907 N.W.2d 370
N.D.2018Background
- Sauter owned a tract since 1990 (family ownership since 1942); a fence (the "Original fence") ran along the disputed boundary from at least the 1960s until removed in 2014.
- The Millers bought the neighboring parcel in 2013 (from the Heinrichs), leased the disputed grazing land, and did not survey before purchase; they renewed a grazing lease with Sauter for 2014.
- A 2013 survey showed the Original fence did not follow the true property line; the Millers removed the Original fence, built a new fence on the surveyed line, and drilled a well on the strip claimed by Sauter.
- Sauter sued to quiet title to the roughly two-acre strip; the district court found title in Sauter by acquiescence (and adverse possession), awarded damages for breach of lease and trespass, and granted attorney’s fees and costs.
- The Millers appealed, challenging acquiescence, the 20-year statutory period, the fence’s status as a boundary, liability for pre-adjudication breach/trespass, and the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sauter established a boundary by acquiescence | Original fence was long-recognized as the boundary; mutual recognition existed for 20+ years | Fence was merely a dilapidated barrier, not an intended boundary; no mutual recognition | Court affirmed acquiescence: evidence supported mutual recognition and no contrary proof from defendants |
| Whether the 20-year statutory period was disturbed | Sauter possessed within 20 years and tacking of predecessors satisfies period | Removal of the fence by Millers (pre-suit) disrupted possession and restarts the clock | Court held the period was not disturbed; fence existed >20 years up to removal and removal triggered suit rather than breaking the 20-year continuity |
| Whether title vests only at judicial adjudication or when statutory period ends (impacting breach/trespass liability) | Title by acquiescence/adverse possession vests when statutory period is satisfied, so pre-judgment acts can be wrongful | Title and ownership result only upon court judgment, so pre-judgment acts cannot be breach/trespass | Court agreed with plaintiff: title passed at end of statutory period; Millers liable for breach and trespass and ordered to pay fence replacement |
| Whether attorney’s fees and sanctions were proper | Fees and costs were warranted for injunction violation and discovery misconduct | Millers challenged abuse of discretion | Court found no abuse of discretion: fees supported by contempt of preliminary injunction and Rule 37 discovery sanction authority |
Key Cases Cited
- Brown v. Brodell, 756 N.W.2d 779 (N.D. 2008) (elements and 20‑year requirement for boundary by acquiescence)
- Manz v. Bohara, 367 N.W.2d 743 (N.D. 1985) (acquiescence requires definite, observable boundary marked by monuments or fences)
- James v. Griffin, 626 N.W.2d 704 (N.D. 2001) (tacking and continuity for acquiescence; a break in possession can defeat the 20‑year period)
- Hageness v. Davis, 896 N.W.2d 251 (N.D. 2017) (N.D.C.C. § 28‑01‑04 applies to quiet title and adverse possession claims)
- Fraley v. Minger, 829 N.E.2d 476 (Ind. 2005) (authority recognizing title by adverse possession vests at end of the statutory period)