Benson v. Feland Brothers Properties, 906 N.W.2d 98

Property around Whiskey Bay on Lake Metigoshe was subdivided from a tract acquired by Ruby Benson in 1951; relevant parcels are Outlot 10 (owned by Feland Brothers), Outlot 53 (owned by Craig Benson), and Outlot 11 (owned by the Aftems).
A 2010 survey (plat) of Outlot 53 showed a northern boomerang-shaped portion between Outlot 10 and the bay and a separate southern portion labeled Outlot 53; dispute concerns the northern portion.
Prior owners of Outlot 10 (the Olsons) made visible improvements on the disputed northern portion (stone wall, fire pit, drilled well) and paid waterfront taxes; the Felands used and maintained the area after purchasing Outlot 10 in 1997.
The deeds for Outlot 11 describe a boundary point at the junction of the high-water line and center line of a creek; a creek along Outlot 11’s southeast boundary existed though altered by dredging and clearing.
The Bensons sued to quiet title to all of Outlot 53; the Felands and Aftems counterclaimed, seeking title to the northern portion and, alternatively, asserting adverse possession. The district court located Outlot 11’s southeastern corner at the junction of the creek and bay (corner L-8/L-9 on the plat), awarded the Felands the northern portion by adverse possession, and quieted the remainder to the Bensons.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper boundary location for Outlot 11	Court should follow Berard’s 2010 plat for Outlot 53	Deed description controls; boundary is at high-water line/creek junction where L-8/L-9 lie	Court affirmed: boundary at junction (corner L-8/L-9); not clearly erroneous
Whether redefining boundaries violated Survey and Corner Recordation Act	Redefinition violates N.D.C.C. § 47-20.1-12	Statute prohibits physical disturbance of survey corners, not judicial boundary determinations	Court: statute penalizes removal of corners; does not bar court from defining boundaries consistent with deeds
Adverse possession — continuity/continuous use	Felands’ use not continuous; they lacked knowledge of prior use	Prior owners (Olsons) and Felands continuously and openly used and improved the land; uses continued after 1997	Court: continuity satisfied; uses were uninterrupted and seasonal; finding not clearly erroneous
Adverse possession — exclusivity and statutory period	Felands failed to show exclusive possession and did not meet 20-year statutory period	Olsons’ adverse possession tacked to Felands’ possession; exclusive use and acts (improvements, taxes, exclusive use) ousted record owners	Court: exclusivity and 20-year statutory period (by tacking) satisfied; title awarded to Felands by adverse possession

Radford v. Johnson, 8 N.D. 182 (original monuments control when locatable)
Propper v. Wohlwend, 16 N.D. 110 (original monuments control over plats and field notes)
State ex rel. Sprynczynatyk v. Mills, 592 N.W.2d 591 (water line as shifting but controlling boundary)
Nord v. Herrman, 621 N.W.2d 332 (standard for clearly erroneous factual findings)
Moody v. Sundley, 868 N.W.2d 491 (elements and standards for adverse possession)
James v. Griffin, 626 N.W.2d 704 (tacking successive adverse occupants in privity)
Hansford v. Silver Lake Heights, LLC, 280 P.3d 756 (deed descriptions and intent determine boundaries when unambiguous)