In this boundary dispute, appellant challenges the referee’s refusal to rule that it
FACTS
The facts of this appeal are largely undisputed. Appellant Pratt Investment Company and respondent Lake Vadnais Free Church own neighboring tracts of land. In the early 1960s, respondent ordered a survey of its property (Georgi survey). This survey marked the property’s eastern boundary line 50 feet west of the recorded property line and identified two monuments along the northern part of the survey line. In 1964, Pastor Anvie Peterson of respondent church poured concrete around one of the monuments, either to preserve the monument or to mark the boundary.
In 1991, appellant ordered a survey of its property (Kemper survey), which concluded that the previously identified line, the Georgi line, was probably the common boundary between the two properties, although the easternmost line was also a possibility. In 1994, respondent ordered a new survey of its land (Carley-Torgersen survey), which concluded that the easternmost line was the common boundary.
In August 1996, appellant sued to acquire the area between the westernmost line and the easternmost line (e.g., the disputed area), principally alleging adverse possession and practical location by acquiescence, and respondent requested rule 11 sanctions. In January 2001, the referee 1 ruled in favor of respondent, finding insufficient evidence of either adverse possession or practical location, but denied sanctions. This appeal followed.
ISSUES
I. Did the referee confuse adverse possession with practical location of boundaries by acquiescence, by erroneously requiring appellant to prove possession?
II. Did the referee err by concluding that appellant did not establish its claim of practical location by acquiescence?
III. Did the referee abuse his discretion by not awarding respondent rule 11 sanctions?
ANALYSIS
I.
The legal theories of adverse possession and practical location are not interchangeable.
See Denman v. Gans,
(1) The location relied upon must have been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations; (2) the line must have been expressly agreed upon between the parties claiming the land on both sides thereof and afterward acquiesced in; or (3) the parties whose rights are to be barred must have silently looked on, with knowledge of the true line, while the other party encroached upon it or subjected himself to expense in regard to the land which he would not have had the line been in dispute.
Gifford v.
Vore,
The sheep rearing by John Mitchell, a predecessor in [appellant’s] title, was not of a sufficient character or duration to be the clear and convincing evidence of occupation as required for adverse possession or'practical location * * *.
The referee further held that, because the disputed land was vacant and heavily wooded, “there is no possession on the part of either party to constitute grounds for adverse possession or to establish the boundary by practical location.”
The referee correctly reasoned that appellant’s nonuse of the disputed land was relevant to establishing a practical location by acquiescence claim. While the findings seemingly apply more toward appellant’s adverse possession theory, they also refute appellant’s practical location claim. For example, if appellant has not used or possessed the disputed land, respondent cannot have acquiesced to any supposed boundary.
See Engquist,
II.
To acquire land by practical location of boundaries by acquiescence, a person must a show by evidence that is clear, positive, and unequivocal that the alleged property line was “acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations.”
Theros v. Phillips,
Appellant claims that respondent acquiesced to the westernmost line because (1) respondent ordered a 1964 survey that delineated the westernmost line as the common boundary; and (2) respondent fortified artificial landmarks on the westernmost line. Appellant’s argument is inconsistent with established case law.
Acquiescence exists when adjoining landowners, for example, mutually construct a fence with the intention that the fence represents an adequate reflection of the property line.
Fishman,
The acquiescence required is not merely passive consent, but conduct from which assent may be reasonably inferred.
Engquist,
Nor is there acquiescence when landowners erect markers or physical barriers that are not intended to identify boundaries.
See Gifford,
The referee correctly concluded that appellant did not put forth clear and convincing evidence of acquiescence. The referee found, for example, that appellant’s predecessor’s sheep rearing on the disputed property “was not of a sufficient character or duration to be the clear and convincing evidence of occupation as required for adverse possession or practical location ⅜ ⅜ rphyg, was insufficient evidence that appellant or its predecessors used the disputed land or relied on the 1964 boundary. And contrary to what appellant argues, the disseizor must take some action with or make some use of the disputed land. Otherwise, there would be nothing to which the disseized could acquiesce. Also, there was no clear and
Q: What was your understanding of the import of that stake that Mr. Georgi had placed there? * * * He put one in and what was he telling the world when he put the stake there?
A: All I know is that I didn’t think that it was substantial enough to remain, so I put the marker in that is usually put in.
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Q: And the purpose of [reinforcing the Georgi marker] was to mark the boundary line; is that correct?
A: Yes.
Practical location by acquiescence usually occurs when neighbors attempt to establish a fence as close to the actual boundary as possible, or when the disseizor unilaterally marks the boundary, and the disseized neighbor thereafter recognizes that line as the actual boundary. Here the parties had no agreement as to a common boundary, and each commissioned separate and independent surveys. Moreover, respondent unilaterally established the markers in 1964. As the court in Roy v. Dannehr explained,
Our decisions are to the effect that one is not to be deprived of his land because he, through mistake or ignorance, placed a fence on what he thought was the division line, when it was not such in fact, unless the evidence of practical location, or acquiescence for at least 15 years is clear, positive, and unequivocal.
III.
Minn. R. Civ. P. 11 “provide[s] relief to parties who are victims of bad pleading and abuse of process.”
State Bank of Young Am. v. Fabel,
Respondent argues that, upon remand for rule 11 sanctions, it would submit evidence that appellant has long tried to acquire respondent’s property. But respondent never brought this information to the referee’s attention and this court will not consider matters not argued and considered in the court below.
See Thiele v. Stick,
DECISION
The referee did not confuse the doctrine of practical location by acquiescence with adverse possession because, under the circumstances of this case, appellant’s nonuse of the disputed land was relevant to both claims. Also, respondent’s unilateral construction of two stakes, without any proof that respondent intended or permitted them to act as a boundary line, cannot constitute clear, positive, and unequivocal evidence of acquiescence. Appellant’s case was not so frivolous, however, that it should pay sanctions, and thus the referee did not abuse his discretion in denying respondent’s rule 11 motion.
Affirmed.