A05-2218

Wade Smith, et al.,

Appellants,

vs.

William Higgins, et al.,

Respondents.

Filed July 25, 2006

Affirmed

Worke, Judge

St. Louis County District Court

File No. 69DU-CV-05-204

Thomas A. Clure, Paul W. Wojciak, Johnson, Killen & Seiler, P.A., 230 West Superior Street, Suite 800, Duluth, MN 55802 (for appellants)

Robin C. Merritt, Kenneth A. Kimber, Hanft Fride, P.A., 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802 (for respondents)

Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, 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 boundary dispute, appellants argue that the district court (1) made findings that are not supported by the record; (2) erred in ruling that the boundary was not established by practical location; and (3) erred in ruling that appellants failed to establish ownership by adverse possession. We affirm.

D E C I S I O N

Findings of Fact

Appellants Wade Smith and Kathleen Braddy first argue that the district court erred in certain findings of fact. “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.” Minn. R. Civ. P. 52.01. In reviewing the district court’s findings, “we view the record in the light most favorable to the judgment of the district court.” Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999). The district court’s factual findings are clearly erroneous when they are “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole[,]” or we are “left with the definite and firm conviction that a mistake has been made.” Id. (citation omitted). We will not reverse the district court’s judgment merely because we view the evidence differently, and “[i]f there is reasonable evidence to support the district court’s findings, we will not disturb them.” Id.

George and Leslie Welles owned six lots of property (Lots 5-10). In 1975, when the Welleses sold Lots 9 and 10 to their son and daughter-in-law, Jon and Kathy Welles, a survey was performed to locate the boundary between Lot 8 and Lot 9. A couple of years later, Jon Welles constructed a shed for use by both properties on Lot 9 that he believed extended into Lot 8. Jon Welles did not build the shed with the intention of establishing a property line. In 2004, appellants purchased Lots 9 and 10. In late 2003, respondent William Higgins, owner of respondent Higgins Industrial Supply, Inc., purchased George and Leslie Welles’s property. Following disputes over the boundary between Lot 8 and Lot 9, respondents had a survey performed that indicated that the shed was not encroaching on Lot 8, but was actually located entirely on Lot 8.

Appellants argue that the district court clearly erred in finding that the survey obtained by the Welleses supports the proposition that they understood that the property line was the same as the survey line and evidences their intention to rely on the survey for the location of the boundary line. Appellants contend that this finding is inaccurate because the Welleses believed that the property line ran through the shed. But the district court found the testimony of Jon Welles stating that a survey was done when he purchased the property to get an idea of where the property line was located to be persuasive. Jon Welles further testified that when he built the shed, he and his father believed that the shed encroached on Lot 8. Thus, a survey was performed to determine the property line when Jon Welles purchased the property; however, when Jon Welles constructed the shed a couple of years later, he thought that he was building the shed on both properties. The fact that a recent survey shows that the shed is located entirely on Lot 8 does not mean that the district court clearly erred in finding that George and Jon Welles relied on a survey to determine the property line at the time Jon Welles purchased the property.

Appellants also argue that the district court clearly erred in determining that a January 5, 1990 letter to William and Lurene Buhrmann when they purchased Jon and Kathy Welles’s property was not intended to establish a boundary line or represent an agreement concerning the location of the boundary. The district court determined that the letter represented the parties’ intention only to acknowledge that the shed encroached on Lot 8 and that continuing to do so would be permissive. Appellants contend that the letter recognized the parties’ agreement as to the location of the property line. George Welles’s son, Sandy Welles, was the broker who prepared the letter, which stated:

This letter will serve to acknowledge and confirm our understanding concerning the shed located on the western boundary of our property and the eastern boundary of the property you have just acquired from Mr. and Mrs. Jon L. Welles. While this shed was owned by Jon and has now been conveyed to you, you understand that a portion of this structure is currently located on the westerly five feet of our property[.]

By accepting this letter you acknowledge that you make no claim to any easement or other estate in our real property, above described, and thereby quit claim any such interest to us. We, however, confirm to you that you have our permission to allow the shed to remain where it is currently located and at our sufferance. In the event we desire to have the shed moved, we will afford you at least a 30-day written notice to accomplish the same.

The district court did not clearly err in its finding because reasonable evidence supports the finding that the letter did not establish a property line, but rather created an agreement that the owner of Lot 9 would have permission to use the shed that encroached on Lot 8. William Buhrmann testified that he never thought of the letter as defining a property line and that he and George Welles never discussed the boundary. Sandy Welles provided deposition testimony that the intent of the agreement was to leave the property line as surveyed when Jon Welles built his house and that the location of the shed was not to change the property line. Sandy Welles further testified that the agreement was intended to reflect the fact that Buhrmann was not asking for the property and that George Welles never intended to give it up. The district court did not clearly err in finding that the agreement was intended to acknowledge that the shed encroached upon Lot 8 and that continuing to do so would be permissive.

Appellants also argue that the district court clearly erred in finding that the intent of the agreement was to make sure that the property line stayed the same and that the position of the shed would not change the property line. This finding is supported by Sandy Welles’s deposition testimony, but appellants contend that the district court inappropriately relied on Sandy Welles’s testimony because it was irrelevant as Sandy Welles was not a signatory to the agreement and did not have an ownership interest. But Sandy Welles drafted the agreement and had discussions with George Welles and Buhrmann who signed the agreement. Additionally, Buhrmann’s testimony that Sandy Welles initiated discussions to inform Buhrmann and to protect George and Leslie Welles’s property supports this finding. The district court did not clearly err in this finding.

Finally, appellants argue that the district court clearly erred in finding that Buhrmann never intended to claim ownership of property outside of the legal description of Lots 9 and 10 and that Buhrmann understood that the legal description of the property established ownership. Appellants suggest that the district court erred because this finding fails to acknowledge Buhrmann’s understanding that he owned the property up to the point set forth in the 1990 agreement. But this finding is supported by the record. When asked whether he ever really knew where the boundary line was located, Buhrmann testified that he just maintained what he thought was the boundary and that it was never an issue. Further, Buhrmann, through the agreement, did not claim ownership to the property that the shed encroached on and testified that he never intended to extend his property beyond what he owned by legal description. Moreover, the record does not support appellants’ assertion that Buhrmann understood that he owned the property up to the point set forth in the agreement because he testified that he never really knew where the property line existed. The district court did not clearly err in this finding.

Doctrine of Practical Location

Appellants next argue that the district court erred in ruling that the doctrine of boundary by practical location did not establish the property line. The district court’s determination of a boundary, including whether a landowner acquiesced by practical location, ordinarily is a question of fact, which this court reviews for clear error. Wojahn v. Johnson,297 N.W.2d 298, 303 (Minn. 1980). But whether the factual findings support a particular legal conclusion is a question of law subject to de novo review. Pratt Inv. Co. v. Kennedy, 636 N.W.2d 844, 848 (Minn. App. 2001).

A boundary by practical location may be established in one of three ways: (1) by acquiescence for a sufficient length of time to bar a right of entry under the statute of limitations; (2) by an express agreement of the parties claiming the land on both sides of the line and then by acquiescence; or (3) by estoppel. Theros v. Phillips, 256 N.W.2d 852, 858 (Minn. 1977). The evidence establishing a boundary by practical location must be “clear, positive, and unequivocal.” Gifford v. Vore, 245 Minn. 432, 436, 72 N.W.2d 625, 628 (1955).

Appellants first argue that the boundary line had been established by an express agreement. Appellants contend that the 1990 letter is an express agreement. But the letter does not establish a boundary line because the letter only intended to provide the owner of Lot 9 permission to retain a shed that was believed to be encroaching on Lot 8. Appellants next argue that the boundary line had been established by acquiescence. Acquiescence requires actual or implied consent to some action by the disseisor, such as construction of a boundary or other use of the disputed property and acknowledgement of that boundary for an extended period of time. Engquist v. Wirtjes,243 Minn. 502, 507-08, 68 N.W.2d 412, 417 (1955); see also Fishman v. Nielsen,237 Minn. 1, 7-8, 53 N.W.2d 553, 556-57 (1952) (finding practical boundary by acquiescence when two predecessors in title agreed on a line, built a fence on the line, and acquiesced in the line for at least 18 years). When determining a boundary by practical location by acquiescence, no inferences or presumptions are made in favor of the disseisor, but rather, all inferences are made against the disseisor. Phillips v. Blowers, 281 Minn. 267, 269-70, 161 N.W.2d 524, 527 (1968).

Here, there has been no acquiescence. First, when Jon Welles constructed the shed to serve both properties, he believed that it straddled the boundary line. There was no acquiescence because Jon and Kathy Welles never intended to claim ownership. Second, when the Buhrmanns purchased Lots 9 and 10, they signed an agreement acknowledging that they had permission to use the shed encroaching on Lot 8. And William Buhrmann testified that he did not do anything to extend his legally described property. In 2002, the Buhrmanns sold Lots 9 and 10, and appellants purchased the property in April 2004; not enough time has passed to establish a boundary by practical location. Moreover, there is confusion, historically, regarding the property line. A simple mistake regarding a boundary line does not create a case for the doctrine of boundary by practical location. See Roy v. Dannehr, 124 Minn. 233, 237-38, 144 N.W. 758, 760 (1914) (stating that “one is not to be deprived of his land because he through mistake or ignorance placed a fence on what he thought was the division line, when it was not such in fact, unless the evidence of practical location, or acquiescence for at least 15 years, is clear, positive, and unequivocal”).

Adverse Possession

Finally, appellants argue that the district court erred in determining that they failed to establish ownership by adverse possession. Whether the elements of adverse possession have been established is a question of fact. Wortman v. Siedow,173 Minn. 145, 148, 216 N.W. 782, 783 (1927). To establish adverse possession, the disseisor must show, by clear and convincing evidence, that the property was used in an actual, open, continuous, exclusive, and hostile manner for at least 15 years. See Minn. Stat. § 541.02 (2004) (stating that an adverse-possession claim cannot be made until after 15 years of possession); Rogers,603 N.W.2d at 657 (stating the necessary elements for adverse possession); Ehle v. Prosser,293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972) (establishing the clear-and-convincing-evidence standard). The disseisor’s actions must give “unequivocal notice to the true owner that some one is in possession in hostility to his title.” Skala v. Lindbeck,171 Minn. 410, 413, 214 N.W. 271, 272 (1927).

Here, the district court concluded that the hostility element for the period required was absent. Hostility is related to the disseisor’s entry on the land, possession of the land as if it were his or her own, and the exclusion of others from the land. Ebenhoh v. Hodgman, 642 N.W.2d 104, 110 (Minn. App. 2002). “The possession of successive occupants, if there is privity between them, may be tacked to make adverse possession for the requisite period.” Fredericksen v. Henke,167 Minn. 356, 360, 209 N.W. 257, 259 (1926). “[I]t is sufficient if visible and notorious acts of ownership have been continuously exercised over the land for the time limited by the statute.” Young v. Grieb,95 Minn. 396, 397, 104 N.W. 131, 131 (1905). Appellants have not shown that they have used the land as their own for the required period. The Buhrmanns signed an agreement that gave them permission to use the encroachment; thus, the owners of Lot 8 were never excluded. The district court did not err in concluding that appellants failed to satisfy the hostility requirement for adverse possession.

Affirmed.