Ward v. Shipp, 10381

• Decision Date: 31 October 1983
• Docket Number: No. 10381,10381
• Citation: 340 N.W.2d 14
• Parties: Logan WARD, Hazel Ward, Michael Ward, David Ward and Lucinda Ward, Plaintiffs, Appellants and Cross-Appellees, v. George E. SHIPP, Pearl A. Shipp, Defendants, Appellees and Cross-Appellants, Albert Dauenhauer and Elaine Dauenhauer, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 14

340 N.W.2d 14

Logan WARD, Hazel Ward, Michael Ward, David Ward and Lucinda Ward, Plaintiffs, Appellants and Cross-Appellees, v. George E. SHIPP, Pearl A. Shipp, Defendants, Appellees and Cross-Appellants Albert Dauenhauer and Elaine Dauenhauer, Defendants and Appellees.

Civ. No. 10381.

Supreme Court of North Dakota.

Oct. 31, 1983.

As Corrected Nov. 9, 1983.

Eaton, Van de Streek & Ward, Minot, for plaintiffs, appellants and cross-appellees; argued by Michael Ward, Minot.

Bair, Brown & Kautzmann, Mandan, for defendants, appellees and cross-appellants George E. and Pearl A. Shipp; argued by Malcolm H. Brown, Mandan.

Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, for defendants and appellees Albert and Elaine Dauenhauer; appearance by Patrick A. Conmy, Bismarck.

PEDERSON, Justice.

The Wards appeal from a judgment dismissing their action seeking to quiet title to a tract of real estate, quieting title instead in the Shipps; and from an order denying their motion to amend the judgment. The Shipps have cross-appealed. We reverse and remand.

The Ward and Shipp families have owned adjacent tracts of farmland north of Bismarck for many years. Over 40 years ago, the families built a wire fence to separate their properties. The Wards farmed the land on the east side of the fence until 1980. In 1980, George Shipp had his land surveyed in contemplation of a sale of his land to the Dauenhauers. The survey established the true quarter line to be, at varying points, 45 to 70 feet east of the old fence line. Shipp subsequently removed the old fence and built a new fence on the true quarter line.

The Wards brought this action to quiet title to the narrow strip of land between the old fence line and the new fence. The trial court concluded that the Wards had established ownership of the narrow strip by a boundary line agreement, but held that they had failed to adequately describe the property to allow the court to quiet title. The court then quieted title in the Shipps.

The Wards contend that the property was sufficiently described, that the court erred in refusing to allow additional time for the arrival of a witness, and that the court erred in quieting title in the Shipps. The Shipps contend ¹ that the court erred in finding that the Wards had established ownership of the property based on a boundary line agreement (the doctrine of acquiescence.)

We will first address the issue raised by the Shipps whether or not the court erred in finding that the Wards had established ownership of the property 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 possession:

" 'The doctrine of acquiescence is a supplement to the older and harsher rule of adverse possession which held that adverse intent was the first prerequisite of adverse possession. This meant that in order for the adverse possessor to start the 20-year period running, he must commence his possession with knowledge that the land he was encroaching upon was not his and with an intent to dispossess the true owner. This meant that one who occupied part of his neighbor's land, due to an honest mistake as to the location of his boundary, could never start the statute running because he never formed the requisite adverse intent.

" 'The harsh result of this rule soon became apparent in many jurisdictions and courts began to hold that land could be acquired by adverse possession, even though adverse intent was absent, if the true owner acquiesced in such possession for a period of 20 years.' "

Id. at 83-84 [quoting from Buza v. Wojtalewicz, 48 Wis.2d 557, 180 N.W.2d 556, 559 (1970) ].

The Shipps contend that the old fence was merely intended to be a barrier between the properties, not a boundary, and that the doctrine of acquiescence therefore has no application. The Shipps point to the following language in Terra Vallee, supra, to support their claim:

"An owner of property does not acquiesce in a fence as a boundary merely because he builds the fence upon his own property and not upon the property line. The intent must have been to establish the fence as the boundary, not a mere barrier between the properties."

Production Credit Association of Mandan v. Terra Vallee, supra, 303 N.W.2d at 85 (citations omitted).

The trial court in the instant case found as fact that the fence, when erected in 1941, was intended by the Wards and the Shipps' predecessor owner ² to be the boundary between the properties, not merely a barrier. There is sufficient evidence in the record to support this finding and accordingly it is not clearly erroneous. Rule 52(a), N.D.R.Civ.P.

There is also ample evidence that the Shipps acquiesced in the old fence as the boundary for a period of nearly forty years. At no time prior to 1980 did the Shipps protest the use of the land by the Wards. Acquiescence may be found from a party's silence, or inferred from his conduct. Production Credit Association of Mandan v. Terra Vallee, supra, 303 N.W.2d at 86; Bernier v. Preckel, 60 N.D. 549, 236 N.W. 243, 247 (1931). Thus, the court did not err in concluding that the Wards had established ownership of the narrow strip in dispute based on the doctrine of acquiescence.

We will next consider the issues raised by the Wards. The Wards first contend that the court erred in concluding that the property was insufficiently described. The amended complaint describes the property as follows:

"East Half of Section 11, Township 139 North, Range 81, West; and any portion of the following property that is to the east of the fence line which had existed for a number of years prior to the new fence which was recently constructed about 60 feet East of the old fence line which marked the boundary between the above described property and the following:"

Section 32-17-04, N.D.C.C., requires that in an action to quiet title "the property must be described in the complaint with such certainty as to enable an officer upon execution to identify it." The Shipps did not challenge the sufficiency of the complaint by pre-trial motion. Under our liberal rules of pleading, the Wards could have moved to amend their complaint to more adequately describe the property in light of the evidence adduced at trial. The difficulty in that, however, is that the Wards failed to produce evidence at trial to sufficiently identify the disputed property.

We are thus presented not with a defect in pleading, but rather with a failure of proof. The Wards never had the narrow strip of land surveyed, and the only evidence presented at trial as to the dimensions of the disputed strip were conflicting estimates by plaintiffs' witnesses. A reference to the "old fence line" is insufficient, without more, to adequately describe the property. See Odegaard v. Craig, 171 N.W.2d 133, 136 (N.D.1969). Under these circumstances, we agree that the Wards failed to prove the dimensions of the strip of land in dispute.

As the trial progressed, it became apparent to Wards' counsel that the court was concerned about the lack of evidence of the exact description of the strip of land in dispute. Counsel therefore sent David Ward, one of the plaintiffs, out to obtain the measurements. The testimony concluded, and David Ward had not yet returned. The trial court granted a fifteen minute recess, and when David Ward had still not returned, the court refused to allow any further delay and the trial concluded.

The trial court's memorandum opinion ordering dismissal of the Wards' action cites the failure of proof of the exact dimensions of the land as...