This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Zeda Bickhardt, et al.,





Cletus H. Gewerth, et al.,



Filed September 24, 2002


Halbrooks, Judge



Redwood County District Court

File No. CX00654


Douglas M. Thorpe, Estebo, Schnobrich, Frank & Gilk, Ltd., 315 South Washington, P.O. Box 377, Redwood Falls, MN 56283 (for appellants)


J. Brian O’Leary, O’Leary & Moritz Chartered, P.O. Box 76, Springfield, MN 56087 (for respondents)


            Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Following the trial court’s determination that the legal boundary line had been altered by practical location, appellants contend that (1) respondents failed to prove their counterclaim because they did not introduce expert evidence of the boundary based on a survey, and (2) the trial court misapplied Minn. Stat. § 559.25 (2000).  Because uncontroverted testimony established that both parties agreed that the fence line has been the boundary between their properties for more than 15 years, and because the trial court’s order comports with Minn. Stat. § 559.25, we affirm.


            The parties stipulated before trial that appellants Zeda Bickhardt, Phillip L. Bickhardt, Faith M. Arlt, Kathleen M. Pelkey, and Mary Susan Wennerberg own the south half of the north half of the southeast quarter of section 30, township 112, range 34 and that respondents Cletus H. Gewerth and Laurie Gewerth own the north half of the north half of the southeast quarter of section 30, township 112, range 34.  Both parties have owned their respective parcels of land for many years — appellant Bickhardts since 1935 and respondents’ family since 1910.  Appellants filed suit to determine the legal boundary line between the properties in preparation for a sale.  Respondents counterclaimed, alleging that the parties considered the fence line that has separated the properties for more than 50 years to be the property boundary. 

Three witnesses testified at trial.  Phillip Bickhardt stated that he grew up on appellants’ farm from 1950 to 1961.  His father farmed the land on appellants’ side from the 1950s until 1970.  Beginning in 1970, the Bickhardts continued to own the property but began renting it to Jim Nielsen, who has since farmed the same land.  Cletus Gewerth testified that he, personally, has farmed the land on the north side of the fence since 1977.  At some point, a portion of the fence dividing the north and south halves of the north half of the southeast quarter was removed by Bickhardt’s father in the 1950s.  But both Bickhardt and Gewerth testified that, where the fence no longer exists, the fence line is still visible and has been consistently treated by all as the property line. 

The third witness was Frank Vogl, a 73-year-old neighbor who has lived within five miles of the property all his life.  Vogl testified as to his observations that the crops have always been planted by the parties in relation to the fence line. 

The trial court dismissed the case after a bench trial, noting that the parties agreed that the fence line was the boundary and that both parties and their predecessors-in-interest had farmed the land in a consistent manner for more than 15 years.  The court concluded that a survey was not necessary to determine the boundary line because both sides had treated the fence line as the boundary. 

            Appellants moved for amended findings of fact and conclusions of law.  The trial court denied the motion.  Appellants challenged the dismissal and the denial of their posttrial motion.  We questioned jurisdiction on the appeal from the dismissal because the trial court had not entered judgment.  Appellants subsequently refiled their appeal from the dismissal once the trial court filed judgment.  This consolidated appeal follows.


            A party attempting to prove a boundary by practical location must do so by clear and convincing evidence.  Phillips v. Blowers, 281 Minn. 267, 269, 161 N.W.2d 524, 526-27 (1968).  The trial court’s ruling on a practical-location issue is a question of fact.  Allred v. Reed, 362 N.W.2d 374, 376 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985).  We will not disturb the trial court’s findings regarding practical location unless they are manifestly and palpably contrary to the evidence.  Gifford v. Vore, 245 Minn. 432, 434, 72 N.W.2d 625, 627 (1955). 

1.         Practical Location 


            Appellants argue that respondents failed to establish the boundary line by practical location because respondents did not call a surveyor to establish the boundary.  A party seeking to prove practical location may do so 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).  The length of time necessary to establish acquiescence to practical location is 15 years.  Minn. Stat. § 541.02 (2000).  The type of acquiescence necessary to establish practical location

is not merely passive consent to the existence of a fence or sod strip, but rather is conduct or lack thereof from which assent to the * * * boundary line may be reasonably inferred.


Engquist v. Wirtjes, 243 Minn. 502, 506, 68 N.W.2d 412, 417 (1955).  The testimony at trial indicated that all parties have treated the fence line as the boundary line for more than 15 years.  The individuals currently farming the property use the fence line as the boundary for planting crops.  Because both parties have respected the boundary line and farmed on either side of it, the evidence supports the trial court’s finding that the fence line is the boundary.

            Appellants rely on Kozak v. Weis, 348 N.W.2d 798, 803 (Minn. App. 1984), in support of their argument that a survey is necessary to determine the boundary between the properties.  In Kozak, we upheld a directed verdict against a party because it failed to provide a surveyor’s opinion as to the boundary line.  But the parties in Kozak had not agreed on the boundary line between their properties.  Id. at 800.  Here, appellants do not contest that the fence line established the boundary.  They just want a survey to establish it.  Although the aid of a survey may often be useful in determining the location of a boundary, one is not required here.  

2.         Posttrial Motion


            We review a denial of a posttrial motion under an abuse-of-discretion standard.  “[T]he purpose of a motion to amend conclusions is to permit the trial court a review of its own exercise of discretion.”  Stroh v. Stroh, 383 N.W.2d 402, 407 (Minn. App. 1986) (citation omitted).  Appellants contend that the trial court’s order does not comply with Minn. Stat. § 559.25 (2000) because it does not provide a legal description of the boundary line using permanent landmarks, such as section markers.  Minn. Stat. § 559.25 states:

The judgment shall locate and define the boundary lines involved by reference to well-known permanent landmarks, and, if it shall be deemed for the interest of the parties, after the entry of judgment, the court may direct a competent surveyor to establish a permanent stone or iron landmark in accordance with the judgment, from which future surveys of the land embraced in the judgment shall be made.  Such landmarks shall have distinctly cut or marked thereon “Judicial Landmark.”  The surveyor shall make report to the court, and in the report shall accurately describe the landmark so erected, and define its location as nearly as practicable.


Appellants claim that the fence line is not a sufficient landmark because a portion of the fence is no longer in existence.  While the trial court did not define the boundary line based on section marks or landmarks other than the fence line, the fence line is sufficient.  The parties agree that the fence line forms the boundary between the properties and all parties know the location of the line and have used it in their farming activities.  Because the fence line is a “well-known permanent landmark[],” the trial court acted within its discretion by denying appellants’ request for a description of the property based on other landmarks.  Id.

            Appellants also argue that the court’s order failed to comply with Minn. Stat. § 559.23 (2000) because it does not require presentation of a decree to the county auditor.  Minn. Stat. § 559.23 states:

An action may be brought by any person owning land or any interest therein against the owner, or persons interested in adjoining land, to have the boundary lines established; and when the boundary lines of two or more tracts depend upon any common point, line, or landmark, an action may be brought by the owner or any person interested in any of such tracts, against the owners or persons interested in the other tracts, to have all the boundary lines established.  The court shall determine any adverse claims in respect to any portion of the land involved which it may be necessary to determine for a complete settlement of the boundary lines, and shall make such order respecting costs and disbursements as it shall deem just.  The decree of the court shall be filed with the court administrator, and a certified copy thereof shall be recorded in the office of the county recorder or filed in the office of registrar of titles or both, if necessary; provided that such decree shall not be accepted for such recording or filing until it shall be presented to the county auditor who shall enter the same in the transfer record and note upon the instrument over the auditor’s official signature the words “ENTERED IN THE TRANSFER RECORD.”


The statute does not require that the order explicitly require presentation to the county auditor.  Therefore, the trial court’s order complies with the statute.