Sauter v. Miller

• Decision Date: 22 February 2018
• Docket Number: No. 20170260,20170260
• Citation: 907 N.W.2d 370
• Parties: Julie Anne SAUTER, as Trustee of the Julie Anne Sauter Living Trust Dated February 12, 2014, Plaintiff and Appellee v. James MILLER and Carol Miller, Defendants and Appellants
• Court: North Dakota Supreme Court

907 N.W.2d 370

Julie Anne SAUTER, as Trustee of the Julie Anne Sauter Living Trust Dated February 12, 2014, Plaintiff and Appellee

v.James MILLER and Carol Miller, Defendants and Appellants

No. 20170260

Supreme Court of North Dakota.

Filed February 22, 2018

Allison R. Mann (argued) and Nathan M. Bouray (appeared), Dickinson, ND, for plaintiff and appellee.

Dennis W. Lindquist, Dickinson, ND, for defendants and appellants.

VandeWalle, Chief Justice.

[¶1] James and Carol Miller appealed from a judgment quieting title to certain real property in favor of Julie Sauter. The Millers argue the district court erred in finding Sauter acquired ownership of the disputed property by adverse possession, finding the boundary of the property was established by acquiescence, finding the Millers breached their contract and trespassed on Julie Sauter’s property, and awarding Julie Sauter attorney’s fees.

[¶2] We affirm the judgment on acquiescence, breach of contract, trespass, and attorney’s fees. Because we affirm the judgment on the issue of acquiescence, we do not reach the issue of adverse possession.

I

[¶3] The Millers and Julie Sauter own property with a common border in Bowman County in the southwest quarter of section 13, township 129 north, range 103 west of the 5th P.M. The parties dispute the ownership of a 55–60 foot strip of land equaling approximately two acres located on the Sauter side of the fence separating the properties.

[¶4] The Sauter property has been owned by Julie Sauter’s family since her father, Oscar Greni, purchased it in 1942. Julie Sauter personally obtained ownership of the Sauter property in 1990. Sauter transferred the property to the Julie Sauter Trust in 2014. Since taking ownership in 1990, Julie Sauter has leased the Sauter property to different parties for grazing purposes. A fence ("Original fence"), running east and west along the Sauter property and the northeast quarter of the southwest quarter of section 13, was constructed sometime before the 1960s and remained in place until it was removed by the Millers in 2014.

[¶5] Prior to taking ownership in 2013, the Miller property was owned by Kurt and Katina Heinrich. In 2012, Julie Sauter and the Heinrichs entered into a grazing lease for a two-year period expiring in 2014. However, before the lease expired, the Heinrichs sold their property to the Millers and no longer had use for the Sauter property. The Millers did not have the property surveyed prior to the purchase. Julie Sauter allowed the Heinrichs to sublease the land to the Millers for the 2013 grazing year. For the 2014 grazing season, Julie Sauter and the Millers entered into a new lease.

[¶6] In 2013, the Millers wanted to drill a water well on their property which required the land to be surveyed. The survey revealed the Original fence did not follow the actual boundary line of the two properties. The Millers tore down the Original fence, constructed a new fence on the surveyed boundary line, and drilled a water well on the disputed property.

[¶7] Julie Sauter brought an action against the Millers, and the district court quieted title to the property in favor of Julie Sauter and dismissed the Millers’ counterclaims. The district court found Sauter is the legal owner of the disputed property under the theories of adverse possession and acquiescence. The district court also ordered damages for breach of contract, trespass, and attorney’s fees in favor of Sauter.

II

[¶8] In an appeal from a bench trial, the district court’s findings of fact are reviewed under the clearly erroneous standard of review and its conclusions of law are fully reviewable. Moody v. Sundley , 2015 ND 204, ¶ 9, 868 N.W.2d 491. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all of the evidence, this Court is convinced a mistake has been made." Id. In a bench trial, the district court is the determiner of credibility issues and we will not second-guess the district court on its credibility determinations. Id.

III

[¶9] The Millers argue the district court erred because there was no proof of acquiescence by themselves or their predecessors in interest, the statutory period for possession was disturbed, and acquiescence is inapplicable because the Original fence was nothing more than a barrier.

[¶10] "The doctrine of acquiescence allows a property owner to acquire neighboring property due to an honest mistake over the location of the boundary line." Brown v. Brodell , 2008 ND 183, ¶ 9, 756 N.W.2d 779. "To establish a new boundary line by the doctrine of acquiescence, it must be shown by clear and convincing evidence that both parties recognized the line as a boundary, and not a mere barrier, for at least 20 years prior to the litigation." Id. A boundary line acquiesced in must be definite, certain and not speculative, and open to observation.

Manz v. Bohara , 367 N.W.2d 743, 746 (N.D. 1985). Moreover, acquiescence requires possession up to a visible line marked clearly by monuments, fences, or the like. Id. The burden of proving acquiescence lies with the party claiming property to the exclusion of the true owner. Brodell , 2008 ND 183, ¶ 10, 756 N.W.2d 779. "Whether there has been mutual recognition of a boundary is a question of fact, and will be reviewed on appeal under a clearly erroneous standard." Id.

[¶11] "Like its sister doctrine of adverse possession, the doctrine of acquiescence allows for the principle of tacking to reach the 20–year requirement." Id. at ¶ 9. "In the absence of a conventional agreement, mutual recognition may be inferred from a party’s conduct or silence." Id. Accordingly, "acquiescence in a boundary line is binding on the parties thereto and those claiming under them, and where successive adverse occupants hold in privity with each other under the same claim of title, the time limit for maintaining an action may be computed by the last occupants from the date the cause of action accrued against the first adverse user." James v. Griffin , 2001 ND 90, ¶ 11, 626 N.W.2d 704. "[W]hen tacking is relied upon to meet the 20–year period, it must result in a single continuous acquiescent possession." Id.

[¶12] It is undisputed Julie Sauter believed the Original fence to be the boundary line for the Sauter property for a sufficient period to satisfy the 20–year requirement. However, mutual recognition requires the Millers and/or their predecessors in interest believed so as well. Julie Sauter testified the Original fence had been in existence since she gained ownership in 1990, and the fence has always been recognized as a boundary line for the Sauter property. Julie Sauter testified prior to the Millers’ actions, nobody had ever expressed the Original fence was not the boundary line between the Sauter and Miller properties. The Millers did not offer any disputing evidence or call any previous owners to testify to the contrary.

[¶13] Because there was evidence supporting the district court’s finding of mutual recognition, and the Millers did not produce any evidence to the contrary, the finding was not clearly erroneous.

Statutory Period

[¶14] The Millers argue the district court erred in using the existence of the Original fence from the 1960s until the Millers removed it in 2014 as the determination the statutorily-required 20 years of possession was satisfied. The Millers contend the statutory period for adverse possession/acquiescence was disturbed because the Original fence was torn down prior to acceptance of service of the summons and complaint.

[¶15] The statute of limitations for quiet title actions is contained in Section 28–01–04, N.D.C.C., which provides:

No action for the recovery of real property or for the possession thereof may be maintained, unless the plaintiff, or the plaintiff’s ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action.

[¶16] A party is barred from bringing an acquiescence action if they did not maintain possession of the property within 20 years of the action. Griffin , 2001 ND 90, ¶ 12, 626 N.W.2d 704 ; see also Hageness v. Davis , 2017 ND 132, ¶ 20, 896 N.W.2d 251, cert. denied, ––– U.S. ––––, 138 S.Ct. 458, 199 L.Ed.2d 330 (2017) (recognizing the plain language of N.D.C.C. § 28–01–04 states it applies in actions for the recovery or possession of real property and held it applies in quiet title actions); Markgraf v. Welker , 2015 ND 303, ¶ 31, 873 N.W.2d 26 (acknowledging N.D.C.C. § 28–01–04 applies to adverse possession, acquiescence, and other types of quiet title actions). The 20–year period is measured back from the commencement of the action. Davis , 2017 ND 132, ¶ 20, 896 N.W.2d 251, cert. denied, ––– U.S. ––––, 138 S.Ct. 458, 199 L.Ed.2d 330 (2017) ; Griffin , 2001 ND 90, ¶ 12, 626 N.W.2d 704.

[¶17] The Millers rely on James v. Griffin , to support their claim that the 20–year period was disturbed. Griffin , 2001 ND 90, 626 N.W.2d 704. In Griffin , we decided once prior acquiescence of a boundary has been destroyed by a nonacquiescent possession, the 20–year period for establishing acquiescence begins running anew. Id. at ¶¶ 14–15. In Griffin , the nonacquiescent possession was a break in the chain of title. Id. at ¶¶ 9, 15. Because there was a break in the chain of title during the 20 years preceding the commencement of the action, possession was not continuous, and therefore, the claimant did not hold the property adversely for the statutory period. Id . at ¶ 15.

[¶18] The Millers argue the removal of the Original fence constitutes nonacquiescent possession, and under the rationale in Griffin , the statutory period for acquiescence was disturbed. However, this case is distinguishable from Griffin because the removal of the Original fence was actually the conduct that brought rise to the action. The Millers did not provide any evidence of nonacquiescent possession in...