All was not "OK at the corral" in Minnesota

And a good read it was too! I couldn't help noticing the appellants Law firm had the name Lucas in it. Ironic.

From the decision:
The doctrine of boundary by practical location automatically transfers title between neighboring landowners when the landowner seeking title (the disseisor) can prove one of three circumstances: (1) that the party against whom a claim of title is made (the disseisee) acquiesced in a practical boundary for a statutory limitations period; (2) that the disseisee (or his predecessor in interest) expressly agreed to a boundary line, and all interested parties then acquiesced in that boundary for a "considerable time"; or (3) by estoppel, arising, for example, if the disseisee, with knowledge of the true boundary line, silently looks on, letting the disseisor spend time and money that he would not have spent had he known the line was in dispute. Theros v. Phillips, 256 N.W.2d 852, 858 (Minn. 1977); Beardsley v. Crane, 52 Minn. 537, 545-46, 54 N.W. 740, 742 (1893). Under any of these circumstances, the disseisor must present clear and convincing evidence that establishes the practical boundary clearly, positively, and unequivocally. Phillips v. Blowers, 281 Minn. 267, 274, 161 N.W.2d 524, 529 (1968); Slindee v. Fritch Investments, LLC, 760 N.W.2d 903, 907 (Minn. App. 2009).

The bold type is my emphasis proving that boundary location is a title matter.

Richard Schaut

Yeah, I took note of Richards highlighted sentence from the case. All states are a little different and I don't know anything about Minnesota.

It would seem to me that the court is a bit off course here or maybe this state is out of step from the mainstream. To me there should not be any automatic transfer of title as it violates the Statute of Frauds which would require a written conveyance. Seems they got practical location mixed up with adverse possession instead of the boundary agreement doctrines. I would put practical location in with the uncertain boundary agreements where there is no transfer of title per say but rather just a fixation of the true line.

Maybe someone more familiar with Minnesota law could explain this automatic transfer of title concept. It's a rare thing for me to see such language in a boundary line case.

THAT was a great read. Thanks for posting.

I noticed this in the case,

“After a four-day trial at which the Riepes appeared pro se, the district court found for Frederickson and Weisman on all of their claims except the claim for treble damages and the claim for punitive damages for trespass, and denied all of the Riepes' counterclaims.”

Which led me to this, (warning bad language for some)

http://www.perkel.com/pbl/prose.htm

Have a great week!

If this is not clarified by the MN Supreme Court, it will change the definition of Boundary by Practical Location from a a boundary establishment doctrine, as the name clearly implies, to one of unwritten conveyance little different from AP. fortunately, that definition will only change for MN and not for other states unless their courts choose to adopt the definition in this ruling.

I'll have to read this one thoroughly to see which doctrine was actually applied by the court (PL or AP) and whether it is their identification of the doctrine or their explanation which is out of step with the majority of common law.

Richard, I agree with you that boundaries are title issues. Boundaries are the physical manifestation of the limits of the title one owns in real property. Unless there has been an unwritten transfer of some kind, which would have to be recognized by the court as a valid adverse claim to be perfected, the boundaries will reflect written title.

In the case of PL, it may appear that the physical boundaries are not a reflection of written title because of conflicting elements either within the writing, or between the dimensions in the writing and the actual establishment made and/or accepted by the parties on the ground, but it actually is still a reflection of that written title. A boundary by PL is simply the physical manifestation of that writing as interpreted by the parties to the conveyance. Where a valid establishment has been made as a Practical Location by the parties to the conveyance, it may render certain terms in the deed, particularly dimensions or quantities, inaccurate according to a later more careful measure.

A practical location cannot be made which is clearly contrary to terms of the deed not open to interpretation. I.E. the deed calls the boundary to be along the east side of an existing farm lane, but one or both parties build a fence on the west side. That is not a valid practical location, although given additional circumstances over time, it may result in an unwritten conveyance by AP.

Found It - In MN, Practical Location IS AP!

In Phillips v Blowers, 161 N.W.2d 524 ([August] 1968), the MN Supreme Court placed AP under the umbrella of Practical Location, along with the doctrines of estoppel and agreement so that one can claim a boundary as the true boundary per practical location by adverse possession (like mixing fine scotch with cheap tequila), or practical location by one of the other two doctrines. So they effectively expanded the definition of Practical Location.

In Theros v Phillips, 256 N.W.2d 852 (1977), the MN Supreme Court apparently made an attempt to better define Practical Location and perhaps differentiate it from other establishment and unwritten conveyance documents, but apparently lost interest in that quest after some research on the subject, to wit:

"Minn.St. 559.23 provides for judicial action to establish a boundary line between adjoining lands. The statute itself provides for the action, but does not specify its underlying theories. The generic term "practical location" is used to describe this type of action. Despite extensive litigation in almost all jurisdictions, courts and commentators do not agree on the theory of practical location, i. e., its nature, scope, and requisite elements. Note, 37 Minn.L.Rev. 382 (1953). The theories of judicial determination of a boundary line underlying plaintiffs' case have not been made completely clear.7 The trial court treated plaintiffs' claims as ones of adverse possession, acquiescence, agreement, and estoppel. Plaintiffs deny any reliance on adverse possession which is a doctrine different from practical location, so we need not consider that theory."

They then reiterated the 3 doctrines placed under the PL umbrella previously stated in Phillips v Blowers, and then went on to further equate PL with AP with this statement:

"Because the effect of a practical location is to divest one party of property that is clearly and concededly his by deed, the evidence establishing the practical location must be clear, positive, and unequivocal."

Although in Amato v Haraden, 159 N.W.2d 907 ([June] 1968), the same court that heard Phillips v Blowers and placed AP under the PL umbrella, here considered the two doctrines as completely separate doctrines, addressing the applicability of each to the subject case. The Phillips v Blowers opinion was written by Justice Peterson, and this opinion was written by Justice Murphy, who appeared to have a better grasp of the differences between the doctrines.

Murphy gives a really good explanation of PL in this case:

"It may be stated at the outset that boundary line agreements when fairly made are favored by the law. Where adjoining landowners occupy their respective premises up to a certain line which they mutually recognize and acquiesce in for a long period of time, usually the time prescribed by the statute of limitations, the general rule is that they are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one. The authorities upon which plaintiff relies are a long line of cases beginning with Beardsley v. Crane, 52 Minn. 537, 54 N.W. 740, and continuing down to the more recent cases of Fishman v. Nielsen, 237 Minn. 1, 53 N.W.2d 553; Bjerketvedt v. Jacobson, 232 Minn. 152, 44 N.W.2d 775; and Aldrich v. Wilson, 265 Minn. 150, 120 N.W.2d 849. The thrust of these authorities, as applied to the issues presented and the theory upon which the case was tried, is that practical location of a boundary line can be established in one of three ways only: (1) the location relied upon must have been acquiesced in for a sufficient length of time to bar right of entry under the statute of limitations; (2) the line must have been expressly agreed upon by the interested parties and afterwards acquiesced in; (3) the party whose rights are to be barred must, with knowledge of the true line, have silently looked on while the other party encroached thereon and subjected himself to expense which he would not have incurred had the line been in dispute."

But, by the underlined portion of the preceding excerpt, one who does not grasp the difference between establishing and agreeing to a line by reasonable interpretation of the written title, and later claiming to a line which was established contrary or without regard to written title may grasp at the "time to bar entry under the statute of limitations" and mistakenly equate PL to AP because of that well known time element of AP.

In previous rulings, the MN Supreme Court seemed to better recognize the disctinction. See:

Fishman v Nielsen, 237 Minn. 1 (1952), where the court demonstrated a clear understanding of the difference when it upheld the lower court while at the same time correcting its reasoning:

"The trial court found also that defendant had acquired the premises in dispute by adverse possession, as well as by practical location of the boundary. We cannot agree that all the necessary conditions to establish boundary by adverse possession are present in the case at bar. There are five essentials of adverse possession. It must be hostile, actual, open, continuous, and exclusive. Village of Newport v. Taylor, 225 Minn. 299, and note 2, 30 N.W.2d 588, and note 1. Since, however, it is our opinion that the record sustains a finding that the west fence clearly established a practical boundary, which was acquiesced in for more than 20 years, we deem it unnecessary to decide the case on other grounds."

So there is sufficient grounds within the past MN Supreme Court rulings for the current court to either further solidify the errant equating of PL and AP, or to go back and clarify the basic differences between the doctrines.

Found It - In MN, Practical Location IS AP!

The 'flaw' in the courts reasoning is the reliance on the deed, i.e.
"Because the effect of a practical location is to divest one party of property that is clearly and concededly his by deed, the evidence establishing the practical location must be clear, positive, and unequivocal."

Here in the US, the deed does not convey title, it merely identifies the entity who has standing to establish title to a parcel of land. 'Establish' means active occupation and control of a parcel of land whose physical boundary is clearly defined by physical evidence or agreement by the parties involved.

Check out Black's definition of Alienation:
Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.

Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.

Documents are rarely involved in; 'passing realty by the act of the party, as distinguished from passing it by the operation of law.

Richard Schaut

Found It - In MN, Practical Location IS AP!

Excellent post, Evan!!!! Very impressed with your grasp on the doctrine differences and your analysis of the vacillation by the various justices over the years.

I've seen similar misapplications of the doctrine in other states as well. In my estimation, the confusion seems to arise most often in those states which look at "practical location" as an umbrella doctrine comprised of the three individual doctrines of "parol agreement," "implied agreement (acquiescence)," and "equitable estoppel." The courts will often lump their discussion by using the term "practical location" to include all of the doctrines and loose focus on the individual requirements of each. Those jurisdictions which lump "adverse possession" in with the establishment doctrines have an even more difficult time distinguishing the "boundary location" from the "title."

There will usually be a "landmark" decision every few decades that will restate the individual doctrines and the specific requirements for each. We just had one come down on April 1 of this year (Bahr vs. Imus, 250 P.3d 56, 2011 UT 19). The Utah court clearly eradicates the idea that a title transfer occurs by any of the establishment doctrines.

Thanks for the post.

JBS

States have the authority to make their own laws on this stuff. I disagree with using practical location in this way, but that's the way they like it apparently. I think some responders are missing the point.

It's clear that the boundary was easily determined by survey in this case. For whatever reason, the parties decided not to pay the surveyor to mark the line for purposes of placing the fence. In many jurisdictions a practical location would not be a viable claim because of the lack of a bona fide uncertainty.

Therefore, under MN law, practical location (as applied in this case) is actually an exception to their version of the statute of frauds. It is basically confirming an oral transfer of title (in this case, ie, "express agreement") rather than settling an uncertain boundary.

There aint a Doctrine that can't be rode, nor an attorney that can't be throwed.

> Therefore, under MN law, practical location (as applied in this case) is actually an exception to their version of the statute of frauds. It is basically confirming an oral transfer of title (in this case, ie, "express agreement") rather than settling an uncertain boundary.
>
The existence of established physical evidence constitutes 'part performance' that eliminates any statute of fraud consideration and confirms the existence of a contract.

The statute of frauds here in the US deals only with oral agreements where no physical evidence of a boundary exists.

Richard Schaut

You're mixing your doctrines with your equities. In the case at hand the fence was part of the convincing evidence that an oral contract was expressly consumated.

Part performance, if substantial, will save an otherwise broken contract. Such as a rent to buy contract where a payment is missed, the contract specifically says that is a breach subject to termination, but the payment period has substantially been completed. The court would allow the rent to owner to cure the breach by late payment rather than being evicted per the contract, if most of the payments had already taken place.

As always, I could be wrong.

> You're mixing your doctrines with your equities. In the case at hand the fence was part of the convincing evidence that an oral contract was expressly consumated.
>

I'm not 'mixing' anything, the unwritten rights are supported by the established physical evidence of part porformance between the owners to establish their common boundary and the testimony supported the common agreement clincher.

That is the 'modification' of the statute of frauds as applied here in the US; such 'modification' is implied in my quote of Cooleys caution:
All history teaches us that different peoples, or even the same people in different stages of advancement, are not to be governed by the like modes and forms; and while we all concede this as a general rule, we are too apt, perhaps, when we compare with our own the system which prevails in the country from which we have mainly derived our ideas of government and law, to forget that we erected our structure on foundation ideas of democracy which never pervaded in the governing classes in Great Britian, and that the aristocratic sentiment, which is there controlling, is here, in a political point of view, insignificant.

Richard Schaut

ON the contrary, what you seem to be suggesting is purely English in nature.

If the fence is considered partial performance of a contract to build a complete fence to establish a line without a writing, then you are arguing for feoffment with livery of seisen. That's the old English feudal system. Apparently there are not enough Lords in MN to oversee the process and make sure it gets completed.

Quick, somebody beat a kid around at those fence posts before it gets lost.

Allodial land is not governed by feudal law.

You need to study my Cooley quote above with the guidance of some 5th grader who is getting a 'C' in English.

Richard Schaut

I donate all my allodial land to local playground. You should see the 3rd graders develop the feudal law in it. Most of the Lords stand around watching and drinking Cooley's.

I was paddling just off your allodial lands, in the pond, that is, and I have to say

you quack me up, DF

Don