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STATE OF MINNESOTA IN COURT OF APPEALS A08-303 Eric J. Slindee, et al., Appellants, vs. Fritch Investments, LLC; and also all unknown persons claiming any right, title, estate, interest, or lien in the real estate described in the complaint herein, defendant and third party plaintiff, Respondent, vs. Landecker & Associates, Inc., third party defendant, Respondent. Filed February 17, 2009 Reversed and remanded Ross, Judge Cass County District Court File No. 11-C6-05-000322 Mark E. Greene, Sarah L. Krans, Bernick, Lifson, Greenstein, Greene & Liszt, P.A., The Colonnade, Suite 1200, 5500 Wayzata Boulevard, Minneapolis, MN 55416 (for appellants) Stephen F. Rufer, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., 110 North Mill Street, P.O. Box 866, Fergus Falls, MN 56538-0866, and Thomas A. Gedde, 28459 Balmoral Drive, Battle Lake, MN 56515 (for respondent Fritch Investments, LLC) Eric R. Heiberg, John A. Markert, Coleman Hull & Van Vliet, 8500 Normandale Boulevard, Suite 2110, Minneapolis, MN 55437 (for respondent Landecker & Associates, Inc.)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Bjorkman, Judge. SYLLABUS A boundary by practical location based on express agreement requires words or acts by the parties definitely and clearly agreeing to a specific boundary. OPINION ROSS, Judge This case involves a boundary dispute between adjacent Cass County landowners, Eric and Jerilyn Slindee and Fritch Investments, LLC. This appeal requires us to decide whether the district court correctly designated a boundary by practical location through express agreement based on a mow line on the Slindee property when neither the owners nor their predecessors in interest actually discussed the location of the boundary. We must also decide whether the district court erred when it awarded the Slindees a prescriptive easement, refused to determine trespass damages, and failed to dismiss Fritch's reformation-by-deed claim. Because we hold that a disseizor's tacit

understanding and assumptions about the boundary cannot support a finding of a boundary by practical location through express agreement, we reverse the district court's relocation of the disputed boundary. We therefore also reverse its prescriptive easement and trespass decisions. We remand the case to the district court to complete the Slindees' quiet title action, to determine whether to award trespass damages, and to address the Slindees' motion to dismiss Fritch's reformation-by-deed claim.

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FACTS This boundary dispute begins with relocation of a different boundary 40 years ago. The three relevant parcels as currently divided are each bordered by Mule Lake on the south and extend to Highway 84 on the north. The difficulty began before 1969, when Walter and Eva Bryant owned a parcel that abutted Gilbert and Florence Norman's parcel. The Bryants owned the parcel originally described as government lot eight, and the Normans owned the parcel to the immediate west described as government lot seven, both demarked on the original recorded plat. Based on the plat, a straight north-south line between government lots seven and eight separated the Bryants' and the Normans' parcels. In 1969, the Bryants and the Normans entered into an agreement that relocated that boundary westward. The 1969 agreement left the Bryants with a western boundary that was 98 feet further west along the shore than the boundary as depicted on the plat. In other words, the agreement gave the Bryants 98 feet of additional shoreline. They recorded the agreement at the county recorder's office but failed to exchange a quit claim deed to perfect a conveyance. Walter Bryant divided his lot in 1971 and conveyed its western portion to his son, Ted. Walter Bryant kept the remaining parcel until 1978 when he sold it to Ronald and Ingrid Zimmerman, who operated a resort on it. The record does not contain the deed from Bryant to the Zimmermans. Essential to our discussion, each time the western portion of the original Bryant property was conveyed in three successive sales (from Ted Bryant to Robert Orth, then to Dean de Neui and Donna Hicok, and finally to Eric and 3

Jerilyn Slindee), the abstract described the conveyed parcel with a western border of the West boundary line of said Lot 8, and the eastern border as lying 200 feet east of that specific line and running north and south, parallel to it. During Ted Bryant's ownership, his family frequently used a path through the woods on the parcel's eastern side to reach the lake. This path extended toward the parcel's eastern border but remained entirely on Ted Bryant's parcel if its eastern boundary is 200 feet east of the boundary that had divided government lots seven and eight, as described in the abstract. The Zimmermans, who owned the parcel to the east, knew that the Bryants used the path. Ted Bryant sold his parcel in 1980 to Robert Orth, who used the same path. Robert Orth also maintained a mowed lawn around the parcel's only residence. The lawn and residence occupied less than half of the parcel. The mow line east of the house was irregular. It extended south to a bluff and southeast to the path and the wooded area, curving with the topography. The northern end of that mow line bent to the northwest. Robert Orth sold his parcel to Donna Hicok and Dean de Neui in 1993. Hicok and de Neui knew of the 1969 boundary agreement establishing the parcel's western boundary, and they built a fence on that boundary. They mowed the same area and kept the same eastern mow line that Robert Orth had maintained. They infrequently used the path from their lawn to the lake. The Slindees bought the parcel from Hicok and de Neui in 2000 after the Slindees inspected it three times. Like the prior warranty deeds, their warranty deed's abstract described the parcel as [t]he [w]esterly 200 feet of government lot eight with no 4

mention of the 1969 boundary agreement that extended the parcel's western boundary 98 feet west of the platted boundary between government lots seven and eight, into government lot seven. The eastern portion of the lot that Walter Bryant had divided in 1971 remained in the Zimmermans' hands throughout all conveyances of the western portion. But the Zimmermans sought to sell their parcel in 2002, and Chris Fritch of Fritch Investments was interested. Fritch toured the parcel. He noticed the lawn-to-lake path through the woods that had been used by the Bryants, Orths, and, to a limited degree, Hicok and de Neui. Fritch submitted a purchase agreement contingent on a survey. But he removed the contingency before closing despite being aware of the path, which was on the Slindees' property only if the eastern boundary was measured as being 200 feet east of the platted boundary between government lots seven and eight. After the closing,

Landecker and Associates conducted a survey, but it determined the Slindees' eastern boundary by measuring eastward 200 feet from the boundary as relocated in 1969 rather than from the platted line dividing government lots seven and eight. As a result, Fritch was told that he had purchased 640 feet of shoreline. The shoreline length was important to Fritch because he intended to develop and subdivide the property, and the county imposed a 150-foot minimum width requirement for each lot. The county rejected Fritch's plat submission because the submission relied on the 1969 boundary agreement, not the platted government lot line, as the point from which to begin measuring eastward to mark the eastern boundary of the Slindee parcel. Fritch asked the Slindees to provide a quit claim deed to the disputed area, but they 5

refused. Fritch would have to reduce the number of lots in his development plan unless he could include the disputed land along the Slindee-Fritch boundary. So despite

knowing of the Slindees' competing claim to the land along the Slindee-Fritch boundary, Fritch removed small trees and shrubs from the area. The Slindees sued Fritch to quiet title and to obtain trespass damages, along with treble damages for the destroyed trees. Fritch brought a counterclaim seeking a judgment to reform the deed to the Slindee lot. The parties tried the case in the district court, which concluded that Fritch owned the disputed area based on boundary by practical location through express agreement and denied the Slindees any trespass damages. The district court sua sponte awarded the Slindees a prescriptive easement to continue to use the path from their lawn to the lake. The district court did not decide Fritch's claim for

reformation by deed because it deemed the boundary-by-practical-location decision to be dispositive. The Slindees appeal. ISSUES I. Did the district court properly designate a boundary by practical location through express agreement based on tacit acceptance of a mow line by the parties' predecessors in interest? Did the district court err by failing to dismiss Fritch's reformation-of-deed claim when the originally conveying parties to the deed were not joined? Did the district court properly deny the Slindees damages for trespass? Did the district court properly award the Slindees a prescriptive easement to use the path from their lawn to the lake?

II.

III. IV.

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ANALYSIS I The Slindees challenge the district court's designation of a boundary by practical location through express agreement. They argue that neither they nor the predecessors in interest to the two parcels reached an express agreement to establish the mow line as the boundary line and that the mow line is too irregular and imprecise to constitute a boundary. The challenge is well founded. Boundary by practical location, like adverse possession, transfers title between deed holders. Gabler v. Fedoruk, 756 N.W.2d. 725, 728

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