This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Joel Ampe, et al.,
Michael Lutgen, et al.,
Filed July 17, 2007
Stearns County District Court
File No. C4-05-2698
Roger C. Justin, Rinke-Noonan, 1015 West St. Germain Street, Suite 300, P.O. Box 1497, St. Cloud, MN 56302 (for respondents)
Neil C. Franz, Neils, Franz & Chirhart, P.A., 1011 North Second Street, P.O. Box 307, St. Cloud, MN 56302 (for appellant)
Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
Following a bench trial, appellant Jim Weber challenges the judgment entered in favor of respondents Joel and Judith Ampe in their dispute involving the location of a boundary line between their properties on the southeast side of Grand Lake in Stearns County. Because we conclude that the district court did not err in applying the doctrine of boundary by practical location to determine the common boundary line between the parties’ property or err by declining to apply the doctrine of adverse possession, we affirm.
On appeal from a judgment where
there has been no motion for a new trial, this court reviews questions of law
de novo. Alpha Real Estate Co. v. Delta Dental Plan, 664 N.W.2d 303, 311
(Minn. 2003). “Findings of fact . . .
shall not be set aside unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge the credibility of the
district court may determine a disputed boundary by practical location. Halverson
A boundary line may be established by practical location 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
The disputed boundary line that runs generally north-south between the parties’ properties covers a strip that begins at a stake close to the lakeshore, runs along a lilac hedge, and formerly extended to a road that marked the southern borders of their properties. The evidence also establishes that respondents treated this portion of the property as the boundary line, including mowing up to the lilac hedge, maintaining and adding to the hedge, and planting a garden in the area. As to this portion of the property, appellant and his predecessors in interest acquiesced in the boundary for a sufficient time to establish a boundary by practical location. See Fishman, 237 Minn. at 6, 53 N.W.2d at 556. Therefore, we conclude that the district court did not err in finding a boundary by practical location on this portion of the property.
In 1989, the parties and another lakeshore neighbor purchased “the Wenner lot,” a wetland parcel that borders all of their properties generally to the south, to allow them to build a road that would afford their properties direct access to the main road to the south. The group apportioned this property according to the percentage of the Wenner lot that they would each need to access their own properties. The parties intended that the new road would split at the boundary line between their properties.
As to the Wenner lot, appellant claims that the district court erroneously relied on the doctrine of practical location by express agreement because when the parties agreed to a boundary line involving that portion of the property in 1989, neither of them owned the Wenner lot, because they did not receive title to the property from the Wenner family until 1990, although the Wenners allowed them to construct the road before finalizing the sale of the lot.
The evidence at trial establishes that appellant and respondents worked together to clear and stake the Wenner lot. After construction of the road, the parties signed an easement agreement regarding use of the new driveway that provided for “[a]n easement for the benefit of Ampe, Weber, and [the other neighbor] parcels as described . . . and located 16 feet on each side of the common boundary line between the Weber property . . . and the property owned by Ampe[.]”
conclude that this evidence is sufficient to demonstrate the “clear, positive,
and unequivocal” proof that respondents expressly agreed to the boundary line
on the Wenner lot. If neighboring
landowners expressly agree on a boundary, they do not need to demonstrate
acquiescence for the full 15 years to establish a claim. See Nadeau
v. Johnson, 125
Appellant next argues that the district court’s boundary line determination violates limitations set by Skelton v. Doble, 347 N.W.2d 81 (Minn. App. 1984), review denied (Minn. July 26, 1984). In Skelton, this court ruled that when a landowner made a legally ineffective sale to neighbors of a 3.47-acre parcel of property encompassing a pond and certain land surrounding it, the doctrine of boundary by practical location was inapplicable because that “doctrine is intended to resolve boundary line disputes, not to establish ownership of substantial parcels of land. Expanding the doctrine as [one parcel claimant] urge[s] would undermine the statute of frauds and the recording act.” Id. at 83 (emphasis in original).
We do not find that Skelton is controlling in this case. Here, the dispute between two adjoining neighbors concerns the boundary line between their properties, not the effectiveness of a transfer of a separate parcel owned by one neighbor to another, as was the dispute in Skelton. Further, this case does not involve a legally ineffective sale of property from one adjoining landowner to another. For these reasons, Skelton does not apply.
Finally, appellant contends that the evidence does not show that he acquiesced to the parties’ agreement regarding the location of the boundary line through the Wenner lot because the deed and easement agreement to the property prepared in 1990 “trump” any oral agreement and subsequent acquiescence by the parties to a contrary boundary line. While the deed and easement agreement contain legal descriptions that would extend the property line through the Wenner swamp, the new access road extends from the boundary line actually used by the parties that ran through the lilac hedge to the lake. The easement agreement states that the road was placed “16 feet on each side of the common boundary line between” the parties’ properties. The district court found that the parties’ placement of the driveway “was intended to be an extension of their common boundary from Grand Lake.” While the documents rely on the legal boundary line between the properties, the language of the easement agreement and the parties’ other conduct show that neither party was aware of the legal boundary line and that they agreed to a common boundary line that was contrary to the legal line. Under these circumstances, the evidence supports the district court’s application of boundary by practical location. In every case involving this legal theory, the legal description of a common boundary line will contradict the line agreed or acquiesced to by the parties.
The parties agree that if this court determines that the doctrine of boundary by practical location is inapplicable, the case should be remanded to the district court for a determination of whether the doctrine of adverse possession applies. Because we find no error in the district court’s application of the doctrine of boundary by practical location, a remand is unnecessary.
 In appellant’s reply brief, he challenges for the first time the district court’s placement of the common boundary line between the properties. Minn. R. Civ. App. P. 128.02, subd. 3, limits reply briefs to “new matter raised in the brief of the respondent.” Because respondents did not address this issue, this court need not address it on appeal. McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).