Freidig v. Weed, 2015 ND 215

Background

In 2003–2004 Laura Weed hired surveyor David Hovendick to survey parcels near Devils Lake; his 2004 certificates for two one‑acre lots stated the west boundary "shall extend or shorten to the water’s edge with the rise and fall of Devils Lake."
Weed sold one lot to the Henrys by deed that tracked the survey language; a second lot was conveyed to Marty Robertson in 2005 by a warranty deed that referenced Hovendick’s survey but omitted the "extend or shorten to the water’s edge" language and described the parcel as "0.97 acres more or less."
Robertson later sold that lot to Allan and Robin Freidig, who discovered a boundary discrepancy in 2013 and sued Weed seeking reformation of the Weed–Robertson deed to include the lake‑edge boundary and to quiet title to the littoral strip.
Weed testified she intended to convey only .97 acres and not any land below the water’s edge; she argued the deed was unambiguous and reformation was unwarranted.
The district court found a drafting error and mutual mistake, reformed the Weed–Robertson deed to include the lake‑edge language consistent with the survey, and quieted title in favor of the Freidigs.
Weed appealed; the Supreme Court affirmed, finding sufficient circumstantial evidence to support reformation and declining to address an equitable‑estoppel argument raised for the first time on appeal.

Issues

Issue	Plaintiff's Argument (Freidig)	Defendant's Argument (Weed)	Held
Whether the Weed–Robertson warranty deed should be reformed to reflect a lakeshore boundary that rises/falls with Devils Lake	Deed should be reformed because the parties intended to convey lakeshore property per the survey; omission was a mutual/drafting mistake	The deed is clear and unambiguous; Weed intended to convey only ~0.97 acres and not land below the water’s edge; no mutual mistake proven by clear and convincing evidence	Reformation affirmed: court found mutual mistake/drafting error and sufficient circumstantial evidence to support reformation
Standard and admissibility of parol evidence for reformation	Parol evidence admissible to prove mutual mistake even if writing appears unambiguous	Argues the written deed controls and parol evidence should not rewrite an unambiguous deed	Court applied established rule: parol evidence is admissible in reformation suits and assessed credibility; upheld reformation upon clear and convincing circumstantial proof
Burden of proof for reformation (clear and convincing evidence)	Freidigs met burden through surveyor testimony, listing/advertising, prior deed language, and drafter’s lack of contrary recollection	Weed contends evidence insufficient and her testimony establishes intent	Court held district court did not clearly err; circumstantial evidence and witness credibility supported the finding of mistake
Whether equitable estoppel bars reformation due to purchaser negligence	Freidigs did not raise estoppel at trial; primary claim is mistake/reformation	Weed argued purchasers negligently failed to review deed and are estopped from relief	Court declined to address estoppel because issue was not raised below; appeal cannot present new issue

Key Cases Cited

Hallin v. Lyngstad, 837 N.W.2d 888 (N.D. 2013) (deeds construed as contracts and contract‑interpretation principles apply)
Pear v. Grand Forks Motel Assocs., 553 N.W.2d 774 (N.D. 1996) (written contract interpreted to give effect to parties’ mutual intent; writing controls absent ambiguity)
Ell v. Ell, 295 N.W.2d 143 (N.D. 1980) (parol evidence admissible to prove mutual mistake for reformation; clear and convincing proof required)
Arndt v. Maki, 813 N.W.2d 564 (N.D. 2012) (reformation requires that both parties intended to say something different than the written instrument)
Heart River Partners v. Goetzfried, 703 N.W.2d 330 (N.D. 2005) (discusses mutual mistake standard for reformation)
Spitzer v. Bartelson, 773 N.W.2d 798 (N.D. 2009) (reformation is equitable remedy; factual determination reviewed for clear error)