Production Credit Ass'n of Mandan v. Terra Vallee, Inc., 9845
| Decision Date | 24 February 1981 |
| Docket Number | No. 9845,9845 |
| Citation | 303 N.W.2d 79 |
| Parties | PRODUCTION CREDIT ASSOCIATION OF MANDAN, a corporation, Plaintiff, v. TERRA VALLEE, INC., a corporation, Defendant-Appellant, and Barry Davis, Esther Davis, Defendants-Appellees, and Kenneth R. Porsborg and all other persons unknown claiming any estate in orlien in or encumbrance upon the property described in the Complaint,Defendants, Lloyd G. Lohstreter, Betty D. Lohstreter, Kenneth M. Lohstreter, and LeonaLohstreter, Intervenors-Appellees. Civ. |
| Court | North Dakota Supreme Court |
Joseph A. Vogel, Jr., Mandan, argued for defendant-appellant, Terra Vallee, Inc.
Kelsch & Kelsch, Bismarck, for defendants-appellees, Barry Davis and Esther Davis, and intervenors-appellees, Lloyd G. Lohstreter, Betty D. Lohstreter, Kenneth M. Lohstreter, and Leona Lohstreter; argued by Robert P. Bennett, Bismarck.
The appellant, Terra Vallee, Inc., appeals from the order for judgment, the judgment, and the order amending judgment entered by the District Court of Morton County which granted summary judgment to the appellees, Barry and Esther Davis and Lloyd, Betty, Kenneth and Leona Lohstreter, quieting title in them and dismissing Terra Vallee's cross claim. We affirm.
This appeal involves a misplaced quarter corner in Section 21, Township 139 North, Range 81 West of the Fifth Principal Meridian. The "old" quarter corner was established by a county survey in 1928. A subsequent private survey in 1975 revealed that the old quarter corner was 23 feet east and 26 feet south of the true quarter corner. The new (correct) quarter corner, when extended south, divides section 21 into east and west halves. The State owns a right of way running east to west through section 21. This dispute is over the strip of land which was originally thought to belong to the northwest quarter of section 21 but has now been established as belonging to the northeast quarter of section 21. This strip of land is approximately 23 feet wide and 575 feet long.
This action was originally commenced by Production Credit Association (PCA) to quiet title to auditor's lot three. Its complaint described a parcel of land whose west border line was 23 feet east and roughly parallel to the north quarter line of section 21. This lot was originally platted according to the old quarter corner. PCA's quiet title action sought only to quiet title to the parcel it had assumed it owned based upon the old quarter corner. No party opposed its assertion of ownership of auditor's lot three based upon the old quarter corner.
The Davises admitted PCA's ownership of auditor's lot three based upon the old quarter corner and crossclaimed against Terra Vallee asserting ownership to the 23-foot strip of land which Terra Vallee claimed. The Lohstreters intervened and also claimed ownership of the strip of land, as they were the title owners of the northwest quarter of section 21 and had entered into a contract for deed with the Davises, granting the Davises their interest in the northwest quarter based upon the new quarter corner.
Terra Vallee asserted that it owned the 23-foot strip of land as it was the title owner of auditor's lot two which was the entire northeast quarter less auditor's lot three. As auditor's lot three, as quieted in PCA, was based upon the old quarter corner, Terra Vallee asserts that this left the 23-foot strip of land between auditor's lot three and the northwest quarter as part of lot two. 1
The Lohstreters and Davises moved for summary judgment based upon the doctrine of acquiescence. This motion was granted by the trial court. The trial court held that it was undisputed that a fence had been erected using the old quarter corner, when extended south, as the line. The fence had been in existence since 1948 or 31 years prior to the lawsuit. Under the circumstances, the trial court held the doctrine of acquiescence to be applicable and quieted title to the strip in the Lohstreters and Davises.
Terra Vallee admitted it had not been seized nor possessed of the strip of land within 20 years. The trial court then determined that, pursuant to Section 28-01-05, N.D.C.C., 2 Terra Vallee was not entitled to defend against the Lohstreters' and Davises' cross claim asserting ownership.
Terra Vallee raises the following issues as the basis of its appeal:
1. Does a quarter corner as established by the original government survey supersede a quarter corner subsequently established by an erroneous survey?
2. Does the doctrine of acquiescence have application where the intervenors, alleging and relying upon mutual assent to establish the "old" quarter corner and quarter-section lines, subsequently sell the property using the "new" quarter corner to describe the same property?
3. Does the doctrine of acquiescence have application where both parties are mutually mistaken as to the location of a quarter corner erroneously established by a survey?
4. Does estoppel apply estopping the intervenors from establishing the "old" quarter corner as the true boundary in claiming ownership to the 23-foot strip of land pursuant to the actual and constructive notice they received in accordance with the provisions of the Survey Corner Recordation Act of North Dakota, Chapter 47-20.1, North Dakota Century Code, and the subsequent conveyance using the "new" quarter corner for the description?
5. Is the Lohstreters' quiet title action of 1953 to the W1/2 of Section 21 res judicata as to the issues involved herein?
Lohstreters assert that, pursuant to Section 28-01-05, N.D.C.C., Terra Vallee has no effectual cause of action, or defense, or counterclaim for the strip of land, as it has not been seized nor possessed of the premises within 20 years. We agree.
Terra Vallee entered into a contract for deed with Rodney and Sally Ritz in 1974 for auditor's lot two. A warranty deed was issued pursuant to this contract for deed in 1976. Terra Vallee received:
"Auditor's Lot Two (2), less Auditor's Lot Three (3), according to the replat of said Lot Three (3), of the Northeast Quarter (NE1/4) of Section Twenty-one (21), in Township One Hundred Thirty-nine (139) North, of Range Eighty-one (81) West of the Fifth Principal Meridian, and less that portion of Auditor's Lot Two (2) previously conveyed to the State of North Dakota and to Montana-Dakota Utilities Company, ..."
Auditor's lot two (lot two) is all that land in the northeast quarter of section 21 lying north of the State's right of way, less auditor's lost three. Thus by definition, lot two begins at the quarter corner located in the northwest corner of the northeast quarter of section 21.
To aid the reader, we herewith attempt to set forth a diagram of the pertinent parcels of land as they are generally situated and not to scale.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The description of auditor's lot three reads in part:
"Said tract of land being part of Auditor's Lot 2 of the Northeast Quarter of said Section 21, Beginning at the North Quarter corner of said Section 21, said point also being the Northeast (Northeast is obviously in error and should read Northwest) corner of Auditor's Lot 2 of the Northeast Quarter of said Section 21, ..." Recorded plat of auditor's lot three recorded 1965.
By description, auditor's lot three extends from the north quarter corner of Section 21, 356 feet east, thence south 839.1 feet, thence northwesterly 383.9 feet, thence north 693.55 feet to the point of beginning. The description of the land owned by Terra Vallee specifically excludes lot three. Thus, it is clear that, in reference to the old quarter corner, Terra Vallee did not have title to any land lying along the boundary between the northwest and northeast quarter of section 21. If Terra Vallee had any claim to property arising out of the erroneous survey of 1928, it was to a strip of land adjacent to the east line of auditor's lot three. Instead, they are asserting an interest in a strip of land adjacent to the west line.
When the true quarter corner was established, this did not change the land descriptions. Auditor's lot three still began at the north quarter corner of section 21 wherever that quarter corner was properly located. Terra Vallee had no title and was not seized nor possessed of the 23-foot strip within the last 20 years. Therefore, pursuant to Sections 28-01-04 3 and 28-01-05, N.D.C.C., Terra Vallee was not entitled to either maintain an action to quiet title nor to defend against Lohstreters' and Davises' quiet title action.
PCA, as owner of auditor's lot three, is the party whose title description contains the 23-foot strip of land, as the new quarter corner places the land in the northeast quarter of section 21 and the property description granted to it began at the quarter corner.
The original government survey established the location of the quarter corner. No subsequent county or private survey can change the proper location of the quarter corner. Wojahn v. Johnson, Minn., 297 N.W.2d 298, 303 (1980). Thus, the new quarter corner which is in the proper location must govern title to land, as that land is described in conveyances and the records. While the quarter corner is established, the boundary may be varied by acquiescence. Davis v. Hansen, 224 N.W.2d 4, 6 (Iowa 1974).
We affirm the trial court's determination that Terra Vallee was not entitled to maintain or defend an action quieting title in the strip of land.
In the interest of justice and judicial economy, we will now attempt to determine whether or not title to the contested strip of land should be quieted in the Lohstreters and the Davises. Dahl v. City of Grafton, 286 N.W.2d 774, 778 (N.D.1979).
The only other party which has an interest in the strip of land is PCA. PCA originally brought the present action to quiet title in itself to auditor's lot three based on the old quarter corner. This was granted and...
To continue reading
Request your trial
-
City of Deadwood v. Summit, Inc.
...required for acquisition of title by adverse possession will establish a boundary line by acquiescence." Production Credit Assoc. v. Terra Vallee, Inc., 303 N.W.2d 79, 85 (N.D. 1981) (citing Odegaard v. Craig, 171 N.W.2d 133, 137 [¶ 23.] In South Dakota, if the landowner can show both adjoi......
-
James v. Griffin
...requirement of the related doctrine of adverse possession could not be met under those circumstances. Production Credit Association v. Terra Vallee, Inc., 303 N.W.2d 79, 83-84 (N.D.1981). To establish a new boundary line by acquiescence, it must be shown by clear and convincing evidence tha......
-
Sauter v. Miller
...a boundary merely because he builds the fence upon his own property and not upon the property line. Production Credit Ass’n of Mandan v. Terra Vallee, Inc. , 303 N.W.2d 79, 85 (N.D. 1981). "The intent must have been to establish the fence as the boundary, not a mere barrier between the prop......
-
Ward v. Shipp, 10381
...based on the doctrine of acquiescence. 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). We noted that the doctrine of acquiescence evolved from the doctrine of adverse " 'The doctrine of acquiesce......