This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1997

 

Ronald N. Zebeck, et al.,
Respondents,

vs.

Anthony Soderman,
Appellant.

 

Filed September 7, 2004

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 02-09926

 

 

Marc D. Simpson, Leonard, Street and Deinard, 150 South Fifth Street, Suite 2300, Minneapolis, MN  55402 (for respondents)

 

 

Richard S. Little, 7899 Chesshire Lane, Maple Grove, MN  55311 (for appellant)

 

 

            Considered and decided by Anderson, Presiding Judge; Peterson, Judge, and Parker, Judge.*


U N P U B L I S H E D    O P I N I O N

PETERSON, Judge

On appeal in this boundary-line dispute, appellant argues that the district court erred when it found that a fence did not constitute the boundary between appellant’s and respondents’ property based on the doctrine of practical location by estoppel.  Because appellant did not present clear, positive, and unequivocal evidence establishing the location of the boundary line, we affirm.

FACTS

            Appellant Anthony R. Soderman owns property that is directly north of property owned by respondents Ronald N. and Rita J. Zebeck.  The descriptions on the certificates of title for the parties’ property show no gap or overlap between the two parcels.  Appellant’s property was originally registered in 1926, and a portion of respondents’ property was originally registered in 1946.  When originally registered, respondents’ property was located in the plat of Forest Lake Park, and a ten-foot-wide alley was located adjacent to and north of the property. 

            In 1960, appellant’s predecessor in interest obtained a building permit, and a house and garage were constructed on appellant’s property.  The driveway leading to the garage runs east and west and turns north towards the garage entrance.  The garage opening faces south towards respondents’ property.  Two triangular-shaped portions of the driveway encroached onto the alley. 

In 1961, Ken Cronstrom built a chain-link fence south of appellant’s driveway.  Appellant testified that Ken Cronstrom told appellant that the fence was on the boundary line. 

In October 1962, the Hennepin County District court vacated the alley that ran along the north edge of respondents’ property, and title to the alley was held to be in Cronstroms, Inc., which owned the property adjacent to and south of the alley.  In November 1967, upon Cronstroms, Inc.’s petition, the Hennepin County District Court issued an order directing that upon the filing with the registrar of titles of a certified copy of the October 1962 judgment, the vacated alley be added to the legal description of Cronstroms, Inc.’s property, which is now respondents’ property.  The order states, “there were no persons or parties to whom notice of this proceeding was given.”  Certified copies of the October 1962 judgment and the November 1967 order were filed with the Hennepin County registrar of titles office on November 29, 1967. 

Appellant acquired his property in 1977.  Appellant presented evidence that he maintained the property north of the chain-link fence.  Appellant watered and mowed the lawn, removed weeds, shoveled snow, and raked leaves up to the fence line.  Appellant stacked logs along the fence and stored his boat there.  In 1988, appellant drilled a well on the disputed property north of the fence.  In 1990, appellant installed a retaining wall at the end of his driveway.  In 1999, appellant paid to have a dead tree removed from the disputed property north of the fence.  The bill for the tree removal was dated February 5, 1999. 

A preliminary grading plan prepared in August 1999 for a landscaping project planned by respondents showed that the chain-link fence was not constructed along the boundary line between the parcels described on the parties’ certificates of title; it was constructed several feet south of the boundary line.  Later in 1999, respondents removed the chain-link fence and installed a new wrought-iron fence in about the same location. 

Respondents brought this action against appellant seeking a declaratory judgment that portions of appellant’s driveway encroached on respondents’ property and requiring appellant to cease use of and remove the driveway encroachment.[1]  The parties entered into a partial stipulation of facts, and the case was tried to the court.  The district court determined that a boundary line was not established under the doctrine of practical location by estoppel and issued an order, as amended by an order filed October 8, 2003, requiring appellant to cease use of and remove the driveway encroachment.[2]  Judgment was entered accordingly, and this appeal from the judgment followed.

D E C I S I O N

            The district court has authority to determine a disputed boundary by practical location.  Halverson v. Village of Deerwood, 322 N.W.2d 761, 768 (Minn. 1982).  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).  But “[s]ince the effect of a practical location of a boundary is to divest one of property to which he has a conceded title . . ., the evidence establishing such a location must be clear, positive, and unequivocal.”  In re Zahradka, 472 N.W.2d 153, 156 (Minn. App. 1991) (omission in original) (quoting Moore v. Henricksen, 282 Minn. 509, 516, 165 N.W.2d 209, 215 (1968)), review denied (Minn. Aug. 29, 1991).

            There are three methods for establishing the practical location of a boundary line:

(1)  Acquiescence: 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) Agreement: The line must have been expressly agreed upon by the interested parties and afterwards acquiesced in.

(3) Estoppel: The party whose rights are to be barred must have silently looked on, with knowledge of the true line while the other party encroached thereon or subjected himself to expense which he would not have incurred had the line been in dispute.

 

Theros v. Phillips, 256 N.W.2d 852, 858 (Minn. 1977).

            Citing the facts that he incurred significant expense in drilling a well and constructing a retaining wall in the disputed area and that he paid to have a dead tree removed from the disputed area, appellant argues that respondents should be estopped by their silence from denying that the fence is the boundary line between the parties’ parcels of land.  But, while these facts might support a finding that appellant subjected himself to expense in regard to the land that he would not have incurred had the line been in dispute, a second requirement for establishing a boundary by practical location by estoppel is that the party whose rights are to be barred must have silently looked on, with knowledge of the true line.  Id.  The district court determined that there was no evidence that either party knew the true boundary line until the grading plan was prepared.[3]

Appellant argues that there was evidence that Ken Cronstrom knew the true boundary line because Cronstrom told appellant that the fence was on the boundary line.  Therefore, appellant contends, after the vacated alley was added to Cronstrom’s property in 1967, Cronstrom knew that the fence was well within his property line and that the land immediately north of the fence was his property, but nevertheless stood by in silence as appellant treated the fence as the boundary line and made improvements and incurred expense on that property.

Appellant’s interpretation of the evidence is not implausible.  But appellant’s testimony that Ken Cronstrom told appellant that the fence was on the boundary line does not indicate when Cronstrom made the statement or whether Cronstrom meant that the fence was on the boundary line when it was constructed or that it was on the boundary line at the time the statement was made.  And there is no evidence that indicates why Cronstroms, Inc. petitioned to have the alley vacated in October 1962 or where Ken Cronstrom thought the boundaries of the vacated alley were located.  Without any of this information, the evidence that appellant cites could also be interpreted as indicating that when Ken Cronstrom said that the fence was on the boundary line, he meant that the fence was where the boundary of his property was located after the vacated alley had been added to his property.  Or Cronstrom could simply have meant that the fence was approximately on the boundary.  The evidence does not compel any of these interpretations.  Therefore, because the evidence establishing a boundary by practical location must be clear, positive, and unequivocal, the district court did not clearly err when it found that “[a] new boundary has not been established by the Doctrine of Practical Location by Estoppel.”

Affirmed.



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

[1]  A second claim involving a well that allegedly encroached on respondents’ property was settled before trial.

[2]  The district court also determined that a boundary line was not established under the doctrine of practical location by acquiescence, but counsel for appellant indicated at oral argument that that determination is no longer being challenged on appeal.

[3] The district court referred to the grading plan as a survey.