In re Fischer Sand & Aggregate, LLP

• Court: Minnesota Court of Appeals
• Writing for the Court: Connolly, Judge
• Decision Date: 16 March 2015
• Docket Number: A14-0735
• Citation: In re Fischer Sand & Aggregate, LLP, A14-0735 (Minn. App. Mar 16, 2015)
• Parties: In the Matter of the Application of Fischer Sand and Aggregate, LLP

In the Matter of the Application of Fischer Sand and Aggregate, LLP

A14-0735

STATE OF MINNESOTA IN COURT OF APPEALS

March 16, 2015

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

Affirmed

Connolly, Judge

Dakota County District Court

File No. 19HA-CV-09-5476

Gene Rechtzigel, Apple Valley, Minnesota (pro se appellant)

Matthew S. Duffy, Kristin L. Kingsbury, Monroe Moxness Berg P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and Connolly, Judge.

UNPUBLISHED OPINION

CONNOLLY, Judge

In this appeal concerning respondent property owner's attempt to register title to its real property, pro se appellant, who owns abutting property and opposes the registration, challenges the district court's determination of the boundary line of the land to be registered and assigns various errors to the district court. We affirm.

FACTS

In September 2009, respondent Fischer Sand and Aggregate, LLP¹ filed an application to register three parcels of land under the Torrens Act, Minn. Stat. §§ 508.01-.84 (2014). Respondent is the owner in fee simple of the two parcels referred to by the parties and the district court as "parcel 1" and "parcel 2." The third parcel of land is an "orphaned" strip of land that lies west of parcel 2, referred to by the parties and the district court as "the gap" or "the strip" parcel.² Respondent asserted ownership of the gap by adverse possession and sought to quiet title and register the gap along with parcel 1 and parcel 2.

The district court held a hearing on respondent's adverse possession claim to the gap in February 2012. Appellant Gene Rechtzigel, as well as the Evelyn I. Rechtzigel Trust and the Frank H. Rechtzigel Charitable Remainder Trust, objected to respondent's quiet title and registration action in regard to the gap. Appellant was the record owner of the land west of the gap until 1997, when he sold the land to Pulte Homes. Appellant currently owns land adjacent to the gap. At the hearing he testified that he believes he owns the gap and has consistently used and maintained the land as if he did own it.

The district court issued an order in April 2012. The district court determined that neither respondent nor appellant is the record owner of the gap. It also determined thatrespondent did not provide clear-and-convincing evidence to establish a claim to the gap by adverse possession and denied respondent's request to acquire title to the gap. The district court noted that no party objected to respondent's application with regard to parcel 1 and parcel 2, and granted respondent's application to register those parcels.

After the district court issued the order, appellant filed posttrial motions that challenged the accuracy of the parcel 2 land description. Appellant argued that the true boundary between the gap and parcel 2 is marked by an old fence line. The fence line is approximately three feet farther east than the western boundary provided in parcel 2's legal description. Appellant argued that he owned the land extending to the fence line, and challenged respondent's application to register parcel 2 because it included land that he believed that he owned. Although the fence line was discussed in detail during the first hearing, it appears to us that neither the judge nor the parties realized it had an impact on parcel 2's registration application.

After the hearing on the posttrial motions, the district court issued an amended order in August 2012, granting respondent's request to modify its application³ and reserving respondent's application to register parcel 2. The district court judge also assigned himself to preside over appellant's application to register the gap and stated he would hear evidence as to the proper legal description of parcel 2 at that time. However, the judge later removed himself from consideration of appellant's proposed registration action at the request of appellant. Nearly a year passed and appellant did not perfect an application to register the gap. On August 2, 2013 respondent moved to amend itsapplication and complete the registration of parcel 2. The district court granted the motion and scheduled a hearing on the boundary line between parcel 2 and the gap.

A second hearing was held in August 2013. Respondent submitted certified copies of warranty deeds and a report by the Examiner of Titles as evidence that it was the record owner of parcel 2 to the full and complete legal description provided in the application. Russell Damlo and Ray Brandt, licensed surveyors, and William Maurer, a civil engineer, all testified that they had inspected parcel 2 and did not observe any occupational use interfering with parcel 2's western boundary. Damlo prepared surveys of the land and stated that any occupational use would have been noted on a 1997 survey completed by licensed surveyor Delmar Schwanz. He further testified that the legal description in respondent's registration application was consistent with the legal description that had been used in previous surveys, deeds, and transactions involving parcel 2.

Appellant argued that he was the record owner of the gap and that the true boundary between the gap and parcel 2 is an old fence line. The fence is no longer intact, although several fence posts remain. Appellant offered photographs purporting to show the fence line. He also offered a retracement survey prepared by James Bridell, a licensed surveyor, which claimed to establish the location of the fence line. Bridell described the fence line as "highly obliterated." He testified that he retraced the obliterated fence line based on the location of the remaining posts, the elevation of the land, his own intuition and judgment, and input from appellant. The difference between the alleged fence line and the boundary line ranges from six inches to three or four feet.

Appellant further argued that the fence line was a statutory partition fence under Minn. Stat. § 344.02 (2014). Appellant did not present any evidence concerning when the fence was built, who built it, or why it was built. Respondent recalled Ray Brandt as a witness and introduced an opinion letter Brandt prepared that questioned Bridell's methods and conclusions as being contrary to accepted surveying practices.

The district court issued an order in November 2013 that granted respondent's application to register parcel 2. The district court determined that respondent was the record owner in fee simple of parcel 2. It also determined that appellant was not the record owner of the gap, but assumed he had acquired title through adverse possession for purposes of the boundary-line analysis. With respect to the fence, the district court stated that it was convinced a fence did exist at some point, but that appellant did not provide clear-and-convincing evidence as to the location of the fence line. Because respondent established that it was the record owner in fee simple of parcel 2 and no other party had established a legitimate claim to the property, the district court granted respondent's application to register parcel 2. This appeal follows.

DECISION

Appellant challenges the district court's determination of the boundary line between parcel 2 and the gap. He asks this court to deny respondent's application to register parcel 2 and find that the fence line is the true boundary between parcel 2 and the gap.⁴

Although respondent did not seek a determination of boundary lines, a district court may nonetheless fix a boundary line when title and boundary are logically inseparable. See Application of Hofstad, 376 N.W.2d 698, 701 (Minn. App. 1985) ("[f]or the [] court to determine ownership . . . it was necessary to fix the boundary between the parcels.").

Appellant's arguments challenge the initial determination of the boundary line, the decision not to establish a boundary by practical location, and allege that various errors resulted in fraud on the court. We address each argument in turn.

1. Initial Determination of the Boundary Line

Appellant argues that the district court "erred in making findings and an order unsupported by the evidence and improperly applying the law as to 'what is the boundary line?'" In boundary-line cases the factual findings of the district court will not be disturbed unless "the evidence taken as a whole furnishes no substantial support for them or where it is manifestly or palpably contrary to the findings." Engquist v. Wirtjes, 243 Minn. 502, 506, 68 N.W.2d 412, 416 (1955) (quotation omitted). "Upon appeal the burden is on the appellant to show that there is no substantial evidence reasonably tending to sustain the [district] courts findings." Gifford v. Vore, 245 Minn. 432, 434, 72 N.W.2d 625, 627 (1955).

Fence Line v. Legal Description

Appellant argues that the fence line should be given priority over the line provided in the legal description. Appellant asserts that "[c]ommon law consistently and strongly states" that in determining boundary lines, artificial boundaries, such as fences, are given priority over courses and distances in a legal description. Appellant's contention is only partially correct. The established rule is that "when identifying boundary lines, fixed and known monuments or objects called for in a legal description found in a deed prevail over given courses and distances; the order of application being first, to natural objects; second, to artificial marks; and, third, to courses and distances." Magnuson v. Cossette, 707 N.W.2d 738, 744 (Minn. App. 2006). Thus, artificial objects prevail over courses and distances only when included in a legal description in a deed. Parcel 2's legal description does not contain any reference to the fence line. Therefore, the fence line is not given priority over the courses and distances in the legal description.

Statutory Partition Fence

Appellant also argues that the fence line should control because it...