Chandelle Enterprises, LLC v. XLNT Dairy Farm, Inc.

• Decision Date: 26 April 2005
• Docket Number: No. 2004AP2423.,2004AP2423.
• Citation: 2005 WI App 110,699 N.W.2d 241,282 Wis.2d 806
• Parties: CHANDELLE ENTERPRISES, LLC, Plaintiff-Appellant, v. XLNT DAIRY FARM, INC., Defendant-Respondent.
• Court: Wisconsin Court of Appeals

282 Wis.2d 806

2005 WI App 110

699 N.W.2d 241

CHANDELLE ENTERPRISES, LLC, Plaintiff-Appellant, v. XLNT DAIRY FARM, INC., Defendant-Respondent.¹

No. 2004AP2423.

Court of Appeals of Wisconsin.

Submitted on briefs March 14, 2005.

Decided April 26, 2005.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Steven J. Swanson of Swanson Law Office of St. Croix Falls.

On behalf of the defendant-respondent, the cause was submitted on the brief of Gary L. Antoniewicz of Boardman, Suhr, Curry & Field, LLP of Madison.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

Chandelle Enterprises, LLC appeals a judgment denying its action for ejection, and establishing the northern boundary line of the "NW¼ of the S/E¼, Section 26" as the fence line that runs east-west between that quarter section and a section owned by XLNT Dairy Farm.² Chandelle argues that neither of the equitable doctrines the trial court might have relied on—acquiescence or reformation under WIS. STAT. § 847.07³—apply to the facts in this case. Thus, Chandelle contends, there was no legal basis for the court's decision. We agree and reverse the judgment.

Background

¶ 2. Most of the relevant facts in this case are not disputed. In 1985, Marvin Pilgrim died. In 1987, the personal representative of Pilgrim's estate, Gordon Peterson, sold XLNT several properties in Polk County, including the "SW¼ of the NE¼, Section 26, Township 34 North, Range 18 West." Prior to the sale, XLNT had farmed that quarter for a number of years under a lease with Pilgrim. In 1988, Peterson sold the "NW¼ of the SE¼, Section 26, Township 34 North, Range 18 West, except Lot 1 of the Certified Survey Map No. 1286" to Ervin Hansen. These two quarters share a north-south border that runs the full east-west width of the forty-acre parcels. A fence line also runs the east-west width of the parcels in question.

¶ 3. When Peterson sold the quarters, he believed that fence line marked the actual boundary line between them and, as he testified at trial, he told both XLNT and Hansen that the fence was the boundary. In 1989, Hansen had Wayne Swenson survey his quarter and discovered that the fence line was actually located forty-five to sixty-nine feet south of the true "forty line." According to the survey, the fence was thus on Hansen's land and the true boundary was north of the fence. Hansen took no action against Pilgrim's estate and apparently never informed XLNT about the discrepancy. XLNT had farmed the land on its side of the fence up to the fence line throughout the years it had leased the property and continued to farm to the fence line after 1989.

¶ 4. In 1991, Hansen sold his quarter—"the NW¼ of the SE¼" of Section 26—to William and Jo Krager, who later transferred title to Chandelle, a limited liability company they owned. In 2003, Chandelle asked Swenson to survey the property to establish its boundaries. Swenson again located the boundary line between the XLNT quarter and the Chandelle quarter, north of the old fence line. Swenson testified that land records showed that the county surveyor had remounted an "obliterated" east quarter corner marker in 1979.⁴ Based on the remounted quarter marker, Chandelle has title to approximately 1.81 acres of land located on the XLNT side of the fence.⁵

¶ 5. Chandelle brought an action for a declaratory judgment establishing the true boundary line as the one located by Swenson rather than the fence line. XLNT counterclaimed, arguing that the boundary should remain the fence line based on equitable doctrines of adverse possession, acquiescence, and reformation of the deeds to express the true intentions of the buyers and sellers. After a bench trial on March 18, 2004, the trial court ruled that XLNT could not prove adverse possession because it had not occupied the property in question for twenty years.⁶ The court also concluded "the evidence seems clear that whenever a transfer of real estate took place everyone considered and accepted the fence line as the boundary line." In its July 2004 Order and Judgment, the trial court granted XLNT's "counterclaim for possession and title . . . based upon the Court's equitable powers to reform deeds. . . ." Chandelle now appeals.

Discussion

¶ 6. The issue before us therefore is whether the trial court erred when it declared the fence line the boundary line between the Chandelle and XLNT quarters based either on the doctrine of acquiescence or its equitable power to reform deeds to correct a mutual mistake.⁷

The Doctrine of Acquiesence

¶ 7. At first blush, fairness and the equitable doctrines associated with it would appear to dictate that a fence long accepted as the boundary between two properties should become the true boundary line. However, Chantelle argues that the equitable doctrine of acquiescence cannot apply because extrinsic evidence showing that the parties believed the fence line was the true boundary line is not admissible in this case. We agree.

¶ 8. The doctrine of acquiescence is "a supplement to the older . . . rule of adverse possession which held that adverse intent was the first prerequisite of adverse possession. . . . The harsh result of this rule soon became apparent . . . and courts began to hold that land could be acquired by adverse possession . . . if the true owner acquiesced in such possession for a period of twenty years." Buza v. Wojtalewicz, 48 Wis. 2d 557, 562-63, 180 N.W.2d 556 (1970). The doctrine thus ameliorates the rule of adverse possession by allowing mutual acquiescence to substitute for adverse intent.

¶ 9. The general outline of this doctrine became part of Wisconsin law in the nineteenth century. During the twentieth century, however, courts expanded the doctrine by crafting exceptions to the requirement of a twenty-year period of acquiescence. Thiel v. Damrau, 268 Wis. 76, 81-84, 66 N.W.2d 747 (1954), establishes the exception XLNT relies on:⁸

[W]here adjoining owners take conveyances from a common grantor which describe the premises conveyed by lot numbers, but such grantees have purchased with reference to a boundary line then marked on the ground, such location of the boundary line so established by the common grantor is binding upon the original grantees and all persons claiming under them, irrespective of the length of time which has elapsed thereafter.

Id. at 81 (emphasis added).

¶ 10. Our supreme court's authority for this exception is a New York case, Herse v. Mazza, 91 N.Y.S. 778 (1904). Herse⁹ determined that the actual location "with reference to which the parties contracted and took their titles" controlled and was "conclusive . . . of the true location" of the disputed boundary line. Id. at 779. Herse did not presume, however, that the parties agreed on a different boundary than the deed boundary, but rather that they had correctly found and located the true boundary and subsequently took title under deeds that described that boundary. Id. The line established by the original marks on the ground, the stakes, "is presumably the line mentioned in the deed;" the location does not rest "upon acquiescence in an erroneous boundary but upon the fact that the true location was made and the conveyance made in reference to it." Id. at 780. However, we do not get to the Herse exception if the description in the deed "is definite, certain and unambiguous." See Buza, 48 Wis. 2d at 566 (citation omitted). The location of any marker is admissible extrinsic evidence only if "the location of the boundary line was not described in the deed." Id.

¶ 11. Thiel adopted Herse's conclusions in a case in which the deed descriptions, also by lot numbers, were ambiguous.¹⁰Buza made it clear, however, that the exception from the twenty-year acquiescence period did not apply when a conveyance was by metes and bounds because the descriptions in that case were not ambiguous. Buza, 48 Wis. 2d at 566. "If everyone had occupied from the true forty line, as the deeds directed them to do, there would have been no dispute." Id. If parties acquiesce in "a wrong boundary, when the true boundary can be ascertained from the deed, it is treated both in law and equity as a mistake and neither party is estopped from claiming to the true line." Hartung v. Witte, 59 Wis. 285, 299, 18 N.W.175 (1884).

¶ 12. The form of the description is, in other words, significant only to the extent a description in the deed or conveying document is ambiguous or unambiguous. The primary source of the intent of the parties is what they wrote within the four corners of the deed and "parole evidence to vary the terms of a written instrument, or to show an intention contrary to that disclosed upon its face, is not competent, unless there is ambiguity in the instrument." See Elofrson v. Lindsay, 90 Wis. 203, 205, 63 N.W. 89 (1895). Only where the description in a deed is "uncertain and doubtful," therefore, can the court look to extrinsic evidence of location and possession to show intention. See id.

¶ 13. To support its claim that the doctrine of acquiescence applies to the facts in this case, XLNT cites Nagel v. Philipsen, 4 Wis. 2d 104, 90 N.W.2d 151 (1958). However, Nagel deals with a different exception to the twenty-year rule, with a fence built after a survey and in reliance on it. Id. at 110. More importantly, there is no evidence that Nagel alters the prerequisite for employing extrinsic evidence—ambiguity in the deed.

¶ 14. Early Wisconsin case law indicates state courts saw nothing ambiguous about descriptions by quarter section. In 1854, the supreme court found there was "no difficulty" in ascertaining the premises intended to be conveyed where the section, town and range were correct and the instrument inadvertently substituted northwest quarter for southeast quarter. Thompson v. Jones, 4 Wis. 124, 129-30 (1854). Ten years later, the supreme court similarly found that monuments established by government surveys and implicitly...