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Boundary dispute sheds light on complex issue

By: David Ziemer, [email protected]//February 10, 2011//

Boundary dispute sheds light on complex issue

By: David Ziemer, [email protected]//February 10, 2011//

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By David Ziemer
Wisconsin Law Journal

Where a property line cannot be determined by reference to the deed or original markers, courts should rely on the “best evidence available,” or what is the longest continued occupation.

The Wisconsin Supreme Court held on Feb. 3 that a century-old road is the boundary between two properties, because the road is better evidence than a recent survey suggesting otherwise.

Henn Road runs through the town of Chippewa in Ashland County. The Boerst family owns land to the east of the road, and the Opperman family owns property to the west. For nearly a century, the owners treated the road as the boundary line between the properties. However, a 2005 survey suggests the actual boundary is west of the road, which would mean that some of the Opperman property actually belongs to the Boersts.

The Boersts sued, seeking a declaration that they owned some of the land to the west of the road.

The circuit court ruled against them, holding that, even if the road is not the boundary, the Oppermans obtained title to the land by the doctrine of acquiescence.

Shirley S. Abrahamson
Shirley S. Abrahamson

The Court of Appeals affirmed in a published opinion, Northrop v. Opperman, 2010 WI App 80, 325 Wis.2d 445, 784 N.W.2d 736, and the Wisconsin Supreme Court also affirmed, in a unanimous opinion by Chief Justice Shirley S. Abrahamson.

The court acknowledged that Wisconsin law has not been consistent in dealing with obtaining property through acquiescence. The court noted, sometimes, the word is used to mean that the conduct of the parties in acquiescing to, or complying with, a boundary constitutes the best evidence of the true boundary line.

But, other times, it is used in the case law to refer to a legal doctrine: boundary by acquiescence or agreement.

The court explained the problem posed by the case law as follows: “No attempt is made to include herein an exhaustive list of the formulations, terminology, or categories used by this court in the numerous boundary dispute cases. Instead we have included a number of the more commonly used formulations to illustrate the language used in our case law to resolve boundary disputes and the historic inability of the court to consistently classify boundary disputes into doctrinal categories.”

After reviewing that case law, the court concluded that this case is most similar to those in which a survey is in conflict with a longstanding landmark, and used those cases for guidance.

The court cited Welton v. Poynter, 96 Wis. 346, 71 N.W. 597 (1897), in which the court held that, where a survey and a fence conflict, evidence of undisputed occupancy should trump the survey.

The court also cited City of Racine v. Emerson, 85 Wis. 80, 88-89, 55 N.W. 177 (1983), in which the court predicted: “The time will soon come when [the boundary line] will have been lost by the destruction of all monuments, natural or artificial, and by the death of the old inhabitants. Then resort must be had to evidence of lesser degree to establish ancient boundaries, and long-continued occupation with respect to unchanged lines, and reputation, even, may be the best evidence available.”

Finding that prediction prescient, the court announced, “The time has come in the present case to apply the rule that an ancient fence (or other landmark) may be competent evidence of the location of the boundary when original monuments cannot be found.”

Because neither party could show by clear and convincing evidence where the actual boundary line exists, the court held that the “best evidence available” is occupation.

Accordingly, the court affirmed the circuit court’s holding that the road is the boundary between the properties.

Analysis

The court’s opinion is a welcome one for clarifying an extremely muddled area of law.

Even the court’s simple acknowledgment that its prior case law is inconsistent, and summary of those cases, is welcome. Many acquiescence cases in the past have simply ignored any precedents that are contrary to the court’s holding.

Nevertheless, practitioners and lower courts will likely be frustrated by the court’s failure to explicitly overrule a single prior case, or repudiate a single holding as incorrect.

For example, the Court of Appeals in this case held that evidence of acquiescence is inadmissible where the property owners were mistaken about the boundary for less than 20 years. Nothing in the opinion expressly rejects or agrees with that holding.

There are also two separate lines of cases regarding acquiescence as a legal doctrine, as opposed to a rule of evidence. One line holds that acquiescence is a doctrine of law distinct from adverse possession, Buza v. Wojtalewicz, 48 Wis.2d 557, 180 N.W.2d 556 (1970). Another line holds that the doctrine of acquiescence is subsumed within the law of adverse possession, Burkhardt v. Smith, 17 Wis.2d 132, 115 N.W.2d 540 (1962).

But the court avoids this issue by stating, “As both parties clearly state, in their briefs and at oral argument, neither party is asserting adverse possession in this case. We therefore do not review the present case as an adverse possession case.”

The implication of this could be that adverse possession requires adverse or hostile intent. If hostile intent is not necessary, then is no reason that adverse possession could not have applied to this case.

But Burkhardt and many other cases hold that if occupation is open, continuous and exclusive, hostile intent is inferred, and adverse possession can be established by acquiescence.

By analyzing the case in the manner it did, the court seems to divorce acquiescence and adverse possession, but without explicitly repudiating Burkhardt.

The court concluded, “In sum, in determining the boundary line by evaluating the evidence of common usage and acquiescence and not by using the legal doctrine of acquiescence, the circuit court applied the correct legal analysis in the present case.”

It could be argued that this statement is a repudiation of acquiescence as a legal doctrine altogether. But the better interpretation is that acquiescence, as a legal doctrine, is merely inapplicable “in the present case,” but could still be applied in other cases.

Thus, the opinion should be read as a narrow one which is limited to boundary disputes where neither party can prove the true boundary by clear and convincing evidence.

But if one party can show that the longstanding assumed boundaries actually are the result of a mistake, this case can not only be distinguished, it will probably not even provide any guidance.

Apparently, the court thought it prudent to issue a narrow opinion, deciding just the issue before it, and leaving resolution of other thorny issues to future cases.

It’s not the purpose of this analysis to second-guess that choice. Nevertheless, real estate attorneys who had hoped the court would use this case as a vehicle to issue broad generally-applicable rules regarding acquiescence will be understandably disappointed.

Thomas D. Larson, who wrote an amicus curiae brief on behalf of the Wisconsin REALTORS Association, said he was pleased with the ultimate result, but was surprised at the limited scope. “What we wanted was certainty,” Larson said, “and I’m not sure we got it. I don’t know how the opinion will apply to other situations.”

What the court held

Case: Northrop v. Opperman, No. 09AP1559

Issue: Where a boundary line cannot be determined from deeds or original markers, what is the best evidence of the boundary line?

Holding: Common usage and acquiescence is the best evidence available.

Attorneys: For Plaintiff: Vicki Zick, Johnson Creek; For Defendants: Joe Thrasher, Rice Lake.

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