This opinion will be unpublished and may
not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Allen G. Potvin, et al.,


Timothy A. Hall, et al.,

Reliastar Mortgage Corp., et al.,

Filed September 28, 1999
Lansing, Judge

Beltrami County District Court
File No. C09863

David G. Schueppert, Cann, Haskell, D'Albani, Schueppert, Hazelton & Rodgers, P.A., 205 Seventh Street, Bemidji, MN 56601 (for respondents)

Stephen R. Young, 1005 Paul Bunyan Drive Northwest, Bemidji, MN 56601 (for appellants)

Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


This action arises out of a dispute between adjoining property owners over the location of their common boundary. Timothy and Dorothy Hall appeal the district court's order that rejected their attempt to establish the boundary line by practical location through acquiescence and instead accepted as the true boundary a line drawn by interpreting the original plat. The district court's decision is supported by the record, and we affirm.


The boundary line in dispute is between lots 9 and 10 of the Chautauqua Beach plat, in Beltrami County. Lake Bemidji is at the east side of the plat and 22 numbered lots extend along the lake, with lot 1 being the most northerly. Each platted lot is approximately 50 feet north to south except lot 22, which is, deductively, approximately 250 feet. The property was originally platted in 1907, but the plat was incompetently prepared, and the stated measurements do not align mathematically or in actual field measurement.

Allen and Judy Potvin own lot 9, and the Halls own lots 10 and 11. The previous owners of lots 9 and 10 did not know the exact location of the platted line between the lots. The Halls believed that an existing fence separated lots 8 and 9 and estimated that the north boundary line of their lot 10 was parallel to and approximately 50 feet south of that fence. The Potvins disagreed and brought an action under Minn. Stat. § 559.23 (1996) to determine the boundary line between lots 9 and 10.

The Potvins hired surveyor Robert Murray to locate the south line of lot 9. Unable to locate any monuments left by the original surveyor, Murray used as a starting point a boundary line established between lots 20 and 21 by court action in 1966. In that action, the Beltrami County District Court established a line of occupation and ordered the surveyor, Al Bye, to place monuments to establish the line ("Bye occupation line"). Murray measured northward from the Bye occupation line. Relying on lines of occupation, Murray was able to describe lines that were consistent with how the residents were using the property and also consistent with the lot widths shown on the original 1907 plat. The district court found that Murray's method, "though not the `textbook approach,' established in a logical and persuasive manner the location of the boundary lines."

The court found that the Halls failed to demonstrate, by clear and convincing evidence, a boundary by practical location through acquiescence, agreement, or estoppel between lots 9 and 10 and held that the actual boundary was the line Murray established. The Potvins conceded that the Halls had acquired, by adverse possession, that portion of lot 9 on which the Hall home is situated, and the district court set a boundary four feet from the northern side of the Hall home.

The Halls appeal, contending that (1) they were only required to prove a boundary by practical location by a preponderance of the evidence, rather than by clear and convincing evidence; (2) they established a boundary by practical location; (3) surveyor Murray's attempt to locate the original boundary was inadequate; and (4) the line of adverse possession set by the district court fails to consider the Halls' reasonable use of their property. We address their arguments in that order.



A party seeking to establish a boundary by practical location, whether through acquiescence, agreement, or estoppel, has the burden of doing so by clear and convincing evidence. See Phillips v. Blowers, 281 Minn. 267, 269-70, 161 N.W.2d 524, 526-27 (1968) (evidence must be "clear, positive and unequivocal") (citation omitted); see also Engquist v. Wirtjes, 243 Minn. 502, 507-08, 68 N.W.2d 412, 417 (1955) (effect of finding a practical location is equivalent to acquiring title by adverse possession and requires the same evidentiary level of clear and convincing). The Halls argue that a "clear and convincing" standard does not apply to this controversy because the Potvins did not demonstrate the exact location of the originally platted boundary by means of a competent survey.

For three reasons, we reject the Halls' argument that a lower evidentiary standard applies. First, the Halls cite no authority for their argument. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (assignment of error may not be based on mere assertion and unsupported by argument or authority). Second, the district court found that Robert Murray's survey was a competent interpretation of the original plat. And third, the evidentiary standard of clear and convincing is well established in Minnesota law. As the court stated in Phillips, "The evidence establishing a boundary by practical location, as we have consistently held since Beardsley v. Crane, 52 Minn. 537, 546, 54 N.W. 740, 742 (1893), must be `clear, positive, and unequivocal.'" Phillips, 281 Minn. at 269, 161 N.W.2d at 526-27. The district court correctly applied the "clear and convincing" standard.


Under either standard of proof, the Halls contend the district court erred by rejecting their trial theory that the boundary between lots 9 and 10 was established by practical location through acquiescence. We disagree. A district court's findings on the practical location of a boundary "will not be reversed on appeal unless they are manifestly and palpably contrary to the evidence." Gifford v. Vore, 245 Minn. 432, 434, 72 N.W.2d 625, 627 (1955); see Minn. R. Civ. P. 52.01.

To prove 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." Phillips, 281 Minn. at 269 n.2, 161 N.W.2d at 526 n.2 (conditions of acquiescence must exist for at least 15 years) (citing Minn. Stat. § 541.02)). The acquiescence required is not merely passive consent, but conduct from which assent may be reasonably inferred. Engquist, 243 Minn. at 508-09, 68 N.W.2d at 417. Thus, acquiescence exists when adjoining landowers mutually construct a fence as near the property line as possible. Fishman v. Nielsen, 237 Minn. 1, 5-8, 53 N.W.2d 553, 555-56 (1952). But acquiescence does not exist when landowners erect markers or physical barriers that are not intended to identify boundaries. See Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980) (fence erected for uncertain purpose did not establish acquiescence); Gifford, 245 Minn. at 435-36, 72 N.W.2d at 628-29 (no acquiescence when one party established line of rocks she believed to be boundary); Weis v. Kozak, 410 N.W.2d 903, 906 (Minn. App. 1987) (fence constructed to restrain cattle did not establish acquiescence); LeeJoice v. Harris, 404 N.W.2d 4, 7 (Minn. App. 1987) (failure to dispute sightline as true boundary line did not establish acquiescence).

The boundary line the Halls proposed was not marked by any physical barrier, such as a fence. Instead, it was an approximate line believed by a former owner of lot 10 to be the northern boundary of lot 10. The Potvins produced significant evidence demonstrating a lack of acquiescence to this purported boundary. Specifically, the Potvins testified that for many years they have parked vehicles on the north arm of a horseshoe-shaped driveway that the Halls claim is entirely on their side of the boundary. Notably, even the former owner of lot 10, on whose estimation the Halls base their proposed boundary, believed the north arm of the driveway belonged to lot 9.

The Halls' claim of acquiescence was also contradicted by the evidence that all parties and witnesses agree that no one has ever known the exact location of the boundary. The purchase agreement by which the Halls acquired lot 10 included a $500 credit to help defray the buyer's future surveying costs. No evidence demonstrated that the parties ever agreed or intended to delineate a boundary. The district court correctly concluded that the Halls did not prove, by clear and convincing evidence, that the Potvins acquiesced in the placement of a boundary by practical location.


The Halls also assert error in the district court's accepting surveyor Murray's testimony to ascertain the likely placement of the originally platted boundary. They argue that Murray's testimony is not competent evidence of the true platted line and constitutes an impermissible re-survey. We agree that "[i]n any resurvey of an original survey the only authority that the surveyor has is to relocate the lines exactly as laid down by the original surveyor." Curtis M. Brown, Boundary Control and Legal Principles 112 (2d ed. 1969). When locating a boundary, a resurveyor is attempting to locate the line originally intended as the dividing line between two parcels of land. See generally John R. Barlow, II & Donald M. Von Cannon, Skelton on the Legal Elements of Boundaries & Adjacent Properties 68-209 (2d ed. 1997).

In attempting to locate the line originally intended as the dividing line between lots 9 and 10, surveyor Murray used the Bye occupation line as his starting point. Although not authoritative, this judicially established boundary between lots 20 and 21 was a plausible beginning point to attempt to ascertain the originally intended boundary between lots 9 and 10. Murray found that the occupation lines established by the homes and other structures on the 50-foot lots, 21 through 11, conformed to his measurements from the Bye occupation line. Murray could not have begun to measure from the southernmost boundary of lot 22 because that boundary is unknown and the width of lot 22 is unknown.

In light of the inherent problems in measuring from the southern end of the plat, Murray reasonably used the Bye occupation line as a starting point. The court found that the subsequent measurements, based on the platted widths of the lots, confirmed a pattern that convincingly established the true boundary line. The evidence supports the court's findings, and we conclude that the court did not err in setting the boundary line using Murray's interpretation of the original survey.


The line established by the court results in the Halls' house being partially located on the Potvins' property. The Potvins conceded at trial that the Halls had acquired, by adverse possession, the land on which their house is located and the bridge immediately north of the house. The district court described a line of adverse possession four feet from the north side of the Halls' house to reasonably allow for maintenance of the adversely possessed land, and extended the line to encompass the footbridge. The Halls argue the line does not provide a reasonable buffer around the house and bridge.

A district court has considerable discretion in exercising equitable powers to limit a maintenance zone attendant to adversely possessed property. See Walsh v. Cappuccio, 602 A.2d 927, 931 (R.I. 1992) (disallowing buffer zone as part of property adversely possessed when zone not consistently used); Richard R. Powell & Patrick J. Rohan, 16 Powell on Real Property |P 1018, at 91-115 (1999) (discussing importance of adhering to trial court's determination unless result is unreasonable).

A four-foot buffer around the house appears to be adequate for most maintenance purposes. The buffer line as currently drawn extends more than 9.5 feet into the Potvins' 50-foot lot at the point of the bridge. It is unclear from the record whether this buffer line will allow the Halls to make much use of the footbridge, but constriction on the use of the footbridge does not compel an extension to straighten the adverse-possession line. See Dunkel v. Roth, 211 Minn. 194, 198, 300 N.W.610, 612 (1941) (adverse possessor may not extend entire boundary to straighten a line when it would involve land beyond area actually possessed). The district court did not abuse its discretion in defining the maintenance buffer.