A04-2227

Marlene M. Romain,

Respondent,

vs.

Anthony P. Stael,

Appellant.

Filed August 2, 2005

Affirmed; motion denied

Worke, Judge

Dakota County District Court

File No. C2-03-6359

Edward F. Rooney, 5001 Chowen Avenue South, Minneapolis, MN 55410; and

Clinton McLagan, P. O. Box 21347, Eagan, MN 55121 (for appellant)

George L. May, May & O’Brien, LLP, 204 Sibley Street, Suite 202, Hastings, MN 55033 (for respondent)

Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Worke, Judge.

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

WORKE, Judge

On appeal in this dispute regarding the boundary line between two Torrens parcels of property, appellant argues that the district court erred in (a) adopting a surveyor’s determination of an internal section line when the surveyor used a defective method of locating that line; (b) ruling that, in the alternative, respondent adversely possessed the Torrens land in question or acquired it by practical location of boundaries; and (c) failing to invoke equity to compel respondent to fulfill his prior offer to convey the land onto which appellant’s building encroached. Because the boundary line was correctly determined by the district court, we affirm.

FACTS

This appeal arises from a dispute concerning the location of the northern boundary of a parcel of land owned by respondent Marlene Romain. Respondent and her husband Donald Romain purchased the lot in 1973. On August 10, 1973, the Dakota County Registrar of Titles entered certificate of title to the Romains as fee owners of the property. The lot is Torrens property. Respondent’s lot, described as “Lot Ten (10) Block Five (5) In Palomino Hills Lakeshore Addition,” is located in a plot of land called “Government Lot 2.” The western boundary of respondent’s lot is adjacent to Lake Alimagnet, and the disputed northern border of respondent’s lot is located along the northern border of Government Lot 2.

In 1956, Government Lot 2 was registered. Although the boundaries of the lot were not registered, a certificate of title was issued by the Dakota County Registrar of Titles. The lot was legally described as Government Lot 2 of Section 20, Township 115, Range 20, Dakota County, Minnesota. The lot was later platted in 1960 and became part of the Palomino Hills Lake Shore Addition.

In 1959, in preparation for the Palomino Hills Lake Shore Addition, Government Lot 2 was surveyed by registered land surveyor James Halverson. During the survey, Halverson discovered a fence that extended directly west from the northeast corner of Government Lot 2 to the shoreline of Lake Alimagnet. Halverson determined that the fence marked the northern boundary line of Government Lot 2 (the “red line”).[1] In 1968, the property was surveyed by Robert Busch. Busch’s survey showed the same fence along the northern boundary of Government Lot 2. In addition, Busch discovered a surveyor’s iron just offshore in Lake Alimagnet along the same line where the fence was located. Based on his survey, Busch agreed with Halverson that the red line marked the northern boundary of Government Lot 2.

The northern border of Government Lot 2 is also the southern border of Government Lot 3. In 1969, Government Lot 3 was registered and a certificate of title was obtained from the Dakota County Registrar of Titles. The lot was legally described as Government Lot 3 of Section 20, Township 115, Range 20, Dakota County, Minnesota. As with Government Lot 2, the boundaries of Government Lot 3 were not registered.

In 1973, the same year that the Romains purchased their home, Carl Watrud, an executive of the Palomino Development Addition, attempted to plat part of Palomino Hills into a new subdivision called the Watrud 1st Addition. The Watrud 1st Addition involved the replatting of Lot 11, Block 5, Palomino Hills Lake Shore Addition, the lot situated directly to the east of Romain’s lot away from the lake, and Outlot Six of Palomino Hills Lake Shore Addition. Harold Peterson, who surveyed the land, determined that the red line was not the correct northerly boundary of Government Lot 2. According to Harold Peterson’s survey, the northern border of Government Lot 2 was actually located several feet south of the red line (the “green line”). Harold Peterson’s survey created a strip of land from 10 to 17 feet wide, running across the northern part of Romain’s lot down to the lake, a distance of approximately 260 feet. Part of Romain’s home encroaches on this strip of land. But despite the fact that Harold Peterson’s survey conflicted with the Halverson and Busch surveys, no monuments were placed along this line during Harold Peterson’s survey. Moreover, the plat for the Watrud 1st Addition showed the red line, rather than the green line, as its northerly boundary.

In 1977, Government Lot 3 was platted in preparation for the Cobblestone Lakeview Addition. The surveyor of the Cobblestone Lakeview Addition determined the southern boundary of the lot to be the same as the northern boundary of Government Lot 2 as donated by the red line. The surveyor also placed survey monuments along this boundary to indicate the southern boundary of the plat.

In 1985, the Palomino Development Corporation, which owned or controlled the land in Government Lot 2 and Government Lot 3 surrounding Romain’s lot, claimed to convey the alleged strip of land that was created by Harold Peterson’s survey to Watrud by quitclaim deed and for consideration of one dollar. Later that year, Watrud obtained a certificate of title purporting to show that he denied this strip of land. Although Watrud allegedly told neighbors in the area that he owned a strip of land extending to the shoreline of Lake Alimagnet, he never had the land surveyed.

In 1996, Watrud sold the purported strip of land by quitclaim deed to Ronald and Georgena Eisenberg for less than $500. The Eisenbergs were the owners of a home located directly north of Romain’s home, and the alleged strip of land purported to give the Eisenbergs access to Lake Alimagnet from their lot, which is legally described as Lot 15, Cobblestone Lakeview Addition. Shortly after the Eisenbergs acquired the purported strip of land, they retained John Coulter Peterson to assess the location of the purported strip. John Peterson concluded that the strip of land does not exist and that the red line was the correct northern boundary of Romain’s lot. Based on John Peterson’s work, the Eisenbergs abandoned their claim to the alleged strip of land.

Appellant Anthony Stael purchased the Eisenbergs’ home in 1998. Appellant, who lived two houses away from the Eisenbergs, had heard about the purported strip of land. Although the purchase agreement made no mention of the purported strip of land, the Eisenbergs later conveyed the strip to appellant by quitclaim deed for no cash consideration. Notably, Ronald Eisenberg, who is an attorney, included in the deed a disclaimer that he “has not examined title to the subject property.”

In 2001, appellant retained Harold Peterson to survey the purported strip of land. The results of Harold Peterson’s 2001 survey, which were consistent with his 1973 survey, again showed the green line to be the northern border of Romain’s lot. According to Harold Peterson, his survey results showed the strip of land that was purportedly owned by appellant. During his survey, Harold Peterson placed survey monuments where he thought the correct boundary line was located. However, Peterson did not investigate the fence along the “red line” during either his 1973 or 2001 surveys, but instead relied solely on current data, calculations, and global positioning in determining the property boundary.

The results of Harold Peterson’s survey created a dispute between appellant and the Romains, and both sides retained legal counsel. Shortly thereafter, in October 2001, Donald Romain passed away. A year later, appellant began clearing a path through the brush on the purported strip of land to create a pathway down to Lake Alimagnet. Appellant also installed a dock on the lake at the end of the pathway.

In November 2002, respondent brought suit against appellant for damages and an injunction, alleging that appellant’s use of the alleged strip of land constituted trespass. Appellant answered, asserting as a defense his Torrens title to the disputed strip of land, and the requirement that any claims challenging such Torrens title be brought only in proceedings under the Torrens Act. The parties thereafter agreed to a temporary injunction, setting limits on appellant’s use of the disputed strip of property pending further proceedings. The parties also agreed that respondent’s trespass action would be deferred pending adjudication of respondent’s boundary-determination petition. Respondent subsequently began this Torrens proceeding for a judicial determination of the northern boundary of her lot.

At trial, Harold Peterson was called as appellant’s expert witness. Harold Peterson testified that in his opinion, the green line was the proper northern boundary of respondent’s lot. In contrast, John Peterson, who was called as respondent’s expert witness, testified that the red line was the correct northern boundary of the lot. Respondent’s son, Donald Romain, testified about the existence of an iron stake with fencing attached to it in the ground near the shoreline of the lake and how, in caring for the lawn at his parents’ home when he was a boy, he would regularly cut the lawn up to this post, which his late father had told him was a boundary corner of their property. Respondent’s son further testified about barbed-wire fence remnants that he observed lying along the post boundary line when he was a boy.

On July 19, 2004, the district court determined that the red line was the true and correct boundary of respondent’s lot. The district court also found that even if the green line is the correct boundary, respondent obtained ownership of the land through adverse possession and practical location. Appellant subsequently moved the district court to amend the findings of fact. Although the district court amended the findings of fact and conclusions of law, the order did not substantially change the district court’s earlier decision. This appeal followed.

D E C I S I O N

Appellant argues that the district court erred in determining the northern boundary of respondent’s lot.[2] A trial court’s determination of a disputed boundary is one of fact and will be accorded the same deference as factual determinations in other cases. See Erickson v. Turnquist, 247 Minn. 529, 531-32, 77 N.W.2d 740, 742 (1956). “Thus, for instance, when two competent surveyors disagree as to where a boundary line should be, the trial court’s determination as to which surveyor is correct depends mainly on each surveyor’s credibility and will not be reversed if there is reasonable support in the evidence for such a determination.” Wojahn v. Johnson, 297 N.W.2d 298, 303 (Minn. 1980).

Appellant argues that because the survey methods used to establish the red line as the boundary line of Government Lot 2 were improper, the district court’s finding that the red line is the correct northerly boundary of respondent’s property is clearly erroneous. Appellant asserts that the Halverson and Busch resurveys of Government Lot 2 that established the red line were done incorrectly because they used fence lines and other evidence to reestablish the boundary line that was originally surveyed by a U.S. Government surveyor. Appellant contends that because the original government surveyor did not place any monuments on the boundary line, there was no original survey line to retrace, and, therefore, the correct method to be used in determining the boundary line is the double-proportional measurement system mandated by federal law.

“When a resurvey is made of sections, quarter-sections, etc., originally established by United States Government Survey, the aim of the resurvey must be to retrace and relocate the lines and corners of the original survey.” Wojahn, 297 N.W.2d at 303. Double-proportionate measurement is a standard surveying procedure when corners marking section boundaries are lost. Id. But “[i]t is proper surveying techniques not to use the proportional measurement system until all efforts at finding the location of an obliterated monument by collateral evidence have failed. In this respect a surveyor cannot totally disregard a long established and maintained boundary fence.” Id. at 304 (citations omitted); see Christensen v. Bonnema, 395 N.W.2d 440, 442 (Minn. App. 1986) (“Proper surveying techniques require that before using the proportional measurement system, all efforts at finding the location of an obliterated monument by collateral evidence must be exhausted.”).

Here, testimony indicates that in 1959, when James Halverson resurveyed Government Lot 2, there was no evidence that the government surveyor had marked or monumented the boundary line. John Peterson testified that in such a situation, it is the surveyor’s charge “to try to follow in the footsteps of the original surveyor.” The record shows that when Halverson resurveyed Government Lot 2 in preparation for the Palomino Hills Lake Shore Addition, he discovered a fence line that was indicative of the northerly boundary line. The record also shows that when Busch surveyed the land a few years later, he noted the same fence line running along the northern boundary of the lot. Moreover, the results of Busch’s survey show that he discovered an iron in the water along the same line. Although remnants of the fence line still exist, Harold Peterson testified that he determined the green line to be the correct northerly boundary of the lot based on the proportional measurement system without personally investigating if there was any collateral evidence of the correct boundary line. Thus, unlike Wojahn, where the evidence of a fence line marking the boundary line was vague, there was ample collateral evidence available here to establish the northerly boundary line without using the proportional measurement system. See 297 N.W.2d at 304 (“It is proper surveying techniques not to use the proportional measurement system until all efforts at finding the location of an obliterated monument by collateral evidence have failed.”). The district court, therefore, properly relied on collateral evidence in concluding that the red line marks the correct northerly boundary of respondent’s lot.

The district court also made extensive findings in support of the boundary determination, and the record supports these findings. As stated above, remnants of the fence line still exist, and both the Halverson and Busch surveys relied on the fence line to establish the red line as the northerly boundary of Government Lot 2. Moreover, respondent’s son testified about the existence of an iron stake with fencing attached to it in the ground near the shoreline of the lake and how, in caring for the lawn at his parents’ home when he was a boy, he would regularly cut the lawn up to this post, which his late father had told him was a boundary corner of their property. The record further reflects that John Peterson and a number of other surveyors all surveyed the lot at various times, and all placed surveyor’s monuments along the red line, concluding that the red line marks the correct boundary line. Although Harold Peterson testified that the green line is the correct boundary line, the district court did not find his testimony credible. See Wojahn, 297 N.W.2d at 303 (“[w]hen two competent surveyors disagree as to where a boundary line should be, the trial court’s determination as to which surveyor is correct depends mainly on each surveyor’s credibility and will not be reversed if there is reasonable support in the evidence for such a determination.”). We conclude, as did the district court, that “[t]here is clear, positive, and unequivocal evidence that . . . the red line is the northern boundary of [respondent’s] lot.”

Appellant also argues that the district court erred in (1) concluding that, in the alternative, respondent adversely possessed the disputed strip of land or acquired it by practical location of boundaries, and (2) refusing to accept appellant’s proposed equitable remedy. Because we conclude that the district court correctly determined the northern boundary of respondent’s lot, we need not address these issues.

Affirmed; motion denied.

[1]Exhibit 3 and Exhibit 1B show the disputed boundary lines. The boundary line asserted by respondent is illustrated by a red line, and the boundary line asserted by appellant is illustrated by a green line. Throughout trial and in the district court’s findings of fact, the two disputed boundary lines were referred to respectively as the “red line” and the “green line.” Here, in an effort to be clear and consistent, the two disputed boundary lines will continue to be referred to as the “red line” and the “green line.”

[2] Respondent moved to strike an old survey that appellant sought to use at oral argument. Because the survey was introduced for illustrative purposes only, respondent’s motion to strike is denied.