This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Shirley Ann Quast,
Michael G. Brose, et al.,
McLeod County District Court
File No. C999712
Robert A. Nicklaus, Nicklaus, Braaten & Hollenhorst, PLLC, 500 Pine Street North, Suite 200, Chaska, MN 55318 (for respondent)
Maureen Williams, Law Office of Maureen Williams, P.O. Box 913, Lakeville, MN 55044-0913 (for appellants)
Considered and decided by G. Barry Anderson, Presiding Judge, Roland C. Amundson, Judge and Daniel F. Foley, Judge.
G. BARRY ANDERSON, Judge
This case involves a boundary dispute involving adjacent properties. Respondent brought an action to quiet title to property abutting a fence separating the properties. Appellants raised the affirmative defense of adverse possession. Both parties discussed appellant’s alternative theory of practical location in their letter briefs which were submitted to the district court in lieu of final argument. Appellants challenge the district court’s order quieting title in favor of respondent. We affirm.
The parties are owners of real property in McLeod County, Minnesota. The property owned by appellant Michael G. Brose is adjacent to the south line of respondent Shirley Ann Quast’s property. A wooded area physically separates the two parcels.
The deed line runs along the southern boundary of the wooded area. But for some undetermined period of time, a fence was maintained in the middle of this wooded area. Apparently, the fence was intended to confine cattle. Except for a wooden post or two, the fence is now gone.
In 1998, Jeffrey Rausch, a land surveyor, conducted a survey for respondent. The survey established that the boundary line corresponded with the legal description set forth in respondent’s deed, the southern boundary of the wooded area.
On July 22, 1999, respondents brought a quiet-title action intending, in part, to establish the boundary line. Appellants filed an answer in which they argued by way of affirmative defense that they were entitled to the land between the pre-existing fence and the southern border of the wooded area by virtue of adverse possession. Following a June 8, 2000 trial, the court granted respondent’s quiet-title claim against appellants. This appeal follows.
Appellants challenge the district court’s rejection of practical location as a means of determining the disputed boundary line. Appellants did not assert the defense of practical location in their answer to the original complaint to quiet title. Instead, appellants raised the affirmative defense of adverse possession. Appellants do not challenge the district court’s ruling on their adverse possession defense in this appeal.
The record reveals no specific mention of a practical-location theory at trial. But in lieu of final argument, the parties submitted letter briefs to the court. It is in these letter briefs that discussion of practical location first appears. The legal theories of adverse possession and practical location are not interchangeable. See Denman v. Gans, 607 N.W.2d 788, 796 (Minn. App. 2000) (“Although the doctrine of practical location, at least in effect, is similar to acquiring title by adverse possession, the two theories are distinct and require proof of different elements”), review denied (Minn. June 27, 2000); see also Engquist v. Wirtjes, 243 Minn. 502, 507, 68 N.W.2d 412, 417 (1955) (stating practical location is “independent of adverse possession”).
Respondent argues that appellant should be precluded from asserting practical location on appeal because it was not asserted in appellant’s responsive pleadings. Generally, “relief cannot be based on issues that are neither pleaded nor voluntarily litigated.” Roberge v. Cambridge Co-op. Creamery Co., 243 Minn. 230, 234, 67 N.W.2d 400, 403 (1954). Although appellants did not assert practical location as an affirmative defense in their responsive pleadings, it was raised in the letter briefs submitted in lieu of final argument. Because respondent did not object when appellant raised this defense, respondent impliedly consented to litigation of this issue. See Septran, Inc. v. Independent Sch. Dist. No. 271, 555 N.W.2d 915, 919 (Minn. App. 1996) (stating consent to litigate issues not raised in pleadings may be implied when party fails to object), review denied (Minn. Feb. 27, 1997).
Respondent reasonably argues that, under Truesdale v. Friedman, consent to try an issue outside the pleadings cannot be implied where the evidence is pertinent to issues actually identified in the pleadings. 270 Minn. 109, 124, 132 N.W.2d 854, 864 (1965). Admittedly, the evidence necessary to support theories of adverse possession and practical location is very similar. But here, respondent’s argument is substantially weakened because respondent was actually the first party to discuss practical location in the letter briefs. Thus, we conclude practical location is properly argued here on appeal.
A party seeking to establish a boundary by practical location, whether through acquiescence, agreement, or estoppel, has the burden of doing so by clear and convincing evidence. See Phillips v. Blowers, 281 Minn. 267, 269, 161 N.W.2d 524, 526-27 (1968) (evidence must be “clear, positive and unequivocal”) (citation omitted). The district court’s determination of a disputed boundary is a factual determination, which is accorded the same deference on appeal as any other factual determination. Allred v. Reed, 362 N.W.2d 374, 376 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985). On appeal, the district court’s findings on the practical location of a boundary will not be reversed unless manifestly and palpably contrary to the evidence. Gifford v. Vore, 245 Minn. 432, 434, 72 N.W.2d 625, 627 (1955).
The practical location of a boundary line can only be established in one of three ways:
(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 done had the line been in dispute.
Fishman v. Nielsen, 237 Minn. 1, 6, 53 N.W.2d 553, 556 (1952).
“[T]he acquiescence required is not merely passive consent to the existence of a fence * * * but rather is conduct or lack thereof from which assent to the fence * * * as a boundary line may be reasonably inferred.” Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980) (quoting Engquist, 243 Minn. at 507-08, 68 N.W.2d at 417); see Weis v. Kozak, 410 N.W.2d 903, 906 (Minn. App. 1987) (constructing fence to restrain cattle did not establish acquiescence). The evidence of acquiescence in a boundary dispute must be “clear, positive, and unequivocal.” Wojahn, 297 N.W.2d at 305.
Here, the district court found that the purpose of the fence was to confine cattle. While the district court did find that the fence had been in existence for the required 15-year minimum to establish practical location, the record is devoid of evidence to support the argument that the fence was built in an attempt to define the true boundary line between the properties. See Minn. Stat. § 541.02 (2000) (setting the 15-year minimum). The district court stated that it was “unable to conclude that the parties or their predecessors in title intended the fence to be the boundary line between the properties.” This conclusion is supported by the record.
The disputed strip of land is a wooded area between two open and cultivated fields. The fence that was located in the wooded area had apparently been erected to keep cattle from straying across the property line. The record also reveals that the fence fell into disrepair, and only remnants remain. The record indicates that the land was never plowed all the way to the fence. In other words, it appears that there has always been at least some brush or trees at the fence line. The district court specifically found that “[t]here was no evidence that either [respondent] or the [appellant] used the wooded strip other than to maintain the fence.” This conclusion is also supported by the record.
Similarly, nothing in the record reflects an “express agreement” between the parties that the fence constituted the true boundary line. Appellant argues that there was an express agreement, but does not point to any evidence or testimony supporting the existence of an agreement, express or otherwise. Absent a written agreement, the district court was free to listen to the testimony, consider its credibility, and determine whether an express agreement between the parties existed. Minn. R. Civ. P. 52.01 (“due regard shall be given to the opportunity of the trial court to judge credibility of the witness,” and findings of fact based on oral or documentary evidence shall not be set aside unless clearly erroneous). The district court did not clearly err by concluding that no express agreement existed.
Finally, with regard to estoppel, the district court found that what was left of a fence was located in the middle of the wooded area on the boundary line of the parties’ properties. The court further found that there was no evidence that either party used the wooded strip other than to maintain the fence. Therefore, the record does not reflect encroachment upon the disputed wooded strip by appellants, nor is there evidence of expense incurred by appellants in reliance upon this fence/boundary line. Thus, we affirm the district court’s dismissal of the estoppel claim.
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellants filed their notice of appeal from the September 19, 2000 order for judgment on November 22, 2000. Respondent sought dismissal of the appeal on January 5, 2001, on the basis that the appeal was premature because judgment had not been entered. Judgment was actually entered on October 27, 2000. In an order dated January 10, 2001, this court concluded that judgment had indeed been entered before the appeal was filed, and that the appeal was therefore not premature. We construe the appeal to be from the judgment entered on October 27, 2000.