Fishman v. Nielsen

• Decision Date: 16 May 1952
• Docket Number: No. 35668,35668
• Citation: 53 N.W.2d 553,237 Minn. 1
• Court: Minnesota Supreme Court
• Parties: FISHMAN v. NIELSEN.

Page 553

53 N.W.2d 553

237 Minn. 1

FISHMAN v. NIELSEN.

No. 35668.

Supreme Court of Minnesota.

May 16, 1952.

Syllabus by the Court.

1. It is well-established law in this state that a practical location often constitutes a boundary line. The 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 a right of entry under the statute of limitations; (2) the line must have been expressly agreed upon between the parties claiming the land on both sides thereof and afterward acquiesced in; or (3) the parties whose rights are to be barred must have silently looked on, with knowledge of the true line, while the other party encroached upon it or subjected himself to expense in regard to the land which he would not have done had the line been in dispute. The evidence establishing the location of a practical boundary line must be clear, positive, and unequivocal.

2. Evidence Held clear, positive, and unequivocal that line established by construction of west fence in 1923 and 1924, and acquiesced in by the parties hereto and their predecessors in title for almost 25 years, established a practical boundary.

Johnson & Debel, Marshall, for appellant.

E. V. Molle, Marshall, for respondent.

FRANK T. GALLAGHER, Justice.

Appeal from an order of the district court denying plaintiff's motion for amended findings and conclusions of law or for a new trial.

According to the findings of the trial court, plaintiff is the record owner of SE 1/4 of section 8 and NE 1/4 of section 17 and defendant is the record owner of the W 1/2 of SW 1/4 of section 9 and NW 1/4 of section 16, all in township 111 north, range 41 west, in Lyon county; that on June 8, 1904, and for some time prior thereto, Jacob Jansen and Theodore Jansen, his brother, as tenants in common, owned the above-described premises now owned by defendant and herein referred to as the north farm; that at that time they also owned the SW 1/4 of section 16 and SE 1/4 of section 17, which is referred to herein as the south farm; that Jacob and his family occupied the north farm, and Theodore and his family occupied the south farm; that on June 8, 1904, Theodore conveyed to Jacob his undivided one-half interest in the north farm and, by that conveyance, reserved for himself, his family, and guests a right of way for travel by cart and wagon on the west one rod of the north farm. It appears from the record that this strip or roadway connected at the north end with a public highway leading into Marshall; that it extended to the buildings on the south farm; and that it was then the only way of ingress and egress to and from the south farm. It was used as a roadway by Theodore, his family, and guests from about 1899, when he acquired the south farm, until he sold it in 1942 to Weiner Brothers, who took possession in March 1943 and used the road until sometime in the fall of that year, when they built another road leading south from their buildings.

In 1914 and 1915, Theodore and Jacob Jansen and their sons graded and graveled the roadway in question, and it was again regraded in 1935 by defendant, with the aid of Theodore Jensen, who furnished the gravel. Plaintiff claims that he frequently used the roadway himself, but the record indicates that his use of it was rare and mostly confined to times when he shared work with occupants of the south farm or when high water made any other entrance to his farm impassable. He claims also that it was used frequently by the public; but defendant denies this, although the record shows that defendant admits that a number of people did use it in order to do business with the occupants of the south farm.

In 1923, one Ambrose Girard moved onto plaintiff's farm as a tenant, where he continued to live until 1942. He testified that at that time the roadway was there; that it was graveled; that there was no fence on the west side of the road, but that there was a two-wire post fence on the east side close to the road; and that 'On the north end there was a short piece of woven wire, about forty rods,' which was still there when he left the farm in 1942. He said that he built the fence on the west side of the road in 1923 and 1924, when he received instructions from his landlord, one James H. Wagner, to put the fence as close to the line as he could 'without going to any expense of surveying.' He explained that he asked the Jansen boys and Jacob Jansen 'about where they figured the line was,' and that he and Jacob Jansen, who was then occupying defendant's farm, measured and arrived at a line where the west fence was built. He said that his landlord furnished the material for the fence and that he did the work.

On cross-examination, Girard reiterated that his instructions from his landlord were to build the fence 'As close as I could get to establishing a line without going to any expense.' He explained that the intention was 'not exactly' to establish a line, but to have a fence to keep his stock in his field; that the Jansens had a fence on the other side to keep their stock in their field; 'and we left a lane which Jansens used as a road for their use at that time.'

Girard said that he maintained the west fence during the time he lived on the farm; but defendant testified that he maintained the north half of the fence from the time he moved onto the farm in 1938, and that when the tenant on plaintiff's farm refused to fix it 'we had to fix the lower end, too.'

Lars Nielsen, who owned defendant's farm from 1928 to 1932 and occupied it from 1928 to 1938, testified that he considered the west fence to be the dividing line between the lands of plaintiff and defendant during the time he owned the land. Defendant, who moved onto his farm in 1938, said that he regarded the west fence as the western boundary line of his farm.

A survey made by Virgil Johnson, Lyon county surveyor, in July 1950 placed the roadway in question on plaintiff's land, except for a small sliver of the roadway extending over the line and into the W 1/2 of SW 1/4 of section 9, which claim plaintiff did not press at the trial.

The record shows that defendant plowed up the roadway in 1949 and closed the road. Prior to that, it appears that a dispute arose between the parties hereto in the spring or summer of 1948, when defendant claimed that the roadway was his and plaintiff replied that he had always understood that the road belonged to the three farms. In 1950, plaintiff brought this suit to define and locate the boundary line and establish a permanent monument at a point set out in the complaint.

The case was tried before the court without a jury. The court found for defendant, holding that the west fence constructed in 1923 and 1924 constitutes a practical boundary between the lands of the parties and that defendant and his predecessors acquired the premises lying east of the division fence by adverse possession. Plaintiff appealed from the court's order denying his motion for amended findings or a new trial.

The principal question which we deem necessary to consider for a determination of this case is whether the so-called west fence constitutes a practical boundary between the lands of plaintiff and defendant. It is our opinion that it does. While there is some conflict in the testimony in this connection, we believe that it amply supports the findings of the trial court.

It appears to us that when James H. Wagner, plaintiff's predecessor in title, ordered the construction of the west fence by his tenant Girard in 1923 and 1924 it was his intention, as well as that of the Jansens, who were consulted by Girard, to establish a practical boundary between the farms now owned by plaintiff and defendant. This is corroborated by the testimony of Girard, who said that his landord told him to put the fence as close to the line as possible without going to any expense of surveying. It is further substantiated by the fact that Girard, before building the fence, consulted the Jansens, especially Jacob Jansen, the then occupant of defendant's farm, to find out 'about where they figured the line was.' After looking over the property with Jacob Jansen, they then made some measurements, and the co-called west fence was constructed, where it has since remained. Girard constructed the fence, and his landlord furnished the material. It apparently stood there without protest from anyone during the time Girard continued to reside on the farm now owned by plaintiff. It remained there after Girard left the farm in 1942, and was still there when plaintiff purchased the place in 1947. After that, there seems to have been no protest on the part of plaintiff or any dispute between him and defendant with reference to the west fence or the road until sometime in the summer of 1948. It seems clear to us from...