Home/Supreme Court of Minnesota/Markusen v. Mortensen

Markusen v. Mortensen

116 N.W. 1021, 105 Minn. 10, 1908 Minn. LEXIS 454
CourtSupreme Court of Minnesota
DecidedJune 26, 1908
DocketNos. 15,658-(104)
StatusPublished
Cited by6 cases

This text of 116 N.W. 1021 (Markusen v. Mortensen) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Markusen v. Mortensen, 116 N.W. 1021, 105 Minn. 10, 1908 Minn. LEXIS 454 (Mich. 1908).

Opinion

START, O. J.

This action was brought in the district court of the county of Lincoln for the purpose of having the boundary lines between the lands of the respective parties hereto determined. The land of all the par[11]*11ties lies in township 109, range 44, Lincoln county. The court determined the boundary lines, and judgment was entered accordingly, from which the defendant appealed.

The complaint alleged, in effect, that the plaintiff Kristen Markusen was the owner in fee and in possession of lots 1 and 2, in section 17; that the plaintiff Marie Kruse was. the owner in fee and in possession of lots 4, 5, 6, 7, and 8, in section 8; that the plaintiff Jens Nielsen is the owner in fee and in possession of lot 1 in section 18; that the defendant is the owner in fee and in possession of lots 3, 4, and 5, in section 17; that these tracts of land originally abutted upon a meandered lake lying in sections 8 and 17, the waters of which, since the government survey, have gradually receded and disappeared, leaving the bed of the lake dry land; and, further, that such tracts are the only tracts of land abutting upon the lake, and the parties hereto are the only persons interested, as owners or otherwise, in the lake bed, but they are unable to agree upon a division thereof or the proper boundaries of their respective portions.

The answer admitted that the lake had dried up and that the defendant was the owner of lots 3, 4, and 5, but put in issue the other allegations of the complaint, and alleged that he was the owner of that part ■of the bed of the lake which was in controversy by adverse possession and by a practical location by all the abutting owners of the boundary lines thereof. This was denied by the reply.

On the trial the defendant admitted that the allegations of the complaint as to the ownership of the land abutting on the lake were true. This put upon the defendant the burden of affirmatively establishing by competent evidence that he had acquired title to the part of the bed of the lake here in question, either by adverse possession or by a practical location of the boundary lines, as alleged in his answer. The trial court did not directly find upon the question of defendant's adverse possession, or whether there had been a practical location of the boundary lines by the agreement and action of the parties. The court, however, did specifically find and describe by metes and bounds the particular portion of the bed of the lake owned by each of the parties hereto by reason of his ownership of the lots abutting upon the meander line of the lake. This was necessarily a finding to the effect that neither of the claims of the defendant was sustained by the [12]*12evidence. The defendant here concedes that the division of the lake bed and the prescribed boundary lines, as made and established by the court with the assistance of a surveyor appointed to make a survey, are correct, unless the evidence establishes one or both of his claims. The question, then, for our decision, is whether the finding of the court against the respective claims of the defendant was justified by the evidence, within the rule applicable to such questions.

The law relevant to a practical location of boundary lines is substantially' stated by counsel for appellant in their brief; but the evidence to establish such location must be clear, positive, and unequivocal. Beardsley v. Crane, 52 Minn. 537, 54 N. W. 740; Benz v. City of St. Paul, 89 Minn. 31, 93 N. W. 1038. The evidence, which was conflicting, was not sufficient to bring the case within this rule, and to require the trial court to find in favor of the defendant on this question. We accordingly hold that the finding of the trial court on the claim of a practical location is sustained by the evidence.

The next question is whether the evidence was sufficient to require a finding in favor of the defendant on his claim of title by adverse possession. The lake, at the time the government survey was made, covered two hundred seventy-one acres of land. It was nearly all in the south half of section 8 and the north half of section 17, and its contour was irregular. The defendant’s lots consisted of so much of the northwest quarter and the west half of the northeast quarter of section 17 as was not originally covered by the lake. The plaintiff Markusen’s lots consisted of so much of the east half of the northeast quarter of section 17 as was not originally covered by the lake. The plaintiff Kruse’s lots consisted of so much of the southeast quarter and the south half of the southwest quarter of section 8 as was not originally covered by the lake. The plaintiff Nielsen’s lot consisted of so much of the northeast quarter of the northeast quarter of section 18 as was not originally covered by the lake. The defendant claimed on the trial that he was the owner of the whole two hundred forty acres of which his lots were a part. The trial court, however, awarded to each of the parties hereto only so much of the bed of the lake as he was entitled to by reason of his ownership of the lots abutting upon the lake, and appointed a surveyor to ascertain the center of the lake and apportion to the several lots abutting thereon their propor[13]*13tionate share of the bed of the lake, in accordance with the rule established by this court. Shell v. Matteson, 81 Minn. .38, 83 N. W. 491. The surveyor performed the duty and reported to the court the result of his survey, with a plat showing the part of the bed of the lake apportioned to each abutting lot, and its boundary lines and its area. The trial court made the plat a part of its order for judgment. The following is a copy of the plat:

Map op Meandered Lake Bed in Sections 8, 17, and 18, T. 109 N., R. 44 W., Showing- Subdivision op Lake Bed

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Cite This Page — Counsel Stack

Bluebook (online)
116 N.W. 1021, 105 Minn. 10, 1908 Minn. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markusen-v-mortensen-minn-1908.