peck illustrates that a deed may either refer to the shoreline as a boundary or

contemplate use of the meander line to determine the boundary. While the extrinsic

evidence of the parties’ intent in Peck differs from the extrinsic evidence of the parties’

intent here, that difference in evidence does not diminish the persuasiveness of Peck’s

analysis.

Like the Michigan Supreme Court in Peck, we conclude that the 1933 deed

conveying the lake parcel may be reasonably interpreted to convey 16 acres either with

reference to the shoreline of Thunder Lake or using the meander line from the original

government survey to determine the boundary between the lake and farm parcel. Thus, the

8
The district court cited Johnson, pointing out that “at least one court in Minnesota has
echoed the sentiment that a reference to acres does not itself define the line to be used in
determining which acres are meant to count.” 204 N.W. at 643 (determining that a deed
conveying “one acre of land on the point extending to [a lake]” was void because the point
referenced “was not definitely fixed, whether on the meander line, or high water mark, or
low water mark”).

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1933 deed is ambiguous, and the district court properly considered extrinsic evidence to

determine the intent of the original parties to the 1933 deed. See Hess, 684 N.W.2d at 423.

II. The district court’s factual findings are supported by the record evidence.

We next consider appellants’ argument that the district court erred in finding that

the original parties to the 1933 deed intended to convey the 16 acres based on nominal

acres and the meander line in the 1858 original government survey. The district court

considered extrinsic evidence to reach four main findings, which we consider in turn.

First, the district court reviewed the description of the lake parcel in the chain of

title transfers and the description of the farm parcel and quarter section that Malok

mortgaged in 1932 and which was foreclosed in 1936. The 1932 mortgage and the 1936

notice of sale by foreclosure both describe the farm parcel and quarter section as 152.12

acres, which was 16 acres less than previous deeds that described 168.12 acres, even though

the lake parcel was transferred to Steve Wieshalla in 1933.

The district court noted that, if the deed is interpreted as describing nominal acres,

the “sources of title are perfectly consistent.” “But if the acreages were not meant to be the

nominal acres, then further explanation [was] required” because there either must be “a

good reason for reading . . . the 1932 mortgage or the 1933 deed as embracing more than

the named acres” or “the instruments [are] inconsistent with each other and so create[] a

gap between the parcels.” Interpreting related deeds to create “gaps” is disfavored. See

Cannon v. Emmons, 46 N.W. 356, 358 (Minn. 1890) (noting that “it would hardly be

reasonable to suppose that the grantor . . . intended to leave a strip south of the land granted

so narrow as to be useless”). The district court determined that this evidence showed that

24
the original parties intended for the 1933 deed to refer to 16 nominal acres as shown in the

GLO map.

Second, the district court assessed the “circumstances of the 1933 conveyance” of

the lake parcel. At the time of that conveyance, the GLO map “was the only known survey

of the area,” and the lake parcel was “relatively large and wooded at the time, and it is

bordered by a shoreline that is not particularly simple”; therefore, it would have been

difficult “for private parties in 1933 to calculate the area of the land by reference to the

actual conditions on the ground.” The district court accordingly determined that it was

likely that the original parties intended for the 1933 deed to be based on the GLO map and

nominal acres, especially given that the 1933 deed transferred the lake parcel during the

Great Depression and surveys are expensive.

Third, the district court looked at the location of the lake parcel “relative to the

township road now known as Leisure Drive.” If the shoreline was far from the meander

line in 1933, “then calculating 16 acres according to the actual amount of upland would

have resulted in a gap between the parcel and the access road,” while “calculating 16 acres

above the meander line results in the lake parcel having road access in the area of the

driveway which is used now.”

Fourth, the district court looked at the “reputation of the border” between the lake

and farm parcels through testimony from individuals who previously lived on the lake and

farm parcels and who remembered an “old logging road” that they believed was the western

border of the lake parcel. The district court noted the testimony of one prior resident of the

farm parcel as “particularly credible” in identifying the logging road as the border because

25
he was “not an interested party in this litigation and his information comes from the original

owner of the lake parcel.”

The district court determined that while “accounts of the border varied in their

details, they all share the feature that they are close enough to the [respondent’s] proposed

boundary line to be consistent with it”; however, “even the furthest east of these reputed

lines is too far to the west to be consistent with any of [appellants’] proposed boundary

lines.” In denying appellants’ motion to amend and to reconsider, the district court stated

that the “more important” evidence was “the reputation of the location of the boundary,”

which “did not appear to be reconcilable with any interpretation of the deed, save for the

interpretation advanced” by respondent.

In short, the district court determined that “[a]ll of these sources of evidence”

suggested “that the original intent of the parties was to draw a boundary line that is correctly

captured by the methodology” proposed by respondent and that the boundary line between

the lake and farm parcel should thus be determined by reference to the meander line.

Appellants make three primary arguments about the district court’s findings

regarding the original parties’ intent in conveying the lake parcel in the 1933 deed based

on the extrinsic evidence. First, appellants contend that the district court erred by

considering testimony about the boundary’s reputation and the 1932 mortgage. But

appellants cite no legal authority other than the parol-evidence rule for their assertion that

this is error. We discern no error in light of the ambiguity of the deed’s language. The

district court weighed evidence about the boundary’s reputation and the 1932 mortgage to

determine whether the original parties to the 1933 deed intended to refer to the nominal

26
acres laid out the in GLO map. Appellate courts “do not reweigh the evidence that was

before the district court.” Landmark Cmty. Bank, N.A. v. Klingelhutz, 927 N.W.2d 748, 755

(Minn. App. 2019). The district court also found testimony about the logging road to be

credible, and we do not second-guess the credibility decisions of the district court. See id.

(stating that appellate courts “defer to a district court’s credibility determinations”).

Second, appellants claim that the district court improperly speculated to “fill in

gaps” to determine that 1932 mortgage suggested that the original parties intended for the

1933 deed to refer to nominal acres and the GLO map and that access via the township

road suggested that the property line should be based in part on the meander line.

Appellants’ arguments about the district court “speculating” to “fill in gaps” are not

convincing. The district court’s findings about the 1932 mortgage, the 1936 notice of sale

by foreclosure, the GLO map, the testimony about the border’s reputation, and the

township road were based on record evidence, and these findings are consistent with the

language of the 1933 deed. The district court is entitled to draw reasonable inferences and

to weigh the evidence. See Landmark Cmty. Bank, 927 N.W.2d at 755; Groe v. Comm’r of

Pub. Safety, 615 N.W.2d 837, 842 n.2 (Minn. App. 2000) (“District courts may make

reasonable inferences from the facts.”), rev. denied (Minn. Sept. 13, 2000).

Third, appellants argue that the district court must have incorrectly assessed the

extrinsic evidence because it determined that the lake parcel has 29 acres instead of 16

acres, which contradicts the acreage recited in the 1933 deed. Generally, a deed of a definite

quantity of land conveys the quantity described. See Larson v. Goettl, 114 N.W. 840, 840

(Minn. 1908) (indicating that a “deed of a definite quantity of land . . . on a particular side

27
of a larger tract, which is duly described, conveys the full quantity named”). And extrinsic

evidence is not used to contradict unambiguous language in a deed. Hayle Floor Covering,

253 N.W.2d at 812.

We conclude, however, that the district court’s judgment does not contradict the

1933 deed conveying “16 acres” because the district court determined that the original

parties intended to convey 16 nominal acres based on the GLO map. The lake parcel

includes more than 16 actual acres because the “owners of lots abutting on the meander

line” generally are held to own the land between the meander line and the lakeshore. Shea,

100 N.W. at 111. Accordingly, the district court properly determined that the 1933 deed

conveyed 16 nominal acres located based on the meander line and the western boundary

and that the lake parcel includes the meandered acres because it abuts the meander line.

Finally, appellants’ brief to this court does not address the intent of the original

parties to the 1933 deed. Instead, appellants request that we “remand with instructions to

the district court to order a survey completed” of the lake parcel “to locate the 16 acres

using the shoreline of Thunder Lake and establish judicial landmarks consistent therewith.”

This is like appellants’ argument, as stated by the district court, that “the plain meaning of

the 1933 deed requires locating the line which traces the shoreline as it actually exists at

the time a surveyor would go out onto the property once ordered to do so as part of this

action.” (Emphasis added.) The district court rejected this reasoning because “it does not

make sense that the meaning of a deed executed in 1933 would hinge on conditions on the

ground at some point in 2023.” The district court underscored that courts favor using the

high- or low-water level rather than “the actual ‘boots wet’ waterline,” that the “actual

28
waterline lacks intrinsic legal significance,” and that “there is no evidence to suggest using

the actual waterline would align the boundaries of the property with any other evidence of

the original parties’ expectations.”

We also reject appellants’ argument that the lake parcel should be determined by

reference to the current shoreline. We interpret a deed to give effect to the “intention of the

parties at the time the conveyance was made.” In re Application of Mareck, 100 N.W.2d

758, 763 (Minn. 1960). The original parties to the 1933 deed could not have intended to

refer to the current shoreline, given that shorelines vary over time. Also, courts prefer

definite and permanent property lines. See La Cook Farm Land Co., 200 N.W. at 802

(stating that it is of “highest importance that the legal effect of a deed should not be a matter

of doubt”). No record evidence attaches significance to the shoreline and the intent of the

original parties to the 1933 deed. The shoreline is not referenced in the 1933 deed or in any

deed related to the lake parcel, nor is it referenced in the extrinsic evidence offered through

the testimony of witnesses who lived on the lake and farm parcels.

Therefore, the 1933 deed is ambiguous, the district court’s factual findings are

supported by the record evidence and not clearly erroneous, and the extrinsic evidence

supports the district court’s determination that the disputed boundary between the lake and

farm parcels should be determined based on the nominal acres and meander line in the

GLO map.

Affirmed.

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