1. Introduction
a. Governing Principles
An action to determine a boundary by practical location is, in the broadest sense, an
equitable action. This type of action is properly used to resolve a dispute between private
parties as to the boundary between their lands. It recognizes the actions of landowners
and ultimately results in one landowner gaining and the other losing some part of their
adjoining parcels. By its very nature, the action to determine a boundary by practical
location gives full legal effect to the boundary as it has been practically recognized and
treated by the parties over a lengthy period. This includes the effect of transferring title
from the deed holder to the disseizor. A finding of a boundary by practical location
recognizes the actions of landowners and results in one landowner gaining and the other
losing some part of their adjoining parcels. The successful party actually becomes the
owner of what from a technical survey may well be part of the other's property. Because
of the nature of the remedy, the party claiming the boundary by practical location must
establish facts, by clear, positive and unequivocal evidence, each of the elements of their
claim. Benz v. City of St. Paul, 89 Minn. 31, 93 N.W. 1038 (1903) Despite the equitable
nature of the action, the court is not free, upon a finding of boundary by practical
location, to grant a lesser remedy, such as an easement, rather than transfer of title.
Gabler v. Fedoruk, 756 N.W.2d 725 (Minn. App., 2008)
An action to determine boundary lines is expressly authorized under Minn. Stat. §559.23,
which provides, in part: “An action may be brought by any person owning land or any
interest therein against the owner, or persons interested in adjoining land, to have the
boundary lines established; and when the boundary lines of two or more tracts depend
upon any common point, line, or landmark, an action may be brought by the owner or
any person interested in any of such tracts, against the owners or persons interested in the
other tracts, to have all the boundary lines established. The court shall determine any
adverse claims in respect to any portion of the land involved which it may be necessary to
determine for a complete settlement of the boundary lines, and shall make such order
respecting costs and disbursements as it shall deem just.”
Under Minn. Stat §508.02, an action to determine boundaries also applies to registered
property. When bringing an action to determine boundary by practical location,
Minnesota Statute Section 501.671 governs.
b. Comparison with Adverse Possession
There are a number of similarities to the legal theory of adverse possession. Like adverse
possession, the action is, in fact, a title-transferring event. The outcome is related to the
actions of the deed holder. The burden of proof is high, because the result of establishing
a boundary by practical location deprives the party claiming under the deed of his legal
rights. See, Benz v. City of St. Paul, 89 Minn. 31, 37, 93 N.W. 1038, 1039 (1903). The
acquiescence prong of the practical-location doctrine may overlap or share qualities with
some of the elements of adverse possession. The two doctrines, however, are distinct and
require proof of different elements. Denman v. Gans, 607 N.W.2d 788, 796 Minn.App.
2000), review denied (Minn. June 27, 2000).
Adverse possession requires that the claimant prove actual, continuous, open, exclusive
and hostile possession of the disputed property. For more detailed information claims of
adverse possession, please see Chapter 4. While these requirements are similar to those
for proving a boundary by practical location, there are differences between the two legal
theories particularly with respect to the actual elements which must be proven to succeed
under the theory.
Notably, while adverse possession cannot be used to claim title to land which has a
registered title, the legal theory of boundary by practical location does apply to registered
titles. See Minn. Stat §508.02. When bringing an action to determine boundary by
practical location, Minnesota Statute Section 501.671 governs. For greater detail about
claims in the registered property system, see Chapter 8.
2. Three Ways to Establish a Boundary by Practical Location
A party claiming boundary by practical location establishes the boundary in one of three ways:
(1) by acquiescence for a sufficient length of time to bar a right of entry under the statute of
limitations; (2) by an express agreement of the parties claiming the land on both sides of the line
and then by acquiescence to that agreement; or (3) by estoppel. Theros v. Phillips, 256 N.W.2d
852, 858 (Minn. 1977); Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn. 1980). While certain
elements of the claim are consistent under each of the three methods of establishing a boundary,
each contains its separate and distinct characteristics.
3. Acquiescence.
When adjoining land owners occupy their adjoining premises up to a certain line that both
recognize and acquiesce in for a sufficient length of time to bar a right of entry under the statute
of limitations, the district court may establish the boundary by practical location. The right of
entry is barred after 15 years. Minn. Stat. § 541.02. Typically, practical location by acquiescence
occurs when neighbors attempt to establish a fence as close to the actual boundary as possible, or
when the disseizor unilaterally marks the boundary, and the disseized neighbor thereafter
recognizes that line as the actual boundary. Pratt Inv. Co. v. Kennedy, 636 N.W.2d 844 (Minn.
App. 2001). When determining the existence of a boundary by practical location by
acquiescence, a district court must make no inferences or presumptions in favor of the disseizor.
Phillips v. Blowers, 281 Minn. 267, 269-70, 161 N.W.2d 524, 527 (1968).
Elements:
a. A boundary line which must is certain, visible, and well-known. Beardsley v. Crane, 52
Minn. 537, 54 N.W. 740 (1893); Fishman v. Nielsen, 237 Minn. 1, 53 N.W.2d 553
(1952). The practical boundary must be known, definite, certain, and capable of
ascertainment. Fishman v. Nielsen, 237 Minn. 1, 8, 53 N.W.2d 553, 557 (1952).
b. Implicit in the case law is the notion that the disseizor has claimed, by way of some
action, that a boundary has existed for the statutory period, and the disseized has
acquiesced to that boundary.
c. At a minimum, Minnesota cases require that a boundary line established by practical
location by acquiescence must have some type of physical demarcation.
A deed holder cannot be said to have acquiesced into a boundary which he or she cannot
identify. Similarly, there can hardly be an acquiescence in a boundary line that is
claimed to be located in several different places. There is no acquiescence when
landowners erect markers or physical barriers that are not intended to identify boundaries.
d. Both landowners have recognized the boundary.
Acquiescence exists when adjoining landowners, for example, mutually construct a fence
with the intention that the fence represents an adequate reflection of the property line. A
landowner cannot acquiesce to a boundary unilaterally. As the court explained in Pratt
Inv. Co. v. Kennedy, acquiescence exists when adjoining landowners, for example,
mutually construct a fence with the intention that the fence represents an adequate
reflection of the property line. 636 N.W.2d 844, 850 (Minn.App.2001).
e. Both landowners have acquiesced in the boundary for at least 15 years.
Acquiescence is not merely passive consent, but rather is conduct from which assent may
be reasonably inferred. Acquiescence entails affirmative or tacit consent to an action by
the alleged disseizor, such as construction of a physical boundary or other use. LeeJoice
v. Harris, 404 N.W.2d 4 (Minn. App.1987).
Boundary by practical location by acquiescence was found when parties and their
predecessors in title built dividing fence as close as possible to actual boundary and
remained satisfied with fence's location for statutory period. Fishman v. Nielsen, 237
Minn. 1, 5-6, 53 N.W.2d 553, 555-56 (1952). Similarly, the court found practical location
by acquiescence when disseizor built a parking lot on disseized's land and disseized made
no claim to ownership of land for 40 years. In the Matter of Zahradka, 472 N.W.2d 153,
156 (Minn. App. 1991) (review denied (Minn. Aug. 29, 1991).
4. Agreement
It is not anticipated that this would be a written agreement, which would be a contractual basis for
setting a boundary, rather than settling into the equitable remedy of a boundary by practical
location. Instead, the “agreement” method of proving a boundary by practical location requires
an express agreement, generally through specific discussion identifying the boundary line or a
specific boundary-related action. The parties must then acquiesce in the agreement for a
“considerable period of time.” Beardsley v. Crane, 52 Minn. 537, 54 N.W. 740 (1893). Notably
this period need not be as long as required under Minn. Stat. §541.02.
Elements
a. The existence of an express agreement between the landowners to set an exact, precise
line.
An express agreement requires more than unilaterally assumed, unspoken and unwritten
mutual agreements corroborated by neither word nor actǁ; rather, the parties must engage
in ―a specific discussion identifying the boundary line or a specific boundary-related
action. In Ruikkie v. Nall, 798 N.W.2d 806, 819 (Minn. App. 2011), the court noted that
the parties agreement to swap land in 2004 was an express acknowledgement of their
agreement as to the location of a boundary, despite the lack of an actual written
agreement. Without a specific discussion identifying the boundary line or a specific
boundary-related action clearly proving that the parties or their predecessors in interest
had agreed to a specific boundary, a boundary is not established by practical location
based on express agreement. Where adjacent landowners orally agreed on their lots'
dividing line, made measurements, placed a marker for future reference, and constructed
buildings on their lots according to the line, there was sufficient evidence of a agreement
as to the location of the boundary. Nadeau v. Johnson, 125 Minn. 365, 147 N.W.2d 241
(1914),
If mere silent understanding and tacit acceptance could support a finding of an express
agreement, an additional period of acquiescence to the agreement would be unnecessary.
Theros v. Phillips, 256 N.W.2d 852, 858 (Minn. 1977). Without a specific discussion
identifying the boundary line or a specific boundary-related action clearly proving that
the parties or their predecessors in interest had agreed to a specific boundary, a boundary
is not established by practical location based on express agreement.
A boundary by practical location through agreement is not established when neighboring
landowners, although they expressly agree on the corner dividing their lots, never agree
on an entire boundary line. Phillips v. Blowers, 281 Minn. 267, 61 N.W.2d 524, (1968).
b. Acquiescence in the agreement for a considerable period of time.
Because this agreement is not an actual contract, acquiescence in the agreed-upon
boundary must be for a substantial period of time, although not necessarily the full 15
years required under the acquiescence theory. “A considerable period of time” is not
defined in any of the court decisions, and will likely be dependent upon the specific facts
of a case. The cases are instructive, however, by way of example. In Beardsley the court
found that nine years following survey and establishment of a fence line was sufficient.
Beardsley v. Crane, 52 Minn. 537, 546, 54 N.W. 740, 742 (1893). In the Juntti case, the
court again held that 9 years was sufficient. Juntti v. Bedore (Minn. App., 2010)
Similarly, in County of Houston v. Burns, approximately ten years was sufficient. County
of Houston v. Burns, 126 Minn. 206, 148 N.W. 115.
5. Estoppel
Boundary by practical location may also be established under a theory of estoppel. Like other
estoppel actions, the claimant must have clean hands and it is necessary to establish that the party
whose rights are to be barred must have silently looked on with knowledge of the true line while
the other party encroached thereon or subjected himself to expense which he would not have
incurred had the line been in dispute.
Elements
a. The party, whose rights are to be barred, must have had knowledge of the true boundary
line and remained silent. Theros v. Phillips, 256 N.W.2d 852, 858 (1977). See also
Halverson v. Village of Deerwood, 322 N.W2d 761 (Minn., 1982).
b. The party claiming the new boundary must have acted upon the reasonable belief that the
boundary was located in the designated location.
Where, for example, inquiry was made of the deed holder as to the actual location of the
boundary between the deed holder’s land and the claimant’s land, and the deed holder
provided confirmation, and the claimant then built an improvement on the deed holder’s
land, but within the area identified as belonging to the claimant, the deed holder will be
estopped from later claiming the true line. Benz v. City of St. Paul, 89 Minn. 31, 93
N.W. 1038 (Minn., 1903)
c. The party claiming the new boundary must have relied upon the location of the boundary
to their detriment. In other words, estoppel requires knowing silence on the part of the
party to be charged and unknowing detriment by the other In Halverson v. Village of
Deerwood, 322 N.W.2d 761 (Minn., 1982), the court noted that the Village had
knowledge of the correct boundary. They also noted that the improvements made in
reliance upon claimant’s belief that they were located within the area that they owned,
while the Village made no objection and was aware of the improvements being made,
was sufficient to establish a boundary by estoppel. Notably, however, the mere purchase
of a land is not sufficient, as there is no Minnesota caselaw expressly holding that
purchasing property satisfies the detriment element of a boundary-by-estoppel claim,
uness the adjoining owner makes a specific representation as to the location of that line to
a purchaser of the property.
6. Boundary markers:
To demonstrate acquiescence in a boundary location, the line must be "certain, visible, and wellknown." Beardsley v. Crane, 52 Minn. 537, 54 N.W. 740 (1893)
i. Monuments
A variety of monuments may be placed to reflect what the parties identify as the
boundary. The claimant must take some action to demarcate an actual boundary
by erecting a barrier or making some use of the land; otherwise there is no
identifiable boundary in which the disseized can acquiesce. Pratt Inv. Co. v.
Kennedy, 636 N.W.2d 844 (Minn. App. 2001); see also, Gifford v. Vore, 245
Minn. 432, 436, 72 N.W.2d 625, 628 (1955).
In agricultural areas, plow lines can establish the practical location of the
boundaries between the fields because they reflect the abutting owners' consistent
intent to trace the two presently disputed boundary lines directly between the
accepted end points of each. Roehrs v. Rasmussen, No. A09-1354 (Minn. App.
5/11/2010) (Minn. App., 2010) (unpublished)
Not all monuments are sufficient, however, to establish a boundary. Where a
corner stake, set by the parties, to mark a corner, without additional
documentation for the balance of the boundary was not sufficient to establish a
boundary by practical location. Phillips v. Blowers, 281 Minn. 267, 161 N.W.2d
524 (1968). When the boundary line is unclear, ambiguous, or contradictory,
acquiescence in a particular boundary has not been demonstrated. Theros v.
Phillips, 256 N.W.2d 852, 858 (1977). "There can hardly be an acquiescence in
a boundary line that is claimed to be located in several different places." Id., at
859. Similarly, a driveway, which is not by its nature a boundary marker, may
not be enough to establish a boundary. Moore v. Henricksen, 282 Minn. 509,
165 N.W.2d 209 (Minn., 1968).
ii. Fences – do they help?
Fences are often recognized as indicative of a boundary. Where intended to
serve this purpose, the fence can be very useful. Fences, particularly where
installed by both parties and intended to reflect, as closely as possible, the true
boundary, have been held to be sufficient evidence of an agreement between the
parties. Pratt Inv. Co. v. Kennedy, 636 N.W.2d 844 (Minn. App. 2001). In the
Matter of Zahradka, 472 N.W.2d 153, 156 (Minn. App. 1991). The court
established the boundary by practical location after neighbors constructed a fence
as close as possible to presumed boundary and maintained fence for 24 years.
Fishman v. Nielsen, 237 Minn. 1, 53 N.W.2d 553 (1952). The fence or division
need not traverse the entire length of the boundary. See Allred v. Reed, 362
N.W.2d 374 (Minn. App. 1985). Where, however, the fence was allowed to fall
into disrepair during the period of acquiescence, the fence line was not held to
establish the boundary. Wojahn v. Johnson, 297 N.W.2d 298 (1980).
Similarly, there is no acquiescence when landowners erect markers or physical
barriers that are not intended to identify boundaries. For example, in Gifford v.
Vore, 245 Minn. 432, 72 N.W.2d 625 (1955), the court found no acquiescence
when disseizor believes line of rocks to be boundary line but never asserts it as
the boundary to adjacent landowner. Where the reason for erecting a fence was
uncertain, there was no acquiescence. Wojahn v. Johnson, 297 N.W.2d 298
(Minn. 1980). Constructing fence to restrain cattle, rather than as boundary line,
did not establish acquiescence. Weis v. Kozak, 410 N.W.2d 903, 906 (Minn.App.
1987) When a landowner unilaterally builds a fence on his own land, not
intending it to be the true boundary, an adjacent owner who has had nothing to do
with its location, construction, or use should not rely on the fence as a division
line by implied agreement or acquiescence. Roy v. Dannehr, 124 Minn. 233, 144
N.W. 758 (1914).
7. Practical Location of Boundary on Registered Torrens Property
In 2008, the legislature amended Minn. Stat. §508.02 and §508A.02 to clarify that actions for
determination of a boundary by practical location are permitted, even where title has been
registered. This applies regardless of when registration occurred. See In the Matter of The
Verified Petition of Robert L. Ruikkie v. Nall, 798 N.W.2d 806 (Minn. App., 2011). Minn. Stat.
§508.671 applies to this type of a proceeding. The courts have noted that the registration of title
to land does not in and of itself eliminate questions of survey or boundary. For greater detail
related to the Torrens Proceedings, please see Chapter 8.
8. Practical Location Versus Public Body
A municipality, like a private owner, may be estopped. Bice v. Town of Walcott, 64 Minn. 459, 67
N.W. 360 (1896). As a result, under appropriate circumstances, a boundary by practical location
may be determined against a public body. Each case, however, will be very fact specific. The
facts themselves must be clear, positive and unequivocal in their implications. Eliason v.
Production Credit Association of Aitkin, 259 Minn. 134, 106 N.W.2d 210 (1960). The doctrine
of estoppel is not applicable to municipal corporations as freely and to the same extent that it is to
individuals. When it is applied, the basis of application is usually not because of the nonaction of
the officers of the municipality, but because they have taken some affirmative action influencing
another, which renders it inequitable for the corporate body to assert a different set of facts.
Village of Newport v. Taylor, 225 Minn. 299, 30 N.W.2d 588 (1948). The reason for this
additional requirement is that the “rights of the public are seldom guarded with the degree of care
with which owners of private property guard their rights, and, consequently, acts or omissions
which might weigh heavily against private persons cannot always be given the same force against
the public.” Parker v. City of St. Paul, 47 Minn. 317, 318-19, 50 N.W. 247, 248 (1891).
Furthermore, since, streets and the like are often laid out on land acquired for or dedicated to such
purposes with reference to future as well as present requirements, it is not reasonable to assume
that the property has been abandoned merely because it has not yet been used by the public. Id.
In Halverson v. Village of Deerwood, there were several affirmative actions, which the court used
to determine that it was appropriate to determine a boundary by practical location: (1)
Deerwood's power pole servicing the Halverson home is on the platted street; (2) the Halversons
have paid over $6,000 in property taxes on their home; (3) Deerwood provided water and sewer
service to the Halversons; and (4) the mayor of Deerwood in 1958 informed the Halversons that
no building permit was needed and that the construction could proceed. Halverson v. Village of
Deerwood, 322 N.W.2d 761 (Minn., 1982).
9. Does Practical Location Require Something Affirmative?
10. Judicial Determination of Torrens Boundaries
As noted above, the registration of title to land does not in and of itself eliminate questions of
survey or boundary. Once the district court issues an order judicially determining boundaries, the
registrar of titles enters a memorial on the certificates of title to the adjoining lands showing
which boundary lines have been determined. In the Matter of The Verified Petition of Robert L.
Ruikkie v. Nall, 798 N.W.2d 806 (Minn. App., 2011). Such subsequent action for determination
of boundaries does not constitute an impermissible attack on the Torrens system. In re Hauge,
766 N.W.2d 50, 55 (Minn.App.2009).
11. Expert Opinion
While not strictly required, expert testimony can be useful. Evidence from licensed surveyors
will greatly aid in understanding the relative locations of the boundary lines identified and
recognized by the parties, as well as those reflected in the recorded deeds. In interpreting
surveys, particularly competing surveys, the court’s determination as to which surveyor is correct
depends mainly on each surveyor’s credibility. Wojahn v. Johnson, 297 N.W.2d 298, 305 (Minn.
1980). Among other considerations, the court must evaluate a surveyor's credibility by the
degree of adherence to government rules, standards, and precedent; the quality and accuracy of
his or her factual reports about the land; and his or her capacity to fill in the gaps left by
applicable rules with good judgment and sound discretion. In the Matter of The Verified Petition
of Robert L. Ruikkie v. Nall, 798 N.W.2d 806 (Minn. App., 2011). That being said, it is
important to recall that a boundary clearly and convincingly established by practical location may
still prevail over the contrary result of a survey. Phillips v. Blowers, 161 N.W.2d 524, 281 Minn.
267 (Minn., 1968).