This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0735
In the Matter of the Application of Fischer Sand and Aggregate, LLP
Filed March 16, 2015 Affirmed Connolly, Judge
Dakota County District Court File No. 19HA-CV-09-5476
Gene Rechtzigel, Apple Valley, Minnesota (pro se appellant)
Matthew S. Duffy, Kristin L. Kingsbury, Monroe Moxness Berg P.A., Minneapolis, Minnesota (for respondent)
Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and
Connolly, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
In this appeal concerning respondent property owner’s attempt to register title to
its real property, pro se appellant, who owns abutting property and opposes the
registration, challenges the district court’s determination of the boundary line of the land
to be registered and assigns various errors to the district court. We affirm. FACTS
In September 2009, respondent Fischer Sand and Aggregate, LLP1 filed an
application to register three parcels of land under the Torrens Act, Minn. Stat. §§ 508.01-
.84 (2014). Respondent is the owner in fee simple of the two parcels referred to by the
parties and the district court as “parcel 1” and “parcel 2.” The third parcel of land is an
“orphaned” strip of land that lies west of parcel 2, referred to by the parties and the
district court as “the gap” or “the strip” parcel.2 Respondent asserted ownership of the
gap by adverse possession and sought to quiet title and register the gap along with parcel
1 and parcel 2.
The district court held a hearing on respondent’s adverse possession claim to the
gap in February 2012. Appellant Gene Rechtzigel, as well as the Evelyn I. Rechtzigel
Trust and the Frank H. Rechtzigel Charitable Remainder Trust, objected to respondent’s
quiet title and registration action in regard to the gap. Appellant was the record owner of
the land west of the gap until 1997, when he sold the land to Pulte Homes. Appellant
currently owns land adjacent to the gap. At the hearing he testified that he believes he
owns the gap and has consistently used and maintained the land as if he did own it.
The district court issued an order in April 2012. The district court determined that
neither respondent nor appellant is the record owner of the gap. It also determined that
1 The initial application was filed by Fischer Market Place, LLP but in December 2011 Fischer Market Place, LLP conveyed the land to Fischer Sand and Aggregate, LLP. 2 The gap parcel is an approximate 19-foot strip of property that was created when imperfect quarter sections (which are usually 160 acres) were laid out in the mid-1800’s, resulting in parcels larger than 160 acres. The last known record owner of the gap acquired the land in 1860, and later conveyed the land on either side of the gap, but not the gap itself.
2 respondent did not provide clear-and-convincing evidence to establish a claim to the gap
by adverse possession and denied respondent’s request to acquire title to the gap. The
district court noted that no party objected to respondent’s application with regard to
parcel 1 and parcel 2, and granted respondent’s application to register those parcels.
After the district court issued the order, appellant filed posttrial motions that
challenged the accuracy of the parcel 2 land description. Appellant argued that the true
boundary between the gap and parcel 2 is marked by an old fence line. The fence line is
approximately three feet farther east than the western boundary provided in parcel 2’s
legal description. Appellant argued that he owned the land extending to the fence line,
and challenged respondent’s application to register parcel 2 because it included land that
he believed that he owned. Although the fence line was discussed in detail during the
first hearing, it appears to us that neither the judge nor the parties realized it had an
impact on parcel 2’s registration application.
After the hearing on the posttrial motions, the district court issued an amended
order in August 2012, granting respondent’s request to modify its application3 and
reserving respondent’s application to register parcel 2. The district court judge also
assigned himself to preside over appellant’s application to register the gap and stated he
would hear evidence as to the proper legal description of parcel 2 at that time. However,
the judge later removed himself from consideration of appellant’s proposed registration
action at the request of appellant. Nearly a year passed and appellant did not perfect an
application to register the gap. On August 2, 2013 respondent moved to amend its
3 The amended application omitted any claims to the gap.
3 application and complete the registration of parcel 2. The district court granted the
motion and scheduled a hearing on the boundary line between parcel 2 and the gap.
A second hearing was held in August 2013. Respondent submitted certified
copies of warranty deeds and a report by the Examiner of Titles as evidence that it was
the record owner of parcel 2 to the full and complete legal description provided in the
application. Russell Damlo and Ray Brandt, licensed surveyors, and William Maurer, a
civil engineer, all testified that they had inspected parcel 2 and did not observe any
occupational use interfering with parcel 2’s western boundary. Damlo prepared surveys
of the land and stated that any occupational use would have been noted on a 1997 survey
completed by licensed surveyor Delmar Schwanz. He further testified that the legal
description in respondent’s registration application was consistent with the legal
description that had been used in previous surveys, deeds, and transactions involving
parcel 2.
Appellant argued that he was the record owner of the gap and that the true
boundary between the gap and parcel 2 is an old fence line. The fence is no longer intact,
although several fence posts remain. Appellant offered photographs purporting to show
the fence line. He also offered a retracement survey prepared by James Bridell, a
licensed surveyor, which claimed to establish the location of the fence line. Bridell
described the fence line as “highly obliterated.” He testified that he retraced the
obliterated fence line based on the location of the remaining posts, the elevation of the
land, his own intuition and judgment, and input from appellant. The difference between
the alleged fence line and the boundary line ranges from six inches to three or four feet.
4 Appellant further argued that the fence line was a statutory partition fence under
Minn. Stat. § 344.02 (2014). Appellant did not present any evidence concerning when
the fence was built, who built it, or why it was built. Respondent recalled Ray Brandt as
a witness and introduced an opinion letter Brandt prepared that questioned Bridell’s
methods and conclusions as being contrary to accepted surveying practices.
The district court issued an order in November 2013 that granted respondent’s
application to register parcel 2. The district court determined that respondent was the
record owner in fee simple of parcel 2. It also determined that appellant was not the
record owner of the gap, but assumed he had acquired title through adverse possession
for purposes of the boundary-line analysis. With respect to the fence, the district court
stated that it was convinced a fence did exist at some point, but that appellant did not
provide clear-and-convincing evidence as to the location of the fence line. Because
respondent established that it was the record owner in fee simple of parcel 2 and no other
party had established a legitimate claim to the property, the district court granted
respondent’s application to register parcel 2. This appeal follows.
DECISION
Appellant challenges the district court’s determination of the boundary line
between parcel 2 and the gap. He asks this court to deny respondent’s application to
register parcel 2 and find that the fence line is the true boundary between parcel 2 and the
gap.4
4 Appellant also asks that this court register the gap as Torrens land in his name. Respondent’s attempt to register the gap is not before this court, and we cannot decree
5 Although respondent did not seek a determination of boundary lines, a district
court may nonetheless fix a boundary line when title and boundary are logically
inseparable. See Application of Hofstad, 376 N.W.2d 698, 701 (Minn. App. 1985) (“[f]or
the [] court to determine ownership . . . it was necessary to fix the boundary between the
parcels.”).
Appellant’s arguments challenge the initial determination of the boundary line, the
decision not to establish a boundary by practical location, and allege that various errors
resulted in fraud on the court. We address each argument in turn.
1. Initial Determination of the Boundary Line
Appellant argues that the district court “erred in making findings and an order
unsupported by the evidence and improperly applying the law as to ‘what is the boundary
line?’” In boundary-line cases the factual findings of the district court will not be
disturbed unless “the evidence taken as a whole furnishes no substantial support for them
or where it is manifestly or palpably contrary to the findings.” Engquist v. Wirtjes, 243
Minn. 502, 506, 68 N.W.2d 412, 416 (1955) (quotation omitted). “Upon appeal the
burden is on the appellant to show that there is no substantial evidence reasonably
tending to sustain the [district] courts findings.” Gifford v. Vore, 245 Minn. 432, 434, 72
N.W.2d 625, 627 (1955).
title in a defendant in a Torrens proceeding. See State v. Minn. Power & Light Co., 246 Minn. 235, 243, 75 N.W.2d 386, 392 (1956) (“No judgment affirming title in a defendant can be rendered in [a Torrens] proceeding.”).
6 Fence Line v. Legal Description
Appellant argues that the fence line should be given priority over the line provided
in the legal description. Appellant asserts that “[c]ommon law consistently and strongly
states” that in determining boundary lines, artificial boundaries, such as fences, are given
priority over courses and distances in a legal description. Appellant’s contention is only
partially correct. The established rule is that “when identifying boundary lines, fixed and
known monuments or objects called for in a legal description found in a deed prevail over
given courses and distances; the order of application being first, to natural objects;
second, to artificial marks; and, third, to courses and distances.” Magnuson v. Cossette,
707 N.W.2d 738, 744 (Minn. App. 2006). Thus, artificial objects prevail over courses
and distances only when included in a legal description in a deed. Parcel 2’s legal
description does not contain any reference to the fence line. Therefore, the fence line is
not given priority over the courses and distances in the legal description.
Statutory Partition Fence
Appellant also argues that the fence line should control because it is a “legal and
sufficient” statutory partition fence under Minn. Stat. § 344.02. The district court
concluded that appellant’s partition fence argument failed “as being contrary to the
evidence and statute.” “The application of statutes, administrative regulations, and local
ordinances to undisputed facts is a legal conclusion and is reviewed de novo.” City of
Morris v. Sax Invs., Inc., 749 N.W.2d 1, 5 (Minn. 2008).
Appellant’s contention that the fence is a “legal and sufficient” statutory partition
fence is unsupported by the statutory requirements. Appellant bases his argument on
7 Minn. Stat. § 344.02, which lists the kinds of partition fences that qualify as “legal and
sufficient.” The subsection focuses on the height and material requirements for fences to
be valid partition fences. Minn. Stat. § 344.02. However, for a partition fence to be
enforceable against heirs and assigns the division must be “made by fence viewers under
this chapter” or “made by owners of adjoining lands, in writing, witnessed by two
witnesses, signed and acknowledged by the parties, and recorded with the county
recorder.” Minn. Stat. § 344.08 (2014). Appellant presented no evidence that the fence
was made by fence viewers or pursuant to a written and recorded agreement. Therefore,
appellant’s statutory fence argument fails.
Parcel 2’s Legal Description
Appellant argues that the legal descriptions provided by respondent are vague,
ambiguous, and cannot be used to establish the boundary line of parcel 2. “As with any
written instrument, determination of whether a certificate of title is ambiguous is a
question of law.” Matter of Zahradka, 472 N.W.2d 153, 155 (Minn. App. 1991), review
denied (Minn. Aug. 29, 1991). “A written instrument is ambiguous if it is reasonably
susceptible of more than one interpretation based on its language alone.” Id.
Parcel 2 is described as “[t]he East 50 Acres of the East Half of the Southwest
Quarter of Section 35, Township 115, Range 20 North, Dakota County, Minnesota,
excepting therefrom the North 525.00 feet of the South 615.00 feet thereof.” The
language appears to be unambiguous. Further, the apparently unambiguous meaning of
the language in the legal description was verified by two licensed surveyors. Damlo
8 testified that the description was consistent with the description used in previous surveys,
deeds, and transactions involving parcel 2.
Moreover, appellant does not argue that the language is susceptible to more than
one interpretation. He argues the legal description is ambiguous and defective because it
is inconsistent with the purported fence line. The fence line is not mentioned in the deed,
and thus has no bearing on the interpretation of the written language. Further, appellant’s
surveyor stated that in completing his retracement survey he did not survey the land
based on the deed, but rather based on where he believed the fence to be. Thus, the
conflicting opinions on the location of the boundary are not based on an ambiguity in the
language.
Appellant appears to argue that the description is ambiguous because respondent
has amended the application and legal description since filing the initial application.
However, amendments to applications “may be allowed by the court at any time upon
terms that are just and reasonable.” Minn. Stat. § 508.09. Respondent moved to amend
the application in August 2013, appellant opposed, and the district court granted
respondent’s motion because it determined it would be just and reasonable to do so. That
respondent made a permissible amendment to its application does not render it defective.
Retracement Survey
Appellant argues that because respondent did not submit a retracement survey the
registration action should have been denied “because of [respondent’s] default of
providing a correct legal description of the real boundary line on the surface of the earth.”
The Torrens Act provides that “[r]eal estate in this state may be registered under the
9 provisions of this chapter in the manner herein provided.” Minn. Stat. § 508.01.
Appellant does not cite any section of the Torrens Act, Minnesota caselaw, or Minnesota
statute that supports his argument that respondent was required to submit a retracement
survey. Because the Torrens Act does not require a retracement survey, we see no reason
that not providing one would require denial of respondent’s registration application.
2. Boundary by Practical Location
Appellant argues that the district court erred in not establishing a boundary by
practical location. The doctrine of boundary by practical location transfers title between
adjoining landowners when the disseizor can prove one of the following: (1) the
disseized, the party against whom a claim of title is made, acquiesced in a practical
boundary for a statutory limitations period; (2) the disseized (or predecessor in interest)
expressly agreed to a boundary line, and all interested parties then acquiesced in that
boundary line for a considerable time; or (3) estoppel. Theros v. Phillips, 256 N.W.2d
852, 858 (Minn. 1977). “Because the effect of this doctrine is to divest parties of
property they own by deed, the evidence establishing a boundary line by practical
location must be clear, positive, and unequivocal.” Britney v. Swan Lake Cabin Corp.,
795 N.W.2d 867, 872 (Minn. App. 2011) (quotation omitted). The burden of proof is on
the party asserting the practical boundary. Id. Findings of fact in a boundary dispute are
not disturbed unless clearly erroneous. Allred v. Reed, 362 N.W.2d 374, 376 (Minn. App.
1985), review denied (Minn. Apr. 18, 1985).
Appellant argues that he established that respondent and its predecessors
acquiesced to the fence line as the boundary between the properties. “When a fence is
10 claimed to represent a boundary line under an acquiescence theory, one of the most
important factors is whether the parties attempted and intended to place the fence as near
the dividing line as possible.” Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980).
In addition, the line must be “certain, visible, and well-known” to demonstrate
acquiescence. Beardsley v. Crane, 52 Minn. 537, 546, 54 N.W. 740, 742 (Minn. 1893).
Appellant offered Bridell’s testimony and retracement survey to establish the
location of the fence line. The district court found that Bridell’s methods included “some
guesswork and presumption” and that his testimony did not provide clear-and-convincing
evidence of the location of the fence line. It also found that “the [fence] posts were so off
kilter and bent that it would be speculation to attempt to determine exactly what position
they had been in when they were upright and in use.” The district court ultimately
concluded that there was enough evidence to establish that a fence had existed at some
point, but “the fence location is not certain.”
Based on the record, the district court’s finding that the location of the fence line is
uncertain is not clearly erroneous. Bridell described the fence line as “highly obliterated”
and relied on his intuition and judgment to retrace the line. His surveying methods and
conclusions were called into question by another licensed surveyor. The remaining fence
posts were scattered, bent, and not all made of the same material. One was discovered
buried under a few inches of soil. Multiple witnesses testified that they had inspected the
property and did not observe a fence line. The record provides ample support for the
finding that the location of the fence line is uncertain.
11 A line must be “certain, visible, and well-known” to demonstrate acquiescence in
a boundary location. Beardsley, 52 Minn. at 546, 54 N.W. at 742. The line in this case is
not certain, and only scattered posts are visible. Because the location of the fence line is
uncertain, the district court did not err in not establishing a boundary by practical
location. See Theros, 256 N.W.2d at 859 (stating that there “can hardly be an
acquiescence in a boundary line” that is uncertain).
3. Other Errors Assigned to the District Court
Appellant argues various errors committed by the district court resulted in fraud on
the court. Only the claims concerning res judicata and collateral estoppel are adequately
briefed. An assignment of error in a brief based on “mere assertion” and not supported
by argument or authority is waived unless prejudicial error is obvious on mere inspection.
State v. Modern Recycling, 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted).
Because we discern no prejudicial error, the inadequately briefed arguments are waived.
Res judicata and collateral estoppel are related doctrines. Once there has been a
final judgment on the merits, res judicata prevents parties from relitigating claims that
arise from the original circumstances, while collateral estoppel prevents parties from
relitigating legal issues that have already been adjudicated. Hauschildt v. Beckingham,
686 N.W.2d 829, 837 (Minn. 2004). A final judgment is defined as one that ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment.
T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC, 773 N.W.2d 783, 788 (Minn. 2009).
Appellant argues that the district court’s August 2012 order was a final judgment
that precludes respondent from “ever doing adverse possession on [a]ppellant again.”
12 The adverse possession ruling was limited to the gap parcel. The gap and parcel 2 have
different legal descriptions, and respondent’s attempt to register parcel 2 up to its
complete legal description did not include any land in the gap parcel. The August 2012
order reserved respondent’s application to register parcel 2; therefore it did not end the
litigation on the merits and was not final. Because there was no final judgment, collateral
estoppel and res judicata do not apply.
In sum, because respondent is the record owner of parcel 2 and the district court
did not err in determining the boundary line between parcel 2 and the gap, respondent’s
application to register parcel 2 was properly approved.
Affirmed.