This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Charles L. Jacobsen, et al.,



Gary Salin, et al.,


Filed November 4, 1997

Reversed and remanded

Huspeni, Judge

St. Louis County District Court

File No. C195601642

Kyle E. Hart, Holly A.R. Hart, Fabyanske, Svoboda, Westra & Hart, P.A., 920 Second Ave. S., Suite 1100, Minneapolis, MN 55402 (for appellants)

Ann Marie Lubovich, Lubovich Law Office, P. O. Box 564, Buhl, MN 55713 (for respondents)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Kalitowski, Judge.



Appellants challenge the trial court's decision to award respondents title to a disputed parcel of property. Because the trial court did not base its decision on the boundary in dispute, we reverse and remand.


At issue in this case is a parcel of property located in Section 33 of St. Louis County. Its northern boundary extends 527 feet east-west along County Highway 101; its southern boundary runs 61 feet south of the highway. Appellants Charles and Martha Jacobsen own the property north of the disputed parcel; respondents Gary and Janet Salin own the property south of it. While St. Louis County records indicate that the Quarter line dividing the parties' properties runs down the middle of County Highway 101, so the Salins own the disputed parcel, the Jacobsens assert that the line is actually 61 feet south of the highway, and they therefore own the disputed parcel.

The Jacobsens claim the disputed property was purchased by Charles Jacobsen's parents in 1920 along with other property to the north of Highway 101; Charles Jacobsen acquired the property from his parents in 1964. The Salins claim the disputed property was purchased by Gary Salin's father when he purchased property south of Highway 101 from the Agnich family in 1954; Gary Salin acquired the land from his parents in 1984. The Agnich family also sold the land west of the disputed property and of the Salins' property to the Jacobsens in 1953. The parties do not dispute the boundary of this western land.

The checkered history of the disputed property began in 1904 when H.A. Robinson surveyed Section 33. Robinson placed an iron pipe 61 feet south of Highway 101 where he concluded that the Quarter line intersected the 1/16 corner of the section. Robinson's pipe remained in that location until an unknown person removed it in 1980. The Jacobsens assert that the pipe marked the correct location of their southern boundary line, which was 61 feet south of Highway 101.

In 1921, after discovering that the endpoints of the Quarter line were missing, the St. Louis County surveyor deputized mining engineer Charles D. Kerr to locate the missing corners. After Kerr failed to locate the west quarter corner, he obtained two affidavits from local landowners stating that the west quarter corner was located in the middle of Highway 101 and that the Quarter line ran down the middle of the highway. Kerr subsequently marked these points according to the affidavits and registered them as the accepted markings for St. Louis County. Kerr then discovered that Robinson's iron pipe allegedly marking the 1/16 corner was 61 feet south of the Quarter line Kerr had established. Kerr therefore fixed an iron pin three feet north of Highway 101 as the new 1/16 corner. The Salins argue that Kerr's 1/16 corner, the legal 1/16 corner according to St. Louis County records, has always represented their northern boundary, and they therefore own the disputed property.

In 1993, Charles Jacobsen was arrested for criminal trespass after he removed trees from the disputed property. Even though Jacobsen claimed to have planted the trees, the court ordered him to pay $1,000 in restitution and stayed its decision pending judicial resolution of this boundary dispute. In August 1995, the Jacobsens filed this claim asking the court to define the southern boundary of their property. After a one-day trial, the court awarded the Salins title to the disputed property.


A trial court determination as to a disputed boundary is one of fact and will be accorded the same deference as factual determinations in other cases. Wojahn v. Johnson, 297 N.W.2d 298, 303 (Minn. 1980). This court will reverse a trial court's findings of fact if, upon review of the entire evidence, it is left with the definite and firm conviction that a mistake has been made. In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993).

Evidence in this case centered on testimony from surveying experts as to the proper location of the East-West Quarter line. The trial court found that Kerr properly located the Quarter line in the middle of Highway 101 and awarded title to the disputed property to the Salins. The Jacobsens concede that the legal 1/16 corner is Kerr's pin, not Robinson's pipe, but argue that Robinson's pipe has become the actual corner in the last 77 years by the doctrine of practical location. The doctrine of practical location states that a disputed boundary can be established by any one of three alternative methods: agreement, acquiescence, or estoppel. 1 Wojahn, 297 N.W.2d at 304.

a. Agreement

In order to establish practical location by agreement, the disputed boundary line must have been expressly agreed to by the interested parties and later acquiesced in. Id. Though Charles Jacobsen testified that both the Agnich family and the Salins accepted that the Jacobsens owned the disputed strip of property, Gary Salin testified that he always believed that the Salins' property extended into Highway 101.

Without any written agreement, the trial court was free to listen to the testimony, consider its credibility, and determine whether an express agreement between the parties existed. Minn. R. Civ. P. 52.01 ("due regard shall be given to the opportunity of the trial court to judge credibility of the witness," and findings of fact based on oral evidence shall not be set aside unless clearly erroneous). The trial court was not clearly erroneous in concluding that no express agreement existed between the parties.


To establish practical location by acquiescence, there must be more than merely passive consent; there must be conduct or lack thereof from which assent to a boundary line may be reasonably inferred. Wojahn, 297 N.W.2d at 305. The evidence of acquiescence in a boundary dispute must be "clear, positive, and unequivocal." Id. A person attempting to prove acquiescence may introduce evidence that the previous owner of the disputed property acquiesced to the boundary before the current owners took possession. See, e.g., Phillips v. Blowers, 281 Minn. 267, 161 N.W.2d 524 (1968).

In order to obtain property by 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." Wojahn, 297 N.W.2d at 304. Acquiescence must be proven to have existed for the statutory 15-year period. Minn. Stat. § 541.02 (1996); see also In re Zahradka, 472 N.W.2d 153, 156 (Minn. App. 1991), review denied (Minn. Aug. 29, 1991).

In its findings of fact, the trial court found that the Salins' property, the Jacobsens' property, and the disputed strip were all owned by the Agnich family until 1954. The trial court also found that the current dispute began sometime before 1969. As a result, the trial court concluded that the Salins could not have acquiesced to the Jacobsens' ownership of the disputed property for the requisite 15 years.

Unfortunately, the trial court's conclusions were based on the wrong parcel of the Jacobsens' property. Though it is true that Gary Salin's parents purchased property from the Agnich family in 1954, and that the other Agnich property was sold to the Jacobsens, the boundary between these two properties is not the boundary in dispute. The property cited by the trial court borders the Salins' property to the west, while the property involved in this case borders the Salins' property to the north and was purchased by Charles Jacobsen's father in 1920. Since the Jacobsens purchased this property in 1920 and the Agnich family owned their property until 1954, the Agnich family could have acquiesced to the disputed boundary during that period. The Jacobsens argue that they did.

The Jacobsens argue that the legal description in the Salins' deed is evidence that the Agnich family conveyed title to the Salins based on the boundary line established by Robinson's pipe. According to this legal description, the Salins' property line runs

[w]est along the 1/4 line (assuming said 1/4 line to be due east-west) * * * thence go South * * * along the East line of Richardt Road for a distance of 954.10 feet to a point which is 287.87 feet North of the South line of the Northwest Quarter.

The legal description sets the distance between the Quarter line and the South line at 1241.97 feet; however, the actual distance between the middle of Highway 101, where the Quarter line is established, and the South line is 1310 feet, a difference of 68.03 feet.

This legal description also states that the northern boundary of the Salins' property runs "due east-west." If Kerr's pin were connected to a point 68.03 feet south of Highway 101, the property line would run at an angle southwest to northeast. However, if a line were drawn from Robinson's pipe to a point 68.03 feet south of Highway 101, it would be only seven feet shy of running due east-west.

Charles Jacobsen also testified that he planted trees on the disputed property south of Highway 101 in 1947 when the Agniches still owned the Salins' land and that the Agnich family asked his father's permission to use the property for access to Highway 101. Lastly, the Jacobsens introduced a map of the Salins' property that was used as deposition evidence by the Salins in a previous land dispute with the Jacobsens. This map shows the Salins' northern boundary as being south of Highway 101.

Because the trial court erroneously concluded that the disputed property was owned by the Agnich family until 1954, and there is evidence that the Agnich family may have acquiesced to the boundary before 1954, this case is remanded to determine if such acquiescence occurred.

Reversed and remanded.