may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Elmer Ladewig, et al.,
Peggy Backup, et al.,
Filed August 17, 1999
Winona County District Court
File No. C697261
Kenneth R. Moen, Dunlap and Seeger, P.A., Suite 505, 206 South Broadway, P.O. Box 549, Rochester, MN 55903-0549 (for appellants)
David W. VanDerHeyden, VanDerHeyden and Ruffalo, P.A., Suite 218 Marketplace Center, 1915 Highway 52 North, Rochester, MN 55903-6818 (for respondents)
Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Lansing, Judge.
Appellants challenge two fence-viewing decisions, each by separate groups of viewers, following the trial court's decision to affirm both decisions. Appellants contend (a) that their neighbors should be compelled to install a better kind of fence and (b) as to a one-half mile segment of fence, that the viewers could not divide the obligation into three parts rather than two. We affirm.
On the east side of their land in Winona County, appellants share a half-mile boundary with respondents. The same owners share a section-line boundary on the north side of appellant's land, covering one-fourth mile, less a segment on the northwest corner that is cut off by an intersecting railroad line.
Appellants prefer the use of woven wire fence on the boundaries of their land. Nevertheless, barbed wire fencing remains in place on part of the west boundary of their land and along the railroad right-of-way that intersects the corner of the land.
On May 27, 1997, viewing occurred on the two boundaries at issue in this case. Because appellants' north boundary ran along a town line, separate sets of viewers dealt with each of the boundaries.
On June 19, 1997, the first viewing report was filed, concerning the north boundary. The obligation for the fencing was divided into two parts and this division is not questioned by appellants. But appellants question the viewers' decision allowing installation of barbed wire fencing.
On June 24, 1997, the second viewing report was issued. Appellants again dispute the viewers' decision that barbed wire fencing was adequate. In addition, appellants challenge the way in which viewers made an admittedly equal distribution of responsibility for the east boundary fence. Rather than simply assigning responsibility for the north half and south half of the fence, the viewers assigned to appellants a fence obligation on both the north and the south part of the boundary, with their neighbors being assigned the obligation for a section in between. This was done, the viewers explained, because:
The terrain traversed by this partition is best divided into the open, hilltop pasture and the steep, wooded hillside. By assigning half of each type of terrain to each party the equality of both ease and difficulty of building and maintaining partition fences in the varying terrain is maintained.
The trial court determined that, "given the topography of the area" and because other sections of the fence were maintained with barbed wire, the viewing decision for barbed wire was the "most sensible option." Further, the court decided that the assignment of respondents' obligation on the east boundary properly insured equality in the obligations of the parties. Finding also that there was no mistake or fraud in the decisions of the viewers, the court ordered a judgment that appellants have no relief on their complaints regarding the viewing decision.
Fence viewing decisions have been upheld by the courts in the absence of mistake or fraud. Oxborough v. Boesser, 30 Minn. 1, 3, 13 N.W. 906, 906 (1882). Factual determinations will be upheld if supported by substantial evidence. Cable Communications Bd. v. Nor-West Cable Communications Partnership, 356 N.W.2d 658, 668 (Minn. 1984). Continuing an approach taken in other cases, we look upon the decision of fence viewers as quasi-legislative, so that they may be reviewable by the trial court and through the right of appeal. Consistent with comparable proceedings, the trial court is reviewed de novo. In re Hutchinson, 440 N.W.2d 171, 175 (Minn. App. 1989), review denied (Minn. Aug. 9, 1989).
1. Quality of the Fence
Appellants contend that Minn. Stat. § 344.02, subd. 3 (1998) should be controlling in this situation to require an order that respondents build woven wire fences. The subdivision provides that
[i]f the lands of two persons adjoin and the land of one is enclosed by a woven wire fence on all sides except the side forming a division line between the lands, each person shall erect and maintain a fence along one-half the total length of the division line. The fences must be similar in character and quality.
The fence viewers determined that this provision was inapplicable because not all sides of appellants' property are fenced with woven wire. The fence line shared with defendant Oevering and the railroad right-of-way are both also fenced with some barbed wire fencing. Because there exists substantial evidence that barbed wire fencing is in use elsewhere along appellants' property boundaries, we conclude, as did the trial court, that the viewers' decision is appropriate both on the facts and on the law.
Appellants argue that they have either complied or substantially complied with the statute to the extent that the special case provision should apply. But on only two small shared borders is there an existing continuous woven-wire border fence. Moreover, there is no authority permitting or compelling fence viewers to order fence like that used on some or most of the property boundaries; the mandate deals with lands "enclosed" by one type of fence. It should be noted, also, that subdivision 3 describes the special case and that, ordinarily, subdivision 2 applies, allowing the fence viewers to determine what type of fence should be constructed.
2. Division of Fencing Duties
Appellants also contend that the fence viewers erred in assigning non-contiguous sections of fencing to the parties. The relevant statutory provision states:
If all or a part of adjoining Minnesota land is improved and used, and one or both of the owners of the land desires the land to be partly or totally fenced, the land owners or occupants shall build and maintain a partition fence between their lands in equal shares.
Minn. Stat. § 344.03, subd. 1 (1998). The fence viewers determined that their decision met the equal-shares requirement of the statute because by assigning half of each type of terrain to each party "the equality of both ease and difficulty of building and maintaining partition fences in varying terrain is maintained."
Because the statute mandates only that the obligations be "equal" and does not mandate that the shares be contiguous, the trial court was correct in its determination that the viewers did not err. Moreover, we can conceive of no policy arguments that overwhelm the rationale of the viewers with regard to the special terrain of the boundary line.
 Appellants' east boundary had three viewers. The north boundary had a pair of viewers, one from each township. See Minn. Stat. § 344.14 (1998) (authorizing this configuration of viewers on fences along town lines).