Preview:

COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                       This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
March 26, 2013
A party may file with the Supreme Court a
Diane M. Fremgen                                                                                                                                     petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                            Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                     and RULE 809.62.
                                                                                                                                                     Cir. Ct. No.   2010CV197
Appeal No.                                                                            2012AP1322
STATE OF WISCONSIN                                                                                                                                   IN COURT OF APPEALS
DISTRICT III
DAVID A. SMITH AND CYNTHIA SMITH,
PLAINTIFFS-RESPONDENTS,
V.
FRANK A. DONALDSON, III AND DEBORAH S. DONALDSON,
DEFENDANTS-APPELLANTS.
APPEAL from a judgment of the circuit court for Sawyer County:
GERALD L. WRIGHT, Judge.   Reversed.
Before  Hoover,  P.J.,  Mangerson,  J.,  and  Thomas  Cane,  Reserve
Judge.
¶1                                                                                    PER CURIAM.    Frank   Donaldson   and   Deborah   Donaldson
(collectively, Donaldson) appeal a judgment establishing the southern boundary
line of their property at two iron posts, located approximately sixty feet north of




No.   2012AP1322
the government lot line.   Donaldson argues that, because the court found the actual
location of the government lot line, his deed was rendered unambiguous and the
southern boundary of his property extends to the government lot line.   He contends
the court erred by relying on evidence of common usage and acquiescence instead
of his deed when determining his property boundary.   Donaldson also asserts that,
in any event, there was insufficient evidence of common usage and acquiescence
because the land in dispute was undeveloped and unused.
¶2                                                                                      We conclude the circuit court’s determination of the government lot
line rendered the parties’ deeds unambiguous and, by deed, the property boundary
is the government lot line.    We also conclude that the circuit court erred by
concluding David Smith and Cynthia Smith (collectively, Smith) had gained title
to the disputed parcel based on evidence of common usage and acquiescence.   We
therefore reverse the circuit court’s judgment.
BACKGROUND
¶3                                                                                      Donaldson  owns  a  parcel  of  land  in  Government  Lot  3  that  is
adjacent to and north of a parcel of land in Government Lot 4 owned by Smith.
The southern boundary of Government Lot 3 is the same as the northern boundary
of Government Lot  4, except that the western boundary of Government Lot  4
extends an additional one-fourth mile beyond that of Government Lot 3.   As a
result,  the  northern  boundary  of  Government  Lot  4  also  shares  the  southern
2




No.   2012AP1322
boundary of the quarter-quarter section immediately west of Government Lot 3.
To the east of Government Lots 3 and 4 lies Grindstone Lake.1
¶4                                                                                                 The lots were originally surveyed in 1856, and, in 1926, surveyor
Otto Gobler found and restored various corners in Section 23, which contains both
government lots.   In June 1958, surveyor Edward Gobler surveyed Government
Lot 3, divided it into parcels, and presumably placed the two iron pipes depicted in
his survey along the southern boundary of Government Lot  3.    In July  1959,
Donaldson’s predecessors in title purchased the southern parcel of Government
Lot  3  from  Scipio  and  Bernice  Wise,  and  their  warranty  deed  described  the
southern boundary of the parcel as occurring at the government lot line.   The deed
made no reference to E. Gobler’s 1958 survey or any iron pipes.
¶5                                                                                                 In May 1967, Smith’s predecessors in title purchased the northern
parcel of Government Lot 4 from James and Joan Hunt, and their warranty deed
described the northern boundary of the parcel as occurring at the government lot
line.   In June  1967, Fred Aliesch completed a survey of the northern parcel of
Government Lot 4.   His survey incorporated what appeared to be E. Gobler’s iron
pipes, and it marked the northern boundary of Government Lot 4 at the iron pipes.
However, when Aliesch described the parcel, he used the same description as used
in Smith’s predecessors’ warranty deed, and thus made no reference to the pipes or
E. Gobler’s survey and placed the northern boundary at the government lot line.
1  For visual purposes, we have attached trial exhibit 1, which depicts Government Lots 3
and 4 in the original 1856 survey.   During trial, Sawyer County surveyor Daniel Pleoger circled
the disputed area in this case.
3




No.   2012AP1322
¶6                                                                                           Smith purchased the northern parcel of Government Lot 4 in 1988
by warranty deed.2    Similar to his predecessors in title, the description of the
parcel in Smith’s deed established the northern boundary at the government lot
line and made no reference to Aliesch’s survey or the iron pipes.   However, Smith
testified  that when  he  purchased  the  property he  believed the  two iron pipes
marked the northern boundary of Government Lot 4.
¶7                                                                                           In 2001, Donaldson purchased the southern parcel of Government
Lot 3 by warranty deed.   Unlike the deed of his immediate predecessors in title,
Donaldson’s deed described the southern parcel of Government Lot 3 by reference
to a certified survey map.    The certified survey map had been completed six
months earlier, and it marked the southern boundary of Government Lot  3 as
coinciding with E. Gobler’s iron pipes.3
¶8                                                                                           Smith later purchased the parcel of property located in the quarter-
quarter section immediately north of Government Lot 4 and west of Government
Lot 3.   Upon his purchase, he realized there was an issue regarding the northern
boundary  of  Government  Lot                                                                4—specifically,  the  northern  boundary  of
Government Lot 4 was supposed to be the same as the southern boundary of his
new parcel; however, the quarter-quarter section’s certified survey map placed the
southern boundary of the new parcel approximately sixty feet south of what Smith
believed was the north boundary of Government Lot 4.
2  Smith asserts he purchased the parcel in 1978.   The circuit court determined Smith
purchased the parcel in 1988.  The year of purchase has no bearing on our determination.
3  After  the  lawsuit  commenced,  Donaldson’s  predecessors  in  title  conveyed  to
Donaldson the parcel in Government Lot 3 as described in their deed, which established the
southern boundary of Government Lot 3 as occurring at the government lot line.
4




No.   2012AP1322
¶9                                                                                      Smith hired surveyor Jesse Suzan.   Suzan surveyed the properties
and  opined  the  problem was  E.  Gobler’s  iron  pipes—specifically Gobler  had
placed the iron pipes approximately sixty feet north of the true boundary line
between Government Lots 3 and 4.   Smith subsequently sued Donaldson, seeking
a declaration that the boundary line between Smith’s and Donaldson’s parcels
occurred at the iron pipes and Smith owned the land south of the pipes.
¶10    Following a one-day trial, the circuit court first found the original
monuments for the northern boundary line of Government Lot 4 had been lost, but
they were reset by surveyor Fred Zeitlow in 2004 in reliance on Otto Gobler’s
1926 survey.   It concluded that the true boundary line between Governments Lots
3 and 4 was sixty feet south of E. Gobler’s iron pipes.
¶11    However,  relying  on  Northrup  v.  Opperman,  2011  WI  5,  331
Wis. 2d  287,  795 N.W.2d  719, the circuit court reasoned that, although it had
determined the actual location of the boundary line between Government Lots 3
and  4, it could  not  determine  the  parties’  property lines because  it was  “not
possible to determine the boundary line solely from the deeds and the original
monuments.”   Following Northrup, the court reasoned that it needed to look “to
evidence of common usage and acquiescence” to determine whether the boundary
between  the  parties’  property  was  located  at  the  government  lot  line  as
reestablished or at Gobler’s pipes.
¶12    The  court  placed  the  property  boundary  at  Gobler’s  pipes.    It
reasoned that, although the land between the government lot line and Gobler’s
pipes was wooded, undeveloped, and unused, title to that property should go to
Smith because:   post-1958 surveys relied on and incorporated the iron pipes; the
parties believed that the pipes marked the boundary line when they purchased their
5




No.   2012AP1322
respective parcels; and “every transaction concerning property in Government Lot
3 was based upon the  1958 E. Gobler survey, and people have been using the
pipes he set as landmarks.”   The court therefore conveyed the land south of the
iron pipes to Smith.
DISCUSSION
¶13    Donaldson argues the circuit court erred by applying Northrup to
this case.   He asserts the circuit court’s determination of the actual lot line between
Government Lots 3 and 4 rendered the parties’ deeds unambiguous and therefore
the circuit court did not need to resort to extrinsic evidence to determine the
property  boundary.    He  also  argues  that,  although  the  Northrup  court  used
“evidence of common usage and acquiescence” to establish the property boundary
in that case, the evidence of common usage and acquiescence in this case was
insufficient to establish the property boundary at the iron pipes.
¶14    Northrup involved a property boundary dispute between landowners
who owned adjacent parcels located in Sections 8 and 9, respectively.   Northrup,
331 Wis. 2d 287, ¶2.   After a trial, the circuit court made various findings about its
inability to make a determination on the location of the actual boundary line
between the sections.    Id.,  ¶19.    The court then reasoned that,  “although the
descriptions in the deeds are unambiguous on their face, the real estate cannot be
located on the ground” because “the corner of Sections 4,[] 5, 8, and 9 cannot be
located.”   Id., ¶22.   As a result, the circuit court looked to extrinsic evidence to
determine the boundary line.   Id., ¶23.   It reasoned the best available evidence of
the boundary line was “the lines of occupation and possession.”   Id.   It concluded
the boundary line between the parcels was a road because the parties and their
6




No.   2012AP1322
predecessors in title had used and possessed the property for almost a century as
though the road marked the boundary line.   Id.
¶15    Our supreme court concluded the circuit court properly relied on
“evidence of common usage and acquiescence of ownership and possession” to
establish the boundary line at the road.   Id., ¶¶1, 56.   It stated that, if a circuit court
concludes the actual boundary line cannot be determined  “from the deed and
original monuments or markers[,] … the circuit court looks to the best evidence of
the boundary line.”   Id., ¶42.   The Northrup court concluded that after the circuit
court made  its findings that the  original section corner  no longer  existed, no
competent evidence was presented showing where the original section corner was
placed, no clear and convincing evidence showed that the restored 1912 corner
was correct, and no clear and convincing evidence existed showing the location of
the actual section line, the circuit court properly focused on the best available
evidence to establish the boundary line.   Id., ¶¶50, 52.
¶16    The Northrup court concluded the best evidence of the boundary
line was, as the circuit court found, “the long occupation of the properties by the
parties to the present case, their neighbors and their predecessors in title.”   Id.,
¶52.   Specifically, the court noted the road had been honored as the boundary line
for  more  than  a  century  and  there  was  “long-time  undisturbed  possession  of
property based upon the [road] as the boundary line.”   Id., ¶¶52-54.
¶17    Although the circuit court in this case relied on Northrup when
making its boundary determination, Northrup differs from the present situation in
two significant ways.   First, in Northrup, the court observed that there was no
clear and convincing evidence showing the actual location of the section line.   Id.,
¶23.   Conversely, the circuit court in this case found the actual location of the lot
7




No.   2012AP1322
line between Government Lots  3 and  4.   On appeal, neither party disputes the
court’s determination of the government lot line’s location.
¶18    Second, in Northrup, the court reasoned that, although the parties’
deeds were unambiguous on their face, it could not determine the location of the
parties’ real estate because the court did not know the location of the section line.
Id., ¶22.   However, in this case, the court’s determination of the location of the
government lot line allowed the court to locate the real estate on the ground.   The
parties’  deeds  unambiguously provide  that  Smith  owns  the  land  south  of  the
government  lot  line  and  Donaldson  owns  the  land  north  of  the  line.    The
established location of the government lot line placed the disputed parcel of land
in Government Lot 3, which means that by deed Donaldson—not Smith—owns
the disputed parcel.
¶19    Smith,  however,  intimates  that  we  must  ignore  the  court’s
determination of the government lot line because Northup states that a circuit
court  should  look  to  extrinsic  evidence  if  the  true  boundary  line  cannot  be
determined  “from the deed and original markers.”    Id.,  ¶42.    He asserts that,
because no original markers exist to establish the line, and because the parties’
deeds cannot be located on the ground without knowledge of the government lot
line, the circuit court needed to rely on extrinsic evidence.    Smith’s argument
places form over substance.   In Northup, the court never knew the location of the
government section line and therefore relied on extrinsic evidence.   See id., ¶19.
However, here, the circuit court found the location of the government lot line,
which both Donaldson and Smith agree is correct.   Because the parties’ property
8




No.   2012AP1322
interests can be determined from their deeds and the established government lot
line, the circuit court did not need to resort to extrinsic evidence.4
¶20    We  recognize  that  a  boundary  line  may  be  different  from  that
described  in  a  deed  under  certain  legal theories such as  “adverse  possession,
prescription, agreement, practical location, acquiescence or estoppel.”   Northrup,
331 Wis. 2d 287, ¶27 n.10 (quoting 6 John S. Grimes, Thompson on Real Property
§ 3034, at 506 (1962)).   Here, the court determined the boundary line between
Smith’s and Donaldson’s property should be drawn at the iron pipes based on
“evidence of common usage and acquiescence.”   “Acquiescence” when used in an
evidentiary sense, as opposed to its use in the legal doctrine of acquiescence,
means that the boundary may be established by evidence of the “conduct of the
neighbors.”5   Id., ¶32.
¶21    The court placed the boundary line at the iron pipes instead of the
government lot line as referenced in the parties’ deeds because:   post-1958 surveys
had relied on and incorporated Gobler’s iron pipes; both Smith and Donaldson
originally believed the property boundary was at the iron pipes; and, “Since 1958,
every transaction concerning property in Government Lot 3 was based upon the
1958 E. Gobler survey, and people have been using the pipes he set as landmarks.”
4  It  appears  that  the  circuit  court  implicitly  recognized  that  Donaldson  owned  the
disputed parcel by deed.   After all, the court’s judgment conveyed land to Smith that is located in
Government Lot 3.
5  Neither party argues that the circuit court relied on the legal doctrine of acquiescence
instead of evidence of common usage and acquiescence.   Indeed, when applying Northrup, the
court stated it needed to look to “evidence of common usage and acquiescence rather than the
legal doctrine of acquiescence.”
9




No.   2012AP1322
¶22    We conclude the circuit court’s findings do not amount to sufficient
evidence of “common usage and acquiescence” to establish the property line at the
iron pipes instead of the government lot line.   First, E. Gobler’s 1958 survey and
any  post-1958  surveys  that  relied  on  the  pipes  do  not  support  drawing  the
boundary  at  the  iron  pipes  simply  because  neither  party  holds  title  to  their
respective parcels based on Gobler’s pipes or any survey that incorporated or
relied on the pipes.
¶23    Second,  although  both  parties  originally  believed  the  property
boundary was at Gobler’s pipes, this belief cannot by itself serve as “evidence of
common usage and acquiescence.”   See, e.g., Northrup, 331 Wis. 2d 287, ¶¶52-54
(developed road and century-long possession and occupation of land based on the
road constituted evidence of common usage and acquiescence).   Here, the circuit
court found that the iron pipes were located in a wooded area and the disputed
parcel of land was undeveloped, unused, and  “lying fallow.”    Although Smith
points out that the two iron pipes were at some point each marked by an iron post
and were therefore visible, this does not support the court’s determination that
Smith commonly used, possessed, or occupied the disputed parcel such that the
boundary line should be drawn at the iron pipes.   Simply put, the evidence does
not  support  a  determination  of  common  usage  or  acquiescence  based  on  the
parties’ conduct.
¶24    Moreover, we observe that no other legal theory has been presented
that  would  give  Smith  title  to  the  disputed  parcel  in  Government  Lot            3.
Donaldson argues that Smith cannot assert a claim under either adverse possession
or  the  legal doctrine  of  acquiescence  because  both  theories require  open  and
visible use of the property, which is not present here.    See, e.g., Peter H. &
Barbara  J.  Steuck  Living  Trust  v.  Easley,  2010  WI  App  74,  ¶¶14,  39,  325
10




No.   2012AP1322
Wis. 2d  455,  785  N.W.2d  631.    Smith  does  not  refute  these  assertions  and
therefore they are deemed conceded.   See Charolais Breeding Ranches, Ltd. v.
FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979).   In any
event, the record is clear that the disputed parcel was unused and undeveloped.
¶25    Because  the  evidence  of  common  usage  and  acquiescence  was
insufficient to draw the boundary line at the iron pipes instead of the government
lot line as referenced in the parties’ deeds, and because no other legal theory has
been presented that would give Smith title to the disputed parcel in Government
Lot 3, we reverse the circuit court’s judgment conveying the disputed parcel to
Smith.
By the Court.—Judgment reversed.
                                                                                       This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                              (b)5. (2011-12).
11




No.   2012AP1322
Trial Exhibit 1
12

Download 2012ap001322.pdf

Wisconsin Law