This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Wade Smith, et al.,
William Higgins, et al.,
Filed July 25, 2006
St. Louis County District Court
File No. 69DU-CV-05-204
Thomas A. Clure, Paul W. Wojciak, Johnson, Killen & Seiler, P.A., 230 West Superior Street, Suite 800, Duluth, MN 55802 (for appellants)
Robin C. Merritt, Kenneth A. Kimber, Hanft Fride, P.A., 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802 (for respondents)
Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
On appeal in this boundary dispute, appellants argue that the district court (1) made findings that are not supported by the record; (2) erred in ruling that the boundary was not established by practical location; and (3) erred in ruling that appellants failed to establish ownership by adverse possession. We affirm.
D E C I S I O N
Findings of Fact
Wade Smith and Kathleen Braddy first argue that the district court erred in
certain findings of fact. “Findings of fact, whether based on oral or
documentary evidence, shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the [district] court to judge the
credibility of the witnesses.”
and Leslie Welles owned six lots of property (Lots 5-10). In 1975, when the Welleses sold Lots 9 and 10
to their son and daughter-in-law, Jon and Kathy Welles, a survey was performed to
locate the boundary between Lot 8 and
argue that the district court clearly erred in finding that the survey obtained
by the Welleses supports the proposition that they understood that the property
line was the same as the survey line and evidences their intention to rely on the
survey for the location of the boundary line.
Appellants contend that this finding is inaccurate because the Welleses
believed that the property line ran through the shed. But the district court found the testimony of
Jon Welles stating that a survey was done when he purchased the property to get
an idea of where the property line was located to be persuasive. Jon Welles further testified that when he
built the shed, he and his father believed that the shed encroached on
also argue that the district court clearly erred in determining that a January
5, 1990 letter to William and Lurene Buhrmann when they purchased Jon and Kathy
Welles’s property was not intended to establish a boundary line or represent an
agreement concerning the location of the boundary. The district court determined that the letter
represented the parties’ intention only to acknowledge that the shed encroached
This letter will serve to acknowledge and confirm our understanding concerning the shed located on the western boundary of our property and the eastern boundary of the property you have just acquired from Mr. and Mrs. Jon L. Welles. While this shed was owned by Jon and has now been conveyed to you, you understand that a portion of this structure is currently located on the westerly five feet of our property[.]
By accepting this letter you acknowledge that you make no claim to any easement or other estate in our real property, above described, and thereby quit claim any such interest to us. We, however, confirm to you that you have our permission to allow the shed to remain where it is currently located and at our sufferance. In the event we desire to have the shed moved, we will afford you at least a 30-day written notice to accomplish the same.
The district court did not clearly err in its finding
because reasonable evidence supports the finding that the letter did not
establish a property line, but rather created an agreement that the owner of
Lot 9 would have permission to use the shed that encroached on
Appellants also argue that the district court clearly erred in finding that the intent of the agreement was to make sure that the property line stayed the same and that the position of the shed would not change the property line. This finding is supported by Sandy Welles’s deposition testimony, but appellants contend that the district court inappropriately relied on Sandy Welles’s testimony because it was irrelevant as Sandy Welles was not a signatory to the agreement and did not have an ownership interest. But Sandy Welles drafted the agreement and had discussions with George Welles and Buhrmann who signed the agreement. Additionally, Buhrmann’s testimony that Sandy Welles initiated discussions to inform Buhrmann and to protect George and Leslie Welles’s property supports this finding. The district court did not clearly err in this finding.
Finally, appellants argue that the district court clearly erred in finding that Buhrmann never intended to claim ownership of property outside of the legal description of Lots 9 and 10 and that Buhrmann understood that the legal description of the property established ownership. Appellants suggest that the district court erred because this finding fails to acknowledge Buhrmann’s understanding that he owned the property up to the point set forth in the 1990 agreement. But this finding is supported by the record. When asked whether he ever really knew where the boundary line was located, Buhrmann testified that he just maintained what he thought was the boundary and that it was never an issue. Further, Buhrmann, through the agreement, did not claim ownership to the property that the shed encroached on and testified that he never intended to extend his property beyond what he owned by legal description. Moreover, the record does not support appellants’ assertion that Buhrmann understood that he owned the property up to the point set forth in the agreement because he testified that he never really knew where the property line existed. The district court did not clearly err in this finding.
Doctrine of Practical Location
next argue that the district court erred in ruling that the doctrine of
boundary by practical location did not establish the property line. The
district court’s determination of a boundary, including whether a landowner
acquiesced by practical
ordinarily is a question of fact, which this court reviews for clear
error. Wojahn v. Johnson,297 N.W.2d 298, 303 (
A boundary by practical location may be established in one of three ways: (1) by
acquiescence for a sufficient length of time to bar a right of entry under the
statute of limitations; (2) by an express agreement of the parties claiming the
land on both sides of the line and then by acquiescence; or (3) by
estoppel. Theros v. Phillips, 256 N.W.2d 852, 858 (
first argue that the boundary line had been established by an express agreement. Appellants contend that the 1990 letter is an
express agreement. But the letter does
not establish a boundary line because the letter only intended to provide the
owner of Lot 9 permission to retain a shed that was believed to be encroaching
there has been no acquiescence. First, when
Jon Welles constructed the shed to
serve both properties, he believed that it straddled the boundary line. There was no acquiescence because Jon and
Kathy Welles never intended to claim ownership.
Second, when the Buhrmanns purchased Lots 9 and 10, they signed an
agreement acknowledging that they had permission to use the shed encroaching on
appellants argue that the district court erred in determining that they failed
to establish ownership by adverse possession.
Whether the elements of adverse
have been established is a question of fact.
Wortman v. Siedow,173
the district court concluded that the hostility element for the period required
was absent. Hostility is related to the disseisor’s entry on the land, possession of the land as
if it were his or her own, and the exclusion of others from the land. Ebenhoh v. Hodgman, 642 N.W.2d 104, 110 (