Case of the Day – Tuesday, December 14, 2021

GOOD FENCES MAKE GOOD NEIGHBORS…

… or so one of my favorite poets, Bob Frost, said. The flinty old New Englander wrote a lot of good, straightforward stuff (my favorite being The Pasture), but you need to know that this particular line about fences was written as a wry observation. Frost didn’t believe it, and he intended that his readers question it, too.

Today’s neighbors are living proof of that. Lyle and Kate Batton had lived next to Dan and Kathy Bylander for 13 years, and the factual recitation in the case makes it pretty clear that they were good neighbors to each other. There was a property line between their homes. Of course. There always is. But it wasn’t very important to them.

Instead, the friendly neighbors freely used each other’s properties, even giving each further permission to plant trees on the other’s properties. In fact, they did not really know for sure where one property ended and the other began. It seems that the Bylanders and the Battons had differing ideas about who owned what, but they were good neighbors. The technicalities of ownership were not that important.

But at last, the Bylanders moved out, and the Hawks moved in. The Hawks felt the need for a fence to separate themselves from the Battons, and that’s when the neighbors ceased to be good.

As Bobby observed, “Something there is that doesn’t love a wall.” That something apparently was Lyle Batton. And who can blame him? For 13 years, Lyle and Kathy lived in unfenced harmony with Dan and Kate. At any rate, at some point after the fence was installed, tempers frayed and Lyle exchanged sharp words with new neighbor Terry Hawk. And that’s when everything changed.

The Hawks demanded every inch of the land their surveyor said was theirs. The Battons demanded damages, and wanted the court to declare that their occupation of some of the disputed land over the years made it theirs.

The lawyers profited, and the neighbors – both sets – lost.

Batton v. Hawk, 2019 Minn. App. Unpub. LEXIS 1133 (Ct.App. Minn. Dec. 9, 2019). Lyle and Katherine Batton bought land in Thief River Falls 19 years ago. At the time, they shared their southern boundary line with Daniel and Kathy Bylander.

During the time that the Battons and Bylanders were neighbors, neither knew where the exact boundary line existed between their properties, but they did not much care – they were friends as well as neighbors. The Bylanders planted evergreen trees on what they believed was their property on the western side of their northern boundary line, which they thought was about eight to ten feet north of the line of evergreen trees. They mowed the area like it was theirs, because they figured it was.

At the same time, the Battons planted various trees along what they believed was their southern boundary line in the eastern part of the land, up to the edge of the Thief River. A second tree line, made up of about 12 spruce trees, sat north of the Bylanders’ home on the west side of the adjoining properties and acted as a windbreaker for their house. The Battons gave the Bylanders permission to plant more trees along the line.

Then disaster struck. After 13 years, the Bylanders sold their property to Terry and Dawn Hawk. The next year, the Hawks wanted to build a fence along the northern line of their property. The Hawks talked to the Battons about the property line, and the Battons explained that they believed it was along the tree line.

Trust but verify. The Hawks hired Houston Engineering to survey the boundary line. Houston found the Battons’ understanding of the boundary line was wrong, as the boundary line went through, or was very close to, the southeast corner of the Battons’ house.

Lyle Batton and Terry Hawk then met with a Houston Engineering surveyor to discuss establishing a new boundary line. The new boundary line ran 13½ feet north of the original boundary line, increasing the size of the Hawks’ property. The surveyor labeled this “Tract A.” Tract A included the wind-breaking tree line that sat north of the Hawks’ home. On the east end of the properties, the new boundary line was 25 feet south of the original boundary line and would become the Battons’ property. The surveyor labeled this “Tract B,” which included an area south of the Battons’ home. Tract A is .021 acres, and Tract B is .326 acres. The parties agreed that Tract A would become the Hawks’ land and Tract B would become the Battons’ land. After the meeting, surveyors from Houston Engineering placed markers along the new boundary line.

So the Hawks began to build a fence near the markers placed by the surveyors. At the Battons’ request, the Hawks built the fence directly on the new boundary line, and gave the Hawks permission to enter their land to maintain the fence. According to the Battons, when Terry was finishing the eastern part of the fence, they realized that the markers placed by the surveyors were not in the correct spots and that the Hawks’ fence was “maybe a few inches up to many feet” north of what the Battons believed was the new boundary line.

The Battons also complained that the Hawks cut down four of their spruce trees on the western side of their property in order to build the fence. The Hawks countered that maintained that when the Hawks were building the fence, several trees fell down due to a heavy storm.

Following a hostile confrontation between Lyle and Terry in July 2016, the Battons sued the Hawks, asking the district court to order the parties to exchange deeds to Tract A and Tract B, to determine the practical boundary line of the property, and to rule that the Battons had adversely possessed some of the Hawks’ property, and therefore owned it. But the Battons’ complaint had a typographical error and, instead of requesting that the district court determine they had adversely possessed Tract B, they requested Tract A, which was already part of their property by deed.

The Hawks answered that the parties had discussed exchanging deeds to the tracts of land, but that they had never come to an agreement to exchange the deeds. The Hawks counterclaimed that the Battons had trespassed on their land and had damaged their property by removing the survey markers, and also that had relied on the Battons’ promise to grant them an easement.

The district court held a bench trial. At the end of the trial, the Battons amended their complaint to indicate that they adversely possessed Tract B, not Tract A, and the hey also moved to amend further to state that they adversely possessed the land that extended from Tract B to the middle of the tree line.

The district court held that the Battons failed to establish their claim for adverse possession, because they did not show that they openly and continuously possessed the rest of the land that they claim north of the tree line, failed to establish a claim for boundary by practical location, and did not show that the four removed trees belonged to the Battons.

The Battons appealed.

Held: The Battons did not get any land by adverse possession, or get a declaration that the old supposed boundaries governed.

A party can become the titleholder of land by adverse possession. To show adverse possession, plaintiffs must show, by clear and convincing evidence, that their possession was actual, open, continuous, exclusive, and hostile for 15 years. Evidence presented in support of adverse possession must be strictly construed, with every presumption or inference to be taken against the party claiming adverse possession.

The district court found that the Battons had not established open, hostile, and continuous use of all of the land. Such use must give “unequivocal notice to the true owner that someone is in possession in hostility to his title.” There is sufficient evidence when “visible and notorious acts of ownership have been continuously exercised over the land for the time limited by the statute.”

The Battons and the Hawks had different understandings of where the boundary line fell. The Battons treated the tree line as the boundary, while the Hawks (and the Bylanders before them) treated the boundary line as 8-10 feet north of the tree line. Before the Hawks moved in, the Bylanders mowed up to that line and, when the Hawks moved in, the Bylanders instructed them to continue to mow up to that line. While the Battons and the Hawks testified that they used the land for other purposes, there is no dispute that the Bylanders and the Hawks mowed part of the disputed land. “For that reason alone,” the Court ruled, “we cannot conclude that the Battons gave the Hawks unequivocal notice of their hostile possession of all of the disputed land.”

The Battons also testified that they used the disputed land for fishing, playing Frisbee and soccer with their kids, planting a garden and trees, and placing birdhouses and bird feeders. They said that they treated the disputed land as their own because they planted a garden, except that neither of them could not remember how long it was there. Lyle testified that he placed birdhouses and bird feeders on the disputed land, but all had been removed several years before the trial. Because the evidence supporting adverse possession must be strictly construed, the Court said, “the district court’s finding that the Battons’ use of the land was simply occasional is not clearly erroneous.”

The Battons also argued that they had proven a boundary line by practical location. A boundary by practical location may be established in one of three ways: (1) by acquiescing in the boundary for a sufficient period of time to bar a right of entry under the statute of limitations; (2) by expressly agreeing with the other party on the boundary and then by acquiescing to that agreement; or (3) by estoppel.

The Battons argued that they established a boundary by practical location by acquiescence. If a party acquiesces in a boundary for a sufficient length of time to bar a right of entry under the statute of limitations (15 years in Minnesota), a court may establish the boundary by practical location.

The district court did not expressly address whether they had established a boundary by acquiescence. But the judge did note that there must be acquiescence to a boundary line for the statutorily required 15 years in order to be established as a boundary by practical location. Because the Hawks had not lived in the home long enough to meet the 15-year requirement, the Court looked to their predecessors, the Bylanders.

But the Battons and Bylanders treated the boundary line differently. While the Bylanders believed the boundary was eight to ten feet north of the tree line, the Battons believed the boundary was along the tree line. The disputed 8-10 feet showed that the parties did not acquiesce to a boundary line. Instead, they apparently agreed to disagree, but they maintained the peace despite their disagreement.

Thus, the Court said, the Battons failed to establish a boundary by acquiescence.

Finally, the Court observed that the district court had concluded that it could not determine if the four trees were on the Battons’ land. Based on this inability, the district court did not award them treble damages for trespassing and felling under Minn. Stat. § 561.04. Lyle testified that the Hawks cut down four trees that were on the Battons’ land in order to erect their fence. The Hawks, on the other hand, said that during the summer of 2015, a storm downed some trees and the Hawks removed them from the property. Terry denied cutting down any trees north of the fence line.

Because the district court sits in the best position to weigh the credibility of witnesses, the Court of Appeals ruled, “we are not left with the firm conviction that, based on the conflicting testimony, the district court made a clear error.”

– Tom Root