may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mildred D. Scanlan,
Beatrice L. Miller, et al.,
Filed December 16, 1997
Kenneth R. Moen, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903 (for respondent)
Karl W. Sonneman, Sonneman & Sonneman, P.A., 111 Riverfront, Suite 202, Winona, MN 55987 (for appellants)
Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Foley, Judge.*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
This action arose out of a dispute between respondent Mildred Scanlan and appellants Beatrice Miller, John Miller, and Martin Miller regarding the location of the boundary between their neighboring farms. The case was tried to the court. On a previous appeal, this court determined the recorded legal boundary as a matter of law, which resulted in Scanlan acquiring title to most of the disputed property. This court remanded the case to the trial court to determine whether Scanlan had acquired title to the remaining disputed property under the doctrines of adverse possession and practical boundary location. See Scanlan v. Miller, No. C6-95-1190 (Minn. App. Jan. 16, 1996), review denied (Minn. Mar. 28, 1996).
On remand, the trial court determined that Scanlan had acquired title to the remaining disputed property under the doctrine of practical boundary location, and judgment was entered accordingly. This appeal is from the judgment. We affirm.
The area still in dispute is a triangular area between the Blumentritt survey line and the old fence line, which includes the remaining part of the cart path. A bridge over Wild Cat Creek on Cork Hollow Road borders part of the disputed area.
In 1955, Scanlan and her husband purchased the east farm, and, in 1962, they purchased the west farm. In 1968, the Scanlans conveyed the west farm to their son, James Scanlan. James Scanlan died in 1972, and his wife, Jean Scanlan, n/k/a Jean Mindrum, conveyed the west farm to the Millers later that year.
Referring to a survey map and a diagram, during her trial testimony, Mildred Scanlan explained that the boundary line fence between the east and west farms was located along the old fence line:
Q Where was the boundary line fence as you recall it, all this while and I mean by that, since you took occupancy with your husband of those lands until 1985, where was that, where was that fence line located with reference to the road?
A It was located where Mr. Blumentritt has identified those trees and where that -- where the -- the testimony will show that there was a wire under the bridge and that fence was located from that wire to the bridge, to an oak tree that stood there.
Q Now, if you can imagine and you can use the drawing if that's helpful or the map, Mrs. Scanlan, but where was the boundary line of your farm during this period of time, that is to say, from 1955 on until about 1985 up by the road there in the area of the bridge, where was the boundary line fence?
A It was on the abutment of the bridge but there was a little wash out and I think it was moved up a few, maybe a foot or two in order to secure the post bidder but, otherwise, it was never changed, the fence was always in the same place.
* * * *
Q Now, quite often, Mrs. Scanlan, when farmers acquire another farm abutting, they remove the fences and farm it as a unit, do you understand what I am saying?
Q Why wasn't that done here? I take it, it wasn't because of your answer to the first question.
A Well, little more lengthy explanation. My husband planned to have one son own each farm, the home farm was going to be my son Gayle's and that farm was going to be James and he wanted to keep the little farm that is now mine and we never -- we always kept them separate except they worked them together because they worked together.
Q That had nothing to do with the boundary line between?
A There was no boundary line there that was moved.
* * * *
Q Would it be fair to say that there wasn't ever any attention even directed to that fence line in [the years after you transferred ownership of the west farm to your son James]?
A My husband rented the pasture on that little farm to other people. My son never used that pasture where that fence was.
Q That's another reason why it was kept separate.
Q Those were transactions you husband had with--
Q -- pasture renters and others?
* * * *
Q What happened, if anything, in the years after James passed away but before -- but before -- while Jean [Mindrum] still owned the farm with regard to the fence line, if anything.
* * * *
A We kept -- it was maintained because a few times her cattle broke through the fence and she -- it would have meant that she couldn't control them and she never wanted them to leave her farm.
Q So that fence was maintained as the boundary line?
* * * *
Q Okay, and was there any change then in the beginning [after the Millers bought the west farm] of which you are aware?
A There was -- we were aware of no controversy, they didn't have cattle on their side. We didn't have any and it did seem as if the fence -- it needed repair and, finally, when this part was found out, I questioned them to see what happened to it, I talked to Martin [Miller] about it.
Q What year was that, if you know.
A That was 1985, I guess.
Q What was it, I am sorry, what was it that you saw, Mrs. Scanlan, which prompted you to go and see one of the [Millers]?
A I saw this fence that had been there thrown out toward the creek and it was lying there. * * *
* * * *
Q And up until that time when you noticed that fence and confronted one of the [Millers] about it, there had never been any problems about the location of it that you are aware of?
A No, we were not aware of anything.
Q Or about the location of the road, the access, the field road by which you gained access to you land to the south?
A No, there was no question about it.
Q And the triangular portion, that little fragment up in the northwest corner of the drawing there, Exhibit 1, that was surrounded all this while that you are testifying about until 1985 by fences that were regularly maintained in existing locations?
* * * *
Q Well, during the period of time that you owned the lands and you are still owning them up until 1985, what, if any, changes were there in the boundary line fences as they relate specifically to that triangle now?
A That -- there was no such thing as to my knowledge as that triangle. The fence went all the way to the road, to the bridge and the bridge was on the road, of course, and there was -- there was no triangle there. It was our land.
Scanlan's daughter, Sharon Rohrer, testified as follows about the fence line along the boundary of the disputed property area:
Q Okay, now, were you familiar with that, with both of these farms initially the boundary line between them during and all the time that your brother James was alive?
A Yes, I was.
Q What can you tell the Court about the location of that boundary line?
* * * *
A Starting at Cork Hollow Road?
Q On the west end, right.
A On the west end, there was a post and I fenced it one time with my dad, that came off the bridge and went straight over to tree number one which I have some pictures of and I called it tree number one, * * * and the fence went from the corner of the gate to tree number one which is now cut down and then on to tree number two and I have got some very clear pictures of that * * *.
* * * *
Rohrer testified that from 1982 to 1985, her brother Gayle drove farm equipment, including bailers and combines, on the cart path:
Q Did anyone object to that that you are aware of, to that passage for those purposes?
A There was no question of any objection about that piece of land until 1985.
* * * *
Q Did anyone to your knowledge occupy any part of your mother's lands other than your mother, lying east of that green line [depicting the fence line on a photo] up until 1985 from the time that she owned the farm either with your father or hers?
A No, they did not occupy it.
* * * *
Q And are you aware of your personal knowledge that your mother shared in the maintenance of that fence line over the years?
A Yes, the Scanlans always maintain that boundary fence.
Q Which part of it was maintained by the Scanlans?
A The part from Cork Hollow Road up -- going up the hill was Scanlan's responsibility historically.
Q And is that the entire fence line all the way up which is now disputed?
* * * *
Q * * * What I asked you was did you ever do any fencing with your father along this boundary between this side and that side?
A Yes, as a child.
Q As a child?
A Probably, that was in 19 -- before I went to nursing school in 50's and 60, I helped him erect fences there. Excuse me, one other time when my brother, Gayle, was farming, I helped him in 1982 or was there when he was fencing in 1982 so that's probably the last time the boundary fence -- '82.
Q Whereabouts exactly did you do that or did you observe that being done?
A Along this green line here [depicting fence line on a photo].
Photographs taken by Rohrer showing the fence line running from the bridge abutment south along the tree line were admitted into evidence.
Francis Grau, who rented a pasture near the bridge over Wild Cat Creek from Scanlan's husband in 1973 or 1974 and often drove by the disputed area in later years, showed where a fence was located on the west side of Wild Cat Creek and how the fence hooked into the bridge. Grau testified that he was unaware of any changes in the fence line before 1985. He also testified that the bridge was never used as a cattle pass.
The Millers claim that when James Scanlan owned the west farm, he used the disputed area of land. Mindrum testified that when her husband owned the west farm, the east farm and the west farm were farmed as a single unit. She also testified:
Q But during the times that you and your husband were farming, he was farming both [the east farm and the west farm] and so didn't make a lot of difference where the boundaries were?
A That's right, however, I don't recall that they ever moved the boundaries. I guess he farmed it all and has not been an issue.
The Millers also claim that since buying the west farm, they have moved cattle under the bridge over Wild Cat Creek and across the disputed triangle of land. Mindrum testified that when she sold the west farm to the Millers, the fence was in poor condition and that the boundary dispute with the Millers began in 1972.
The trial court found:
3. The fence line at issue (the Scanlan fence line) existed from at least 1955 when [Scanlan] and her late husband first purchased the present Scanlan farm. The fence line was treated as an informal boundary line between these two farms by [Scanlan] and her husband during the time they owned the east farm.
4. At some time in 1968 the farm now on the West half was conveyed to James Scanlan, the son of Vince and Mildred Scanlan. The fence line continued to function as the boundary line between the two farms after the conveyance.
The trial court also found:
Members of the family did help each other out occasionally on their respective farms, but there was no evidence aside from the remark of Ms. Mindrum that the two farms were operated as a single farming operation. * * *
* * * *
The Court does believe that the Millers were on the disputed triangular piece of land at times, but this was not consistent in any manner. The Millers would have the Court believe their use was greater than it really was. * * *
The court concluded that under the doctrine of practical boundary location, the fence had been established as the boundary between the east farm and the west farm. The court explained:
There is clear, positive, and unequivocal evidence that the fence line served a boundary line between these two farm properties from approximately 1955 until its removal by the [Millers] in 1985. The Scanlan fence line was acquiesced to for a sufficient length of time barring [the Millers'] claims as to ownership. The two properties were managed as two farms throughout this period. The Scanlan fence line closely follows the common legal boundary line between these parties for much of its length. This fence line was periodically maintained by members of the Scanlan family. Finally, there was ample evidence that the Scanlans regularly used the triangular area throughout this period for accessing the ridge-owned farmland via the cart path, repairing the fence line, and renting the land to tenants.
The trial 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 trial 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) (quoting Moore v. Henricksen, 282 Minn. 509, 516, 165 N.W.2d 209, 215 (1968)) (omission in original), review denied (Minn. Aug. 29, 1991).
For a practical boundary location to be established 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." Allred, 362 N.W.2d at 376. Under the statute of limitations, the boundary location must be acquiesced in for 15 years. Minn. Stat. § 541.02 (1996); see Allred, 362 N.W.2d at 376 (citing Minn. Stat. § 541.02 (1984)).
Here, the trial court determined that the fence line was acquiesced in as the boundary from 1955 until 1985. The Millers argue that the doctrine of practical boundary location by acquiescence should not be applied when the adjoining properties have the same owner and that a period of common ownership should start the limitations period running anew. The evidence shows that the two farms have been owned by different parties since 1968, when the Scanlans conveyed the west farm to their son James.
When the practical location of a boundary is established by acquiescence in a fence line,
[t]he acquiescence required is not merely passive consent to the existence of a fence * * *, but rather is conduct or lack thereof from which assent to the fence * * * as a boundary line may be reasonably inferred.
Id. (quoting Engquist v. Wirtjes, 243 Minn. 502, 507-08, 68 N.W.2d 412, 417 (1955)). One of the most important factors is whether the parties or their predecessors-in-interest intended or recognized the fence as a boundary line. See Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980) (discussing evidence necessary to support a finding that practical location of a boundary was established by acquiescence); see also Amato v. Haraden, 280 Minn. 399, 403, 159 N.W.2d 907, 910 (1968) (considering acts and conduct of parties and their predecessors-in-interest in determining whether boundary had been established by practical location).
Scanlan testified that the fence between the east farm and the west farm existed in its present location when the Scanlans bought the east farm in 1955. The fact that the fence, for most of its length, ran along the recorded legal boundary between the two farms suggests that the builder intended it to be a boundary fence. Cf. Engquist, 243 Minn. at 508, 68 N.W.2d at 417 ("careless, irregular course of [fence] indicated that the builder did not intend it as a true boundary line"). Scanlan's testimony shows that the Scanlans and the owner of the west farm treated the fence as the boundary between the two farms and that the Scanlans and their son James treated the fence as the boundary following the 1968 conveyance to James. Scanlan explained that her husband and James maintained separate farming operations, in part because her husband conducted transactions with pasture renters and others. She testified that the Scanlans and Mindrum continued to maintain the fence as the boundary line following James's death. Finally, Scanlan's testimony shows that after the Millers acquired the west farm, the parties treated the fence as the boundary until 1985.
In addition to Scanlan's testimony, Scanlan's daughter, Rohrer, testified that, in the disputed area, the boundary between the two farms was located along the fence line; the Scanlans always maintained the boundary fence; she helped repair the fence in 1982; from 1982 to 1985, her brother Gayle drove farm equipment on the cart path, and no one objected; and until 1985, no one other than the Scanlans occupied the land east of the fence. Grau, who rented a pasture from Scanlan's husband in 1973 or 1974 and often drove by the disputed area in later years, knew where the fence was located on the west side of Wild Cat Creek and was unaware of any changes in the fence line before 1985.
The Millers claim that after acquiring the west farm in 1972, they routinely moved cattle through the disputed area. But Rohrer testified that the Millers did not use the disputed area before 1985, and Grau testified that the disputed area was not used as a cattle pass. The trial court found that the Millers were on the disputed area of land at times but that their use was not consistent in any manner. The trial court also found that the Millers wanted the court to believe that their use was greater than it really was. These findings show that the trial court found the Millers' testimony about the extent of their use of the disputed area of land not credible. This court must defer to the trial court's assessment of witness credibility. Bains v. Piper, Jaffray & Hopwood, Inc., 497 N.W.2d 263, 268 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993).
The Millers argue that the district court erred in applying the doctrine of practical boundary location by acquiescence because the deed conveying the west farm to James Scanlan is unambiguous. We disagree. Ambiguity in a deed is not a requirement for applying the doctrine. See Allred, 362 N.W.2d at 375-77 (upholding the trial court's finding of practical location of a boundary by acquiescence when the parties did not dispute the location of the boundary according to the descriptions in the deeds).
The evidence was sufficient to establish clearly and convincingly that, from 1968 until 1985, the parties and the Millers' predecessors-in-interest acquiesced in the fence as the boundary between the east farm and the west farm. The trial court properly found that the fence had been established as the boundary line under the doctrine of practical boundary location by acquiescence. See Allred, 362 N.W.2d at 376-77 (upholding finding of acquiescence in practical boundary location when appellant treated the fence as a boundary but did venture across it to pick berries); see also Fishman v. Nielsen, 237 Minn. 1, 2-9, 53 N.W.2d 553, 554-57 (1952) (affirming finding of practical boundary location by acquiescence); see also Zahradka, 472 N.W.2d at 156 (setting forth evidence supporting finding of practical boundary location by acquiescence). Because we have determined that the evidence supports the trial court's finding that the fence was acquiesced in as the boundary for at least 15 years after the Scanlans transferred the west farm to their son James, we need not determine whether common ownership of properties is inconsistent with practical boundary location by acquiescence.