Wojahn v. Johnson

• Decision Date: 05 September 1980
• Docket Number: No. 49828.,49828.
• Citation: 297 NW 2d 298
• Parties: Richard D. WOJAHN et al., Appellants, v. Ronald W. JOHNSON and Donna J. Johnson, Defendants and Third Party Plaintiffs, Respondents, Jerome C. GRUNDHOFER, Defendant and Third Party Plaintiff, v. Ruth BERGLUND et al., Third Party Defendants.
• Court: Minnesota Supreme Court

297 N.W.2d 298 (1980)

Richard D. WOJAHN et al., Appellants, v. Ronald W. JOHNSON and Donna J. Johnson, Defendants and Third Party Plaintiffs, Respondents, Jerome C. GRUNDHOFER, Defendant and Third Party Plaintiff, v. Ruth BERGLUND et al., Third Party Defendants.

No. 49828.

Supreme Court of Minnesota.

September 5, 1980.

Wood R. Foster, Jr., and Kent B. Hanson, Minneapolis, for appellants; Grossman, Karlins, Siegel & Brill, Minneapolis, of counsel.

Lester D. Walters, St. Paul, for respondents.

Heard before SHERAN, C. J., YETKA and WAHL, JJ., and considered and decided by the court en banc.

SHERAN, Chief Justice.

Plaintiffs brought suit for a determination of the boundary line between their property and defendants', and for a determination that a driveway running close to the boundary line had been dedicated as a public street through public maintenance and use. The Washington County District Court established the boundary line in a location favorable to defendants, and ruled that the driveway, which was held to be on defendants' property, was not a public road. Plaintiffs subsequently brought a motion for amendment of findings or for a new trial, which was denied by the trial court. The plaintiffs now appeal from the denial of their motion for a new trial and from the original judgment. We affirm in part, but reverse in part and remand for further proceedings consistent with this opinion.

Plaintiffs are the record owners of the southwest quarter of the northeast quarter of Section 8, Township 31 North, Range 20 West, May Township, Washington County, Minnesota, comprising about 40 acres. Defendants own the northwest quarter of the southeast quarter of Section 8, directly to the south of plaintiffs' land.

Plaintiffs acquired their property in 1964 from Alfred and Ruth Berglund, who had owned the property for just over three years. The Berglunds had also owned the defendants' property; the two parcels were in single ownership from at least December 22, 1960 to July 22, 1961.

The Berglunds transferred what was to become defendants' property to Jeanette and John Gilbert, Alfred Berglund's sister and brother-in-law, on July 22, 1961. The Gilberts transferred the property to John Murray by warranty deed on October 17, 1962. Murray had occupied the premises, however, since about December, 1961. The abstract discloses that Murray's mortgage was foreclosed in 1966 and title was transferred to the State Bank of St. Anthony Village. Title was subsequently transferred to My-lene Corporation in 1968. Defendants Johnson acquired the property from the My-lene Corporation on June 2, 1972.

The Washington County surveyor completed a remonumentation and survey of Section 8 in late summer 1976. This survey placed the north boundary of defendants' property somewhat to the north of a driveway leading from the western edge of 165th Street in May Township to both defendants' and plaintiffs' homes, thus locating the driveway entirely on defendants' property.

At trial, the plaintiffs claimed that the correct boundary should be adjudged further south to extend from about the middle of the disputed driveway westward. The plaintiffs claimed that the Washington County survey was invalid, or that the claimed boundary had been established by practical location or adverse possession. Plaintiffs also claimed that the driveway had become a public road through public use and maintenance. The trial court ruled against plaintiffs on each issue and ordered judgment enjoining plaintiffs from trespassing on defendants' property. Plaintiffs made several post-trial motions, which were denied by the trial court, and the plaintiffs now bring this appeal from the denial of the post-trial motions and from the original judgment.

The plaintiffs first challenge the validity of the survey by the Washington County surveyor, Paul Johnson, of Sections 7 and 8 in the relevant township, requested by defendants, and completed in late summer 1976. Two private surveys were also made specifically of plaintiffs' parcel, one by John Dwyer for plaintiffs, and another by Arthur Holm for defendants. Dwyer and Holm used the points established by Johnson in making surveys that were essentially consistent with the Johnson survey. The plaintiffs attack the methodology of the Johnson survey on essentially three grounds, contending that the survey illegally deviated from the original government survey in angles and distances between corners, that the county surveyor did not adequately investigate before determining that certain corners were "lost," and that the surveyor inappropriately used proportionate measurement techniques.

Johnson testified that his aim in resurveying Sections 7 and 8 was to reestablish the corners of the original government survey, and from those corners to plat the correct boundary lines between sections and quarter-sections. To this end he followed closely the original government field notes and drawings and relied on past records of county surveyors. He was able to find physical evidence of three of the corners of Section 8, the southeast, the south quarter, and the northeast. He was unable to find physical evidence of the other five corners of Section 8 after a preliminary study of those areas in which he felt the corners should be by field measurements and distances and a subsequent search of those areas. He admitted, however, that he did not talk to the residents of the area in attempting to find evidence of the missing corners and that the boundary line established by the reestablished corners does not correspond with existing and previous fence lines.

Johnson then reestablished the five "lost" corners of Section 8 by reference to the three known corners of Section 8, and by reference to known corners of abutting sections. To this end he used the federal method of double proportionment for establishing a lost section corner. In doing so, Johnson found that the northwest and north quarter corners of Section 8, set a few years earlier by the previous county surveyor, were in error. Plaintiff called as an expert Charles Milner, a surveyor, who testified that in locating lost corner monuments it is important to talk to older people, and that "ancient fences which have been there many years" are "helpful" in locating such lost monuments.

A trial court determination as to a disputed boundary is one of fact, and will be accorded the same deference as factual determinations in other cases. See Erickson v. Turnquist, 247 Minn. 529, 531-32, 77 N.W.2d 740, 742 (1956). Thus, for instance, when two competent surveyors disagree as to where a boundary line should be, the trial court's determination as to which surveyor is correct depends mainly on each surveyor's credibility and will not be reversed if there is reasonable support in the evidence for such a determination. Donaldson v. Kohner, 264 Minn. 230, 233, 118 N.W.2d 446, 448 (1962).¹

When a resurvey is made of sections, quarter-sections, etc., originally established by United States Government Survey, the aim of the resurvey must be to retrace and relocate the lines and corners of the original survey. Even when an original section corner is erroneously placed by an original government surveyor, it cannot be corrected by the courts or a subsequent surveyor. See Goroski v. Tawney, 121 Minn. 189, 141 N.W. 102 (1913); Anderson v. Johanesen, 155 Minn. 485, 193 N.W. 730 (1923); Minn.Stat. § 389.04 (1978). The county surveyor in fact testified that this was his aim-to reestablish the lines of the original survey. The plaintiffs, however, argue that certain discrepancies between the original government field notes and the Johnson survey in distances between corners, and in the angles used to establish those corners, prove that the Johnson resurvey differed from the original survey. However, Johnson explained this as being a difference in the accuracy of measuring devices, not as a difference in location of monuments, stating, "We * * * seldom match a dimension between known monuments of what is recorded on the original plat." The trial court should be allowed to credit this testimony, and determine that the discrepancies were due to differences in measurement accuracy and not in the actual size of the section. See also Comment, Retracement and Apportionment as Surveying Methods for Re-establishing Property Corners, 43 Marq.L.Rev. 484, 503 (1960) hereinafter cited as Marquette Comment ("Surveying is the art of measurement and not an exact science. Changes in nature generally as well as human nature preclude exact duplication of original measurements * * *.")

The plaintiffs also argue that the system of double proportionate measurement used by Johnson was invalid in the present case, citing no authority. This federal method, however, seems to have been explicitly used and sanctioned by this court in Grandt v. Town of Pokegama, 163 Minn. 368, 204 N.W. 317 (1925). Double proportional measurement also appears to be standard surveying procedure when corners marking section boundaries are lost. See Jesse E. Fant, Report on Public Land Survey in Minnesota 45-48 (February 1970) (publication of the Department of Civil Engineering, University of Minnesota).

More troubling is plaintiffs' argument that the surveyor did not make sufficient inquiry before locating lost corner monuments and did not take existing fence lines sufficiently into account. It is proper surveying techniques not to use the proportional measurement system until all efforts at finding the location of an obliterated monument by collateral evidence have failed. See United States v. Doyle, 468 F.2d 633 (10th Cir. 1972); Marquette Comment, supra at 492. In this respect a surveyor cannot totally disregard a long established and maintained boundary fence. See Wilson v. Stork, 171 Wis. 561, 177 N.W. 878 (1920). The facts of United States v. Doyle, cited by plaintiffs, however, actually support defendants' position. In that case the Tenth...