795 N.W.2d 867
Minn. Ct. App.2011Background
- Swan Lake Cabin Corpown er of Lot Four (Plat of Swan Lake) seeks boundary by practical location against Lot Five.
- Lot Five’s owners (Glenn R. and Charlotte Britney) acquired title in 1990; trees were planted near Lot Five’s southeastern boundary in the 1950s.
- Hartman survey (1976) placed three iron pins on the boundary; Northern Lights survey (2007) located two pins and varied from Hartman by 2.9–6.25 feet.
- A fence and structures (sauna, shed, cabin) on Lot Four existed since the 1950s; fence was not recognized as a boundary.
- Appellant sued in 2008; district court dismissed the counterclaim for failure to follow Minn.Stat. § 508.671 and found no acquiescence or damages.
- The court concluded the boundary was accurately described by the Northern Lights survey and that neither party proved monetary damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 508.671 applicability to counterclaim | Swan Lake argues 508.671 governs boundary actions, so procedural steps were required. | Britneys contend the statute did not apply to their claim seeking ownership and possession, or that appellant failed to prove acquiescence. | 508.671 applied to appellant’s counterclaim; dismissal proper. |
| Boundary by acquiescence proof | Swan Lake claims acquiescence evidenced by long use of a fence and conduct. | Britneys argue acquiescence was not clearly, positively, unequivocally proven. | Even if procedurally compliant, acquiescence not established by clear and unequivocal evidence. |
Key Cases Cited
- Phillips v. Dolphin, 776 N.W.2d 755 (Minn.App. 2009) (Torrens Act procedure required for boundary actions)
- In re Gets, 576 N.W.2d 747 (Minn.App. 1998) (Torrens Act governs boundary-related proceedings)
- Park Elm Homeowner’s Ass’n v. Mooney, 398 N.W.2d 643 (Minn.App. 1987) (district court cannot affect title without Torrens-compliant procedure)
- Theros v. Phillips, 256 N.W.2d 852 (Minn. 1977) (clear, positive, unequivocal evidence required for practical location)
- Pratt Inv. Co. v. Kennedy, 636 N.W.2d 844 (Minn.App. 2001) (acquiescence must be clear, positive, unequivocal and lengthy)
- Engquist v. Wirtjes, 243 Minn. 502 (Minn. 1955) (acquiescence requires conduct showing assent beyond passive consent)
- Allred v. Reed, 362 N.W.2d 374 (Minn.App. 1985) (acquiescence evidence must show active recognition of boundary)
- Bjerketvedt v. Jacobson, 232 Minn. 152 (Minn. 1950) (burden of proof on party asserting practical boundary)
- Gifford v. Vore, 245 Minn. 432 (Minn. 1955) (boundary findings reviewed for substantial evidence)