Gabler v. Fedoruk, No. A08-0517.

• Decision Date: 14 October 2008
• Docket Number: No. A08-0517.
• Citation: 756 N.W.2d 725
• Parties: Jack H. GABLER, et al., Appellants, v. Elizabeth FEDORUK, et al., Respondents.
• Court: Minnesota Court of Appeals

756 N.W.2d 725

Jack H. GABLER, et al., Appellants, v. Elizabeth FEDORUK, et al., Respondents.

No. A08-0517.

Court of Appeals of Minnesota.

October 14, 2008.

Mark C. Jennings, Duluth, MN, for appellants.

Matthew H. Beaumier, Andrew J. Harrington, Gerlach Beaumier, Attorneys at Law, LLP, Duluth, MN, for respondents.

Considered and decided by ROSS, Presiding Judge; MINGE, Judge; and JOHNSON, Judge.

OPINION

ROSS, Judge.

This appeal regarding a dispute between two landowners over the location of their common boundary—with appellants Richard and Patricia Fredricks and their predecessor in interest, Jack Gabler, on one side of the boundary, and respondents Elizabeth and Stanley Fedoruk on the other—requires us to decide whether the district court may, in its discretion, refuse to give legal effect to a boundary that it has expressly found to exist by practical location. We must also decide whether the district court may order the landowners on one side of the boundary to pay the owners on the other side the full, fee-simple ownership value of the entire disputed property to compensate them for a prescriptive easement that allows limited possession and limited use of a part of the disputed property. Because the answer to both questions is no, we reverse the district court's judgment granting less than a fee simple interest to the Fredrickses after they proved the location of the boundary, and we reverse the damages award to the Fedoruks made purportedly to compensate them for the Fredrickses' future use of the disputed land—land in which, according to the boundary as determined by the district court, the Fredrickses are entitled as a matter of law to a fee simple interest.

FACTS

The facts of this dispute over lakeside property in St. Louis County were determined by the district court after a bench trial in October 2007. In 1973, Mary Mauriala divided her Cotton Township parcel of land and sold Lester Mattson the western portion of it, retaining the rest. Mattson soon removed trees and underbrush along the boundary separating his property from Mauriala's property, and he constructed a driveway there on land that he believed to be his. Mauriala and her daughter, Elizabeth Fedoruk, continued to own and possess the adjoining parcel to Mattson's east and did not object to the construction or existence of Mattson's driveway. Only Mattson and his guests used the driveway the entire nine years that he owned the parcel, and Mattson maintained the driveway along with the rest of his land to the west of it.

Mattson sold his parcel to Jack Gabler in 1982. Like Mattson, Gabler exclusively used and maintained the driveway without objection from Mauriala or Elizabeth Fedoruk the entire time he owned it. For nine years he had the same belief as Mattson that the boundary was to the east of the driveway. Mauriala died in 1986 and Elizabeth Fedoruk and her husband, Stanley Fedoruk, inherited her parcel. In 1991 Gabler learned that the driveway was not on his land as described in the recorded deed, but on the Fedoruks' land.¹ He notified the Fedoruks of the encroachment and offered to resolve it, but the Fedoruks did not respond substantively. They neither asked Gabler to relocate the driveway nor investigated whether or to what extent the driveway actually extended beyond the recorded boundary onto their parcel. Gabler continued to maintain the driveway and a parallel portion of land immediately to its east, extending the full length of the lot even beyond the driveway to the lakeshore, where a boat ramp serving Gabler's parcel had been in place since 1973 also without objection by the Fedoruks. Gabler maintained the segment as his own until he sold the property to the Fredrickses in 2006.

Coinciding with the Gabler—Fredricks sale in 2006, Gabler and the Fredrickses brought suit against the Fedoruks seeking a declaration from the district court that the boundary was established by its practical location based on the 33-year performance of the parties and their predecessors. In the alternative, they requested that the district court grant them a prescriptive easement for continued use of part of the disputed land, specifically the driveway. After trial, the district court sua sponte requested that the parties submit supplemental briefing on the disputed land's value. The parties submitted motions, and the Fedoruks presented an appraisal valuing the land.

Based on the trial evidence and posttrial submissions, the district court concluded that Gabler and the Fredrickses "have established a boundary by practical location through acquiescence." But the district court did not stop its analysis there. It went on to find that Gabler and the Fredrickses also proved their alternative theory of prescriptive easement. The district court then declared, "As this Court finds Plaintiffs have proved entitlement under either theory, the Court must choose one." Without stating any reason why it would not recognize the boundary that it found to exist, the district court announced, "In the context of this case, the Court feels the most just resolution is to grant Plaintiffs a prescriptive easement over Defendants' land. This entitles Plaintiffs to use the driveway in the same manner as they have historically used it, ... while allowing Defendants to maintain[ ] title to the land itself."

The district court then also awarded the Fedoruks damages of $8,400, which it determined to be "the value of the property burdened by prescriptive easement" based on the Fedoruks' submitted appraisal, which valued not only the land on which the driveway lay but also the land that extended from the driveway to the lake.

Gabler and the Fredrickses appeal.

ISSUES

I. Did the district court err as a matter of law by failing to enter judgment establishing the boundary by practical location after it determined that Gabler and the Fredrickses had proven the boundary?

II. Did the district court abuse its discretion by awarding damages to the Fedoruks to compensate them for the Fredrickses' future use of the land?

ANALYSIS

I

Gabler and the Fredrickses challenge the district court's decision not to order the recognition of the boundary between the two parcels after the court expressly found that they had established the boundary by practical location by clear and convincing evidence. The challenge is well founded.

An action for the establishment of a boundary by practical location, like the closely related action for adverse possession, is a title-transferring event that relies in substantial part on the deed holder's conduct. See Benz v. City of St. Paul, 89 Minn. 31, 37, 93 N.W. 1038, 1039 (1903) (explaining that a high quantum of evidence is necessary because establishing a boundary by practical location "shall deprive the party claiming under the deed of his legal rights"). A party claiming boundary by practical location establishes the boundary in one of three ways: (1) by acquiescence "for a sufficient length of time to bar a right of entry under the statute of limitations"; (2) by an express agreement of the parties claiming the land on both sides of the line and then by acquiescence; or (3) by estoppel. Theros v. Phillips, 256 N.W.2d 852, 858 (Minn. 1977).

To establish a boundary by practical location through acquiescence, Gabler and the Fredrickses had to demonstrate that the Fedoruks affirmatively or tacitly consented to the placement and maintenance of the driveway for at least 15 years. LeeJoice v. Harris, 404 N.W.2d 4, 7 (Minn. App.1987); see also Fishman v. Nielsen, 237 Minn. 1, 7-8, 53 N.W.2d 553, 556-57 (1952) (finding boundary by practical location through acquiescence when two predecessors in title agreed on a line, built a fence on the line, and acquiesced in the line for at least 18 years). When landowners occupy their adjoining premises up to a certain line that they both recognize and acquiesce in for 15 years, they are generally precluded from contesting that boundary line. Amato v. Haraden, 280 Minn. 399, 403-04, 159 N.W.2d 907, 910 (1968); see Minn.Stat. § 541.02 (2006) (providing the statute of limitations for actions to recover real estate). Given the significance of the divestiture that follows a finding that a boundary has been established by practical location, the disseizor must establish the boundary by "clear, positive, and unequivocal" evidence. Benz, 89 Minn. at 37, 93 N.W. at 1039.

The district court followed the case law, carefully applying it to the uncontested facts, and it concluded that Gabler and the Fredrickses proved their case by clear and convincing evidence and established a boundary by practical location through acquiescence. It held, "Plaintiffs are entitled to the disputed area under this theory." The Fedoruks seem to contest this conclusion, but, as Gabler and the Fredrickses point out, the Fedoruks did not file a notice of review challenging the district court's supporting factual findings, and even if they had, they did not provide a trial transcript to facilitate our review of the factual basis for the finding. See Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970) (noting lack of a transcript preludes review of factual questions); Fritz v. Fritz, 390 N.W.2d 924, 925 (Minn.App.1986) (ruling appellate court cannot review findings of fact where transcript not provided). "Even if the judgment [in the district court] is ultimately in its favor, a party must file a notice of review to challenge the district court's ruling on a particular issue." City of Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn. App.1996), review denied (Minn. Aug. 6, 1996); see also In re Estate of Barg, 752 N.W.2d 52, 74 (Minn.2008) (deeming issue waived when no notice of review was filed). On the unchallenged facts as found by the district court, the evidence supports the finding that Gabler and the Fredrickses established the boundary by practical location.

Gabler and the Fredrickses...