This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-435

 

 

In the Matter of the Petition of

Joan M. Sigurdson Wurdeman, et al., petitioners,

Respondents,

 

vs.

 

City of Maplewood,

Respondent Below,

 

Patrick W. O’Brien, et al.,

Appellants.

 

 

Filed December 5, 2000

Affirmed

Holtan, Judge*

 

Ramsey County District Court
File No. C2-98-7031

 

Raymond W. Goodwin, David W. Larson, Dudley and Smith, P.A., 2602 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for respondents)

 

Clinton McLagan, McLagan & Lerman, P.A., 2025 Centre Pointe Boulevard, Suite 260, Mendota Heights, MN 55120 (for appellants)

 

            Considered and decided by Stoneburner, Presiding Judge, Forsberg, Judge,** and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N

 

HOLTAN, Judge

 

Appellants challenge an order determining boundaries, contending that the referee's decision to adopt one survey over another was not supported by the evidence.   Appellants also argue that the referee applied the wrong legal standard and applied it incorrectly for remedying the error contained in the original plat.   We affirm.

FACTS

In 1923, surveyor Walter Hobart certified the subdivision plat of Gardena Addition, located in Ramsey County.  The plat was recorded on May 5, 1924.  Lots one through eleven comprise the block of the plat where lot two, the property at issue, is located. 

Appellants Joan Sigurdson Wurdeman and Rick Wurdeman (the Wurdemans) and respondents Catherine and Patrick O’Brien (the O’Briens) are neighbors.  The O’Briens’ property abuts the Wurdemans’ property on the north.

            The Wurdemans petitioned to register their boundaries pursuant to Minn. Stat. § 508.671 (1998).  The O’Briens are the only defendants who answered.  A trial was held before the deputy examiner of titles acting as a special referee pursuant to the consent of the parties and a standing order of the district court.  The referee’s findings of fact, conclusions of law, and memorandum were made part of the district court’s January 24, 2000, interlocutory order to determine judicial boundaries.  The O’Briens appeal the order pursuant to Minn. Stat. § 508.29(4) (1998).

D E C I S I O N

            The findings of a referee, to the extent adopted by the court, are considered the findings of the court, and on appeal the district court’s findings of fact are given great deference, and will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01. Where there is reasonable evidence to support the district court’s fact-findings, this court will not disturb them.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).   But a district court’s decision on a purely legal issue is not entitled to deference and will not bind this court on review.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

I.

            Generally, when boundary disputes arise, the plat recorded by the original surveyor will be consulted.  But all four surveyors who testified in this case agreed that the courses and distances set forth in the original plat were erroneous.  That is, the courses and distances between the known monuments on the original survey differ from the actual courses and distances measured on the ground.  This dispute centers on the manner in which these errors were resolved.

Richard William, a surveyor, was called by the Wurdemans as an expert.  The Wurdemans also called surveyors Ronald Alwin and David Claypool to testify at trial.   The O’Briens called Lloyd Pew as their expert surveyor.  Only the surveys of Williams and Pew were presented.  The district court ordered that judicial landmarks be set in accordance with the survey performed by Williams.

            The problem here is that the original plat, made in 1924, shows no interior monuments and only two original monuments even appear on the plat.  Survey stakes and lines of occupation were later established, but none could be traced back to the original plat.  Williams utilized fence lines and iron pipes when conducting his resurvey, Pew did not.  Alwin also utilized the iron pipes as part of his method of surveyance.  The O’Briens’ argument, in essence, is that Pew’s survey is more accurate than that compiled by Williams and that the judicial boundaries should be set in accordance with the Pew survey.

            There is no doubt that relying on original monuments, that is, monuments that can be traced to the original plat, is preferred when conducting a resurvey.  Dittrich v. Ubl, 216 Minn. 396, 401, 13 N.W.2d 384, 388 (Minn. 1944).  Here, the parties agree that original monuments were scarce.  Therefore, it was reasonable for Williams to resort to other artificial monuments and occupational evidence when composing his resurvey of the plat.  There is a hierarchy of evidence that surveyors rely on when reconstructing the boundaries intended by the original surveyor.  Williams looked first to the few original monuments and then to other secondary evidence.  Other surveyors testified that this is an acceptable method of conducting a resurvey.  Given that it is for the trier of fact to judge the credibility of the witnesses, this court must defer to the district court’s decision that the Williams’ survey most accurately fit the intention of the original surveyor.  See Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970) (stating appellate courts defer to district courts’ assessment of weight and credibility of expert witnesses).

                                                                            II.

                The O’Briens contend that the district court improperly relied on the remnant rule when selecting the Williams’ survey.  They argue that the apportionment method for allocating the errors found in the original plat should have been adopted by the court.  The remnant rule as set forth in Barrett v. Perkins, 113 Minn. 480, 130 N.W. 67 (1911), provides that

[w]here a definite tract of land is platted and subdivided into lots of regular and specified dimensions, leaving at the end a remnant or irregular tract not sufficient from which to form a lot of the character of those laid out, * * * and it subsequently appears there is a deficiency of land to accord to each of the regular lots the dimension indicated by the plat if the irregular tract retains the area given to it, * * * the deficiency must fall upon the irregular tract * * *.

 

Id. at 480, 130 N.W. at 67.  Pew’s survey utilized an apportionment method for dealing with the plat errors and that allocated the error proportionally to all of the lots on the block.

            The court in Barrett discussed the apportionment rule, holding that it was applicable to “tracts of land subdivided into smaller tracts of specified and uniform dimensions.”   Id. at 485, 130 N.W. at 69.  To apportion the error in the original plat among all the lots corrects the error in the original plat in a manner that makes all lots responsible.  In Barrett, all the lots had a frontage of 25 feet, except one that had a frontage of 75 feet.  Because all the lots were uniform except for the last lot, the Barrett court concluded it was a remnant lot and thus would sustain the burden of the error in the original plat.  Id.

In this case, the lots, like those in Barrett, are not uniform in dimension.  Lots one and eleven, like the remnant lot in Barrett, do not have even footage along the abutting streets.  Accordingly, the evidence does support a finding that lots one and eleven are remnant lots and we conclude that the district court did not err when it applied the remnant rule to the facts at hand.

Affirmed.

 



*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

 

** Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.