Manz v. Bohara

• Decision Date: 17 April 1985
• Docket Number: No. 10700,10700
• Citation: 367 N.W.2d 743
• Parties: Bennie MANZ and Irene Manz, Plaintiffs and Appellees, v. Fred BOHARA, Violet Bohara, Defendants and Appellants, and Hulda Rathjen, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 743

367 N.W.2d 743

Bennie MANZ and Irene Manz, Plaintiffs and Appellees, v. Fred BOHARA, Violet Bohara, Defendants and Appellants and Hulda Rathjen, Defendant.

Civ. No. 10700.

Supreme Court of North Dakota.

April 17, 1985.

Bair, Brown & Kautzmann, Mandan, for plaintiffs and appellees; argued by Bruce B. Bair.

Evans & Moench, Bismarck, for defendants and appellants; argued by David L. Evans.

ERICKSTAD, Chief Justice.

This appeal involves a boundary dispute between the parties, who farm adjoining land in Sheridan County. Fred and Violet Bohara appeal from the judgment of the district court quieting title to a strip of land located in Lot 2 and the Southwest quarter of the Northeast quarter (SW 1/4NE 1/4) of Section 4, Township 148 North, Range 78 West of the 5th Principal Meridian, Sheridan County, North Dakota, in favor of Bennie and Irene Manz.

Hulda Rathjen is the record title owner of Lots 1 and 2, and the S 1/2NE 1/4 and the SE 1/4 of Section 4, subject to an unrecorded contract for deed in favor of Fred and Violet Bohara dated April 17, 1965. Bennie and Irene Manz, as joint tenants with the right of survivorship, are the record title owners of Lots 3 and 4, and the S 1/2NW 1/4 of Section 4 by virtue of a warranty deed dated October 2, 1956. The Manzes brought an action to quiet title to a strip of land located east of the true boundary line separating Lot 3 and the SE 1/4NW 1/4 of Section 4, and Lot 2 and the SW 1/4NE 1/4 of Section 4, as established in a 1981 survey; bounded on the west by the survey line, and on the east by a line which the Manzes alleged in their complaint "was marked by rock piles and acquiesced to for a period of over 20 years as the east boundary between the property owned by the Plaintiffs, and their predecessors in title, and the Defendants, and their predecessors in title."

Subsequent to trial the district court, sitting without a jury, quieted title to the following described real estate in favor of the Manzes, on the basis of the doctrine of acquiescence:

"Beginning at the north quarter corner of Section 4, Township 148 North, Range 78 West of the 5th Principal Meridian, Sheridan County, North Dakota; thence east along the section line 80 feet; thence southerly 520 feet to a point that is 40 feet east of the quarter line; thence southerly 220 feet to a point that is 60 feet east of the quarter line; thence southerly 240 feet to a point that is 20 feet east of the quarter line; thence southerly 230 feet to a point that is 20 feet east of the quarter line; thence southerly 530 feet to a point that is 70 feet east of the quarter line; thence southerly 135 feet to the quarter line; thence north along the quarter section line 1875 feet to the point of beginning, containing 1.95 acres, more or less."

This description, denominated by the trial court as "the property lying between the land use line and the true line," was prepared by Larry Bushey, a registered land surveyor, along with an exhibit entitled "Photogrammetric survey of the east line of land use by Manz in 1960," which was based on a July 19, 1960 aerial photograph of the disputed area. Bushey ascertained the location of the land use line by the "different colored shading between different fields" shown on the photograph. This exhibit, which we have set forth in its entirety, reveals the location of the 1960 land use line which the trial court orally found was "the line that was recognized for the period of 1930 to 1965."

Potogrammetric survey of the east line of land use by Manz

in 1960.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

These measurements were taken from the ASCS serial photograph Number BAN-2AA-7 dated 7-19-60.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Boharas assert on appeal that the trial court erred in finding for the Manzes on their claim of acquiescence. The court found as fact that:

"During the period 1930 to 1965, the actual land use line between the properties ... goes east of the true line. During that period of time, the land use line was recognized by all the owners and tenants on both sides of the line, which land use line was marked by three rock piles.

"The land use line marked by rock piles was used by occupants on both sides of the line to place rocks on and was recognized by the owners on both sides of the line as the common boundary line between the properties.

"A new highway was built in about 1962 and the approach to the new highway between the properties was placed on the land use line marked by the rock piles rather than on the true line.

"From the period of 1965 through 1976, the Defendants, Fred Bohara and Violet Bohara, continued to recognize the land use line marked by the rock piles.

* * *

* * *

"In the Fall of 1981 the Defendants, Fred Bohara and Violet Bohara, erected a fence on the true line and used the property between the true line and the land use line for agricultural purposes during the 1982 and 1983 farming seasons."

The Boharas assert that there exists no evidence of the mutual recognition by the parties of a boundary at any one location. They also assert that the Manzes failed to prove by clear and convincing evidence that the land use line referred to by the trial court and established by the photogrammetric survey, is the actual recognized boundary. The Boharas argue that the land use line is nothing more than a barrier that moves back and forth depending upon the parties' farming practices.

We discussed the doctrine of acquiescence at length in Production Credit Association of Mandan v. Terra Vallee, Inc., 303 N.W.2d 79 (N.D.1981), and concluded from a review of our prior decisions [see Trautman v. Ahlert, 147 N.W.2d 407 (N.D.1966); Bernier v. Preckel, 60 N.D. 549, 236 N.W. 243 (1931) ], that "to establish a new boundary line, it must be acquiesced in by the parties as the boundary between their lands for at least 20 years." 303 N.W.2d at 85. Both parties must have knowledge of the existence of a line as a boundary line, but knowledge of the true boundary line is not required when establishing a boundary line by acquiescence. Id. at 84.

" 'In order to establish a boundary by acquiescence, it is not necessary that the acquiescence should be manifested by a conventional agreement, but mutual recognition is necessary. Aside from this what constitutes an acquiescence or recognition of a boundary line depends on the words or declarations of the parties interested, on their silence, or, as is more frequently the case, on inference or presumptions from their conduct.' " Bernier v. Preckel, 236 N.W. at 247, quoting 9 C.J. page 246, Sec. 198. See Ward v. Shipp, 340 N.W.2d 14, 16 (N.D.1983); Production Credit Association of Mandan v. Terra Vallee, Inc., 303 N.W.2d at 84.

In applying the doctrine of acquiescence, courts have generally held that the line acquiesced in must be definite, certain and not speculative, and open to observation. 2 H. Tiffany, The Law of Real Property Sec. 654 (3rd Ed.). See, e.g., Drake v. Claar, 339 N.W.2d 844, 847 (Iowa App.1983) ["Adjoining landowners may establish a boundary line by mutually acquiescing in a dividing line definitely marked by a fence or some other manner...."]; Glover v. Graham, 459 A.2d 1080, 1084 n. 8 (Me.1983) [Obtaining title to property by the doctrine of acquiescence requires, in part, "possession up to a visible line marked clearly by monuments, fences or the like."]; Fuoco v. Williams, 18 Utah 2d 282, 421 P.2d 944 (1966) [A ditch, constantly subject to shifting or obliteration by erosion, weeds or cleaning and which was originally established by plowing two furrows down an open field for purposes of irrigation held not to constitute a boundary by acquiescence.] The claimed line must also have been recognized as a boundary, and not as a mere barrier. Terra Vallee, 303 N.W.2d at 85.

We have carefully reviewed the entire record to determine if the trial court's findings of fact regarding the mutual recognition of a boundary by the parties and their predecessors in title are clearly erroneous. See Ward v. Shipp, 340 N.W.2d at 16; Rule 52(a), N.D.R.Civ.P. A finding of fact is clearly erroneous if it was induced by an erroneous view of the law. Stee v. "L" Monte Industries, Inc., 247 N.W.2d 641, 644 (N.D.1976). In our view, the trial court has made a mistake in finding that the evidence establishes a boundary by acquiescence.

It can be gleaned from the record that in the past there existed three rock piles located east of the true boundary line, which were referred to by the parties as the north, middle, and south rock piles. Although the record is not entirely clear, at least two sloughs existed in the vicinity of the rock piles, one of which would become dry during the summer months and was capable of being hayed, and another which was normally too wet to farm. Testimony was also elicited regarding a buggy trail, trail, or road which ran between the rock piles. The trial court apparently determined that this road or trail constituted the "actual land use line" which the court found was marked by the three rock piles and recognized as the boundary by the owners between 1930 and 1965.

Bennie Manz, born in 1921, testified that his parents acquired Lots 3 and 4, and the S 1/2NW 1/4 of Section 4 in 1925. In 1947 Bennie's parents executed a trust deed which entitled Bennie to possession of the real estate and, pursuant to the terms of the trust deed, Bennie acquired the deed to Lots 3 and 4, and the S 1/2NW 1/4 of Section 4 in 1956. Bennie testified that he has been familiar with the boundary line between Lot 3 and the SE 1/4NW 1/4 of Section 4, and Lot 2 and the SW 1/4NE 1/4 of Section 4 since about 1930. He testified that the boundary line was marked by three rock piles and that "[t]hat's the way the former owners had marked it before my Dad bought it." He testified that a "buggy trail" had existed between the rock piles; the north rock pile was...