This opinion will be unpublished and
may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-95-2324

Douglas M. Hess,
Appellant,

vs.

Curtis Neyens, as Personal Representative
of the Emil Neyens Estate,
Respondent.

Filed August 6, 1996
Affirmed
Crippen, Judge

Lincoln County District Court
File No. C49511

Daniel M. McDonald, McDonald & Gudmestad, 906 Fourth Avenue, P.O. Box 505, Windom, MN 56101 (for Appellant)

Leland Bush, 226 North Tyler Street, P.O. Box 449, Tyler, MN 56178 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.

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

CRIPPEN, Judge

Appellant Douglas Hess contends that his deed of certain described farmland, "consisting of 167 acres, more or less," entitles him to 167 acres, exclusive of 42 so-called meandered acres, the land lying between the edges of bodies of water and the boundaries of adjoining government lots, which are parcels that were assigned a designated number of acres when configured in the original United States Government survey. The trial court denied relief, and we affirm.

FACTS

1. The Neyens Farm

Section two in the Town of Marshfield (Township 110 North, Range 44 West of the 5th P.M.) in Lincoln County, Minnesota, contains several bodies of water. As a result, the United States Government survey includes eight numbered government lots, parcels that are divided along quarter-mile lines but with an irregular boundary or boundaries because of the adjoining waters. A specific number of acres were designated in the survey for each government lot.

In this section, government lots 5, 6, and 7 are in the south half of the section and government lots 1, 2, 3, 4, and 8 are in the north half of the section. At the time of the sale transaction in this case, Emil Neyens owned government lots 5, 6, and 7 and another adjoining 40-acre quarter quarter, the southeast quarter of the southwest quarter (SE1/4 of SW1/4). These four parcels constitute what is also described, inclusive of the lakes, as the southeast quarter (SE1/4) and the east half of the southwest quarter (E1/2 of SW1/4) of section two. In addition, Emil Neyens owned government lots 1 and 8, a strip of land between two lakes situated in the northeast quarter of section two. The Neyens building site was on one of these lots in the north half of the section.

2. Neyens--Hess Sale

Appellant purchased part of the Neyens farm. The purchase agreement refers to the "East half of the Southwest Quarter (E1/2 of SW1/4) and the Southeast Quarter (SE 1/4) of Section Two (2)." In sum, the agreement covered all of the Neyens property in the southern half of section two. The deed used an identical description, but added a correct alternate description: "Government Lots Five (5), Six (6) and Seven (7) and the Southeast Quarter of the Southwest Quarter (SE 1/4 of SW 1/4)" in section two. This description ended with the phrase "consisting of 167 acres, more or less."

3. Acreage Dispute

The Neyens land in the south half of section two included 167.5 acres of land. The Lincoln County Assessor testified that 161 of those acres were classified as tillable. A field reporter for the Lincoln County Office of the Consolidated Farm Service Agency testified that 158.2 of the acres were tillable.

Ironically, the Neyens farm permits a second formulation of acres that totals approximately 167. According to the designations in the 19th century United States Government survey, there are 83.8 acres in government lots 5, 6, and 7; using this designation and adding Neyens' additional quarter quarter, he owned a total of 123.8 acres in the south half of section two. The United States Government survey attributes 41.75 acres to government lots 1 and 8 in the north half of section two, so that Neyens' five government lots, according to the original survey and with the added quarter quarter, contain 165.5 acres.

The dispute arises because appellant contends he is entitled to 167 acres, exclusive of so-called meandered lands, those acres located between the surveyed edges of the original government lots and the present edge of adjoining bodies of water. Consequently, appellant claims the description in his deed covered only 123.8 acres and that he is entitled to relief: (a) to reform the deed to include lots 1 and 8 in his acreage or (b) to receive a refund of $28,080, the price difference between 167 and 123.8 acres.

There is conflicting testimony as to whether appellant contemplated that he was purchasing 167 nonmeandered acres at the time of sale. The trial court granted summary judgment for respondent, concluding that appellant was not entitled to obtain reformation to alter the legal description of the premises conveyed to him. The court then conducted a trial confined to the issue of appellant's claim for monetary damages. In a later order, the court found that appellant had failed to prove damages.

D E C I S I O N

Appellant supports his claim initially by arguing that his purchase was "by the acre," that he is entitled to 167 acres because the deed said "consisting of 167 acres, more or less." See Smith v. Osborn, 223 N.W.2d 913 (Wis. 1974) (in determining whether parties intended a sale in gross or a sale by the acre, it is proper to consider the conduct of the parties, the negotiations that took place both before and after execution of the documents, and all related documents).

The ?by the acre@ question is only a preliminary inquiry in this matter, and we need not resolve the question to decide the case. Appellant's plea for relief depends on the further assertion that meandered acres must be excluded, either in law or in equity, from the description of land that is stated in his deed.

Appellant's view on meandered acres is sometimes stated as a matter of law. He claims that "deeded" acres are those appearing in the United States Government survey, that meandered acres are not "deeded" acres, and that the phrase "consisting of 167 acres, more or less" calls for a conveyance of 167 "deeded" acres. He cites no authority for the proposition that the acres mentioned in his deed must be "deeded" acres, nor for the notion that there is a recognized legal concept of ?deeded acres,@ and there is no authority to that effect. We see no lawful basis to attribute to a reference to "acres" a construction that regards only "deeded" acres, as defined by appellant.

Appellant also seeks equity. He contends that the trial court erred in not taking additional evidence to show that he was entitled to 167 "deeded" acres, according to his definition. But the record provides overwhelming evidence, mostly undisputed, in favor of the trial court's construction of the deed, specifically (a) that although appellant contends he bought and demanded "deeded" acres, he accepted a purchase agreement and a deed that plainly refer to "167 acres," (b) that appellant received and enjoys use of approximately 167 acres, 43.2 of which are so-called meandered acres, transferred to him in the southern half of section two, (c) that appellant acknowledges he bought the part of the Neyens farm located in the south half of section two and did not expect a conveyance of the Neyens building site, located in the north half of the section, (d) that although appellant knew of the acreage dispute at closing, there is no evidence that he required clarification of the issue at that time, (e) that appellant is an experienced real estate dealer, and (f) that appellant was familiar with the land he purchased, having acted as an auctioneer for the parcel in an earlier sale attempt.

Appellant is not entitled to an award of damages or the equitable relief he seeks in the form of deed reformation. Although the trial court construed the deed and granted summary judgment on appellant's reformation plea, the court conducted additional trial proceedings to explore further whether appellant could demonstrate any damage, concluding again that appellant actually received what he paid for and that respondent was entitled to a judgment dismissing the claim.

Appellant contends that the trial court erred by observing in its final order that certain of appellant's evidence was unlawful parol evidence, but we need not explore that issue because that evidence was heard and it actually supports the trial court's conclusion. Similarly, appellant disputes the trial court's finding that disparages appellant's testimony, but we need not review that issue because appellant's testimony, even when it is viewed in its best light, does not lead to a different conclusion.

Affirmed.