Daniel R. Northrop v. Opperman

• Decision Date: 03 February 2011
• Docket Number: No. 2009AP1559.,2009AP1559.
• Citation: 795 N.W.2d 719,2011 WI 5,331 Wis.2d 287
• Parties: Daniel R. NORTHROP, Plaintiff,Kay M. Boerst and Peter S. Boerst, Plaintiffs–Appellants–Petitioners,v.Betty OPPERMAN, Connie Henn, Floyd Opperman, Keith Opperman, Mark Henn and Pamela Opperman, Defendants–Respondents.
• Court: Wisconsin Supreme Court

331 Wis.2d 287

795 N.W.2d 719

2011 WI 5

Daniel R. NORTHROP, Plaintiff,Kay M. Boerst and Peter S. Boerst, Plaintiffs–Appellants–Petitioners,

v.Betty OPPERMAN, Connie Henn, Floyd Opperman, Keith Opperman, Mark Henn and Pamela Opperman, Defendants–Respondents.

No. 2009AP1559.

Supreme Court of Wisconsin.

Argued Dec. 1, 2010.Decided Feb. 3, 2011.

For the plaintiff-appellant-petitioner there were briefs and oral argument by Vicki Zick, Zick & Weber Law Offices, LLP, Johnson Creek.For the defendant-respondent there was a brief and oral argument by Joe Thrasher, Thrasher, Doyle, Pelish & Franti, Rice Lake.An amicus curiae brief was filed on behalf of the Wisconsin REALTORS Association by Thomas D. Larson.SHIRLEY S. ABRAHAMSON, C.J.

This is a review of a published decision of the court of appeals,¹ which affirmed in part and reversed in part the judgment of the Circuit Court for Ashland County, John P. Anderson, Judge.Kay and Peter Boerst seek review of that part of the court of appeals decision affirming the circuit court's determination that the boundary line between their property and the property of Betty and Floyd Opperman is the center line of Henn Road.²We affirm this part of the decision of the court of appeals.

¶ 2 The Boersts own a parcel of land in Section 9 that is adjacent to and east of a parcel of land in Section 8 owned by the Oppermans.The boundary line in dispute in this action is the western boundary of the Boersts' property in Section 9 and the eastern boundary of the Oppermans' property in Section 8.

The circuit court determined that the center line of Henn Road (which runs north and south) is the boundary line between the Boersts' and the Oppermans' properties.The court of appeals affirmed this part of the circuit court's judgment.³

¶ 4 The Boersts present the issue as “whether the doctrine of acquiescence allows mistaken boundaries to become legal boundaries after twenty years of mistaken belief has passed.”This presentation of the issue is driven by the circuit court's and the court of appeals' use of the word “acquiescence” in their analyses.Our review is not constrained by this statement of the issue.The issue before the court is whether the court of appeals erred in holding that the circuit court correctly determined that the center line of Henn Road is the boundary line separating the parcel of land owned by the Boersts from the parcel of land owned by the Oppermans.

¶ 5We conclude that in determining the boundary line by evaluating the evidence of common usage and acquiescence and not by using the legal doctrine of acquiescence, the circuit court applied the correct legal analysis in the present case.After finding that the actual boundary line ⁴ could not be determined from the deed and original monuments or markers, the circuit court evaluated the evidence and established the boundary line based upon the best evidence available.There are sufficient facts in the record upon which the circuit court based its findings that the actual boundary line could not be determined from the deed and the original monument or markers and that the best evidence supports the center line of Henn Road as the boundary line separating the parcels owned by the parties to this review.The best evidence was not the successive surveys but common usage and acquiescence.

I

¶ 6 Resolution of a boundary dispute is ordinarily fact-driven, and the present case is no exception.The record in this case reflects a rich history of over 120 years involving the lands in question in Sections 8and9.

¶ 7We begin the history in July 9, 1886, with the original survey of Henn Road.The Butternut Town Board laid out a public highway, Henn Road, described as beginning at the “southwest corner of section 9 (nine) thence north on the sec line to the north west corner of section 9 (nine).”Henn Road then continues west from the northerly end of the north/south part of the road.Although the Road presently curves, apparently it was originally a right-angle intersection with the corner common to Sections 4,5,8, and9 believed to be at the intersection of the two parts of the Road.

¶ 8 In 1907, the Town of Butternut contracted with Ashland County SurveyorGeorge Parker to run survey lines according to the original government survey or, if the original landmarks were destroyed or lost, to reestablish those corners under the general rules adopted by the government in the survey of public lands.Parker submitted a survey in 1908.Shortly thereafter the Town Board directed Parker to complete the survey and finish setting the monuments as contracted.

As a result of the 1908 Parker survey, litigation ensued between owners of parcels in Section 8andSection 5.Section 5 borders Section 8 to the north, and Sections 5,8, and9 share (along with section 4) a common corner.In that litigation it was alleged that the 1908 survey moved the boundary line between Sections 8and5 south of the east/west part of Henn Road.The jury returned a verdict determining that the owner of parcels in Section 8 owned the land up to the center line of the east/west part of Henn Road.

¶ 10 In 1911 another survey by Parker was presented to the Town Board.The Town Board records indicate some wrangling over the acceptance of the 1911 survey, but in 1912 a certificate of survey bearing Parker's name was recorded.The 1912 survey contains different bearings than the 1908 survey submitted by Parker for the boundary line between Sections 8and9.

¶ 11 In 1917 the same owner of parcels in Section 8 again initiated litigation to resolve a boundary dispute.In the 1917 action, the owner of parcels in Section 8 claimed title to portions of land north of the east/west part of Henn Road.He based his claim on the 1912 Parker survey, arguing that the boundary line between Sections 8and5 was north of Henn Road.The owner of parcels in Section 5 alleged that the road was accepted by everyone as the boundary line between Sections 5and8 and that people living along the road, relying upon that line, had made large and extensive improvements on the land.

¶ 12 Based on the evidence introduced at trial, the parties stipulated that the common corner of Sections 4,5,8, and9 in Township 41 North, Range 1 West, Ashland County, Wisconsin, is at the intersection of the center line of Henn Road, setting Henn Road as the boundary between Sections 5and8.

For 88 years after this stipulation, the record supports the proposition that Henn Road was honored as the boundary line between Sections 5and8, and the original intersection of Henn Road was honored as the common corner.

¶ 14 One example of reliance by the government and property owners upon that common corner can be found in the 1935 conveyance of land from the then-owners of parcels in Section 8 to the State of Wisconsin for the purposes of building a new Highway 13 through Section 8 and the plat of the right of way required.The conveyance described the land conveyed by reference to the northeast corner of Section 8, and the Plat of the Right of Way Required shows the common corner of Sections 4,5,8, and9 at the original intersection of the north/south and east/west parts of Henn Road.⁵

¶ 15 The “boundary peace” was disturbed in 2005 when a surveyor found a concrete monument in the swamp northwest of the original intersection of Henn Road and notified the county surveyor.The county surveyor accepted the concrete monument as a section corner under the 1912 survey and recorded a corner restoration sheet (tie sheet) for the corner common to Sections 4,5,8, and9.According to the 2005 survey, north/south Henn Road actually lies entirely in Section 9, approximately 600 feet east of Section 8, giving the Boersts additional acreage and the Oppermans less acreage.

¶ 16 The Oppermans, through an independent surveyor, prepared an alternative tie sheet for the common corner, setting the original intersection of Henn Road as the common corner.The county surveyor did not accept this alternative tie sheet.

¶ 17 The 2005 survey caused significant disruption and confusion for landowners in the area.⁶This litigation ensued.

II

¶ 18 The Boersts commenced this action, asking the circuit court to declare them the rightful owners of land lying west of the north/south Henn Road.A one-day trial ensued consisting almost entirely of expert testimony concerning the location of the corner common to Sections 4,5,8, and9.

¶ 19 Pertinent to our analysis, the circuit court made the following findings of fact:

• The original section corner monument between Sections 4,5,8, and9 in Township 41 North, Range 1 West, Ashland County, Wisconsin no longer exists.

• No competent evidence is before the court to determine where the original section corner monument was originally placed.

• No clear and convincing evidence exists that the resetting of the corners in the 1912 Parker survey (upon which the 2005 tie sheet is based) was correct.

• Neither party has shown by clear and convincing evidence where the actual boundary line exists.

¶ 20The circuit court further concluded that the original boundary line between Sections 8and9 cannot be determined solely by the descriptions in the deeds.

¶ 21 The deed to the Boersts' parcel describes the real estate as “The Southwest one-fourth (1/4) of the Northwest one-fourth (1/4) of Section Nine (9), Township Forty-one (41) North, Range One (1) West, Town of Chippewa, County of Ashland, Wisconsin.”The deed to the Oppermans' parcel describes the real estate as “The Southeast Quarter of the Northeast Quarter, Section 8, Township 41 North, of Range1 West....”

¶ 22 Although the descriptions in the deeds are unambiguous on their face, the real estate described cannot be located on the ground because, as the circuit court explained, “the corner of Sections 4,⁷5,8, and9 cannot be located.”Thus it is not possible using the deed descriptions and nothing more to locate on...