Smith v. Donaldson (WI)

Summary: The theory of common usage and acquiescence was insufficient and unnecessary when the parties' deeds were unambiguous in establishing the boundary line.

 

Smith v. Donaldson, 347 Wis.2d 550, 2013 WI App 55 (Wis. Ct. App. 2013).

 

Facts: Frank and Deborah Donaldson (“Donaldson”) owned a parcel of land in Government Lot 3 that is north of and adjacent to a parcel of land owned by his neighbor David and Cynthia Smith (“Smith”) in Government Lot 4. The southern boundary of Lot 3 is the same as the northern boundary of Lot 4 with the exception that the western boundary of Lot 4 extends an additional one-fourth mile beyond that of Lot 3. In June 1958, surveyor Edward Gobler surveyed Lot 3 and divided the lot into parcels. He presumably placed two iron pipes depicted in his survey along the southern boundary of Lot 3. The two iron pipes were physically located approximately sixty feet north of the government lot line.

In July 1959, Donaldson’s predecessors in title purchased the southern parcel of Lot 3. Their warranty deed made no reference to the 1958 survey or any iron pipes, but rather described the southern boundary of the parcel as occurring at the government lot line. In May 1967, Smith’s predecessors in title purchased the northern parcel of Lot 4 and their warranty described the northern boundary of the parcel as occurring at the government lot line. In June 1967, a survey of the northern parcel of Lot 4 marked the northern boundary of Lot 4 at the same iron pipes referenced above. However, the survey’s legal description of the property made no reference to the iron pipes, but placed the northern boundary at the government lot line.

In 1998, Smith purchased the northern parcel of Lot 4 by warranty deed believing the two iron pipes marked the northern boundary of Lot 4. In 2001, Donaldson purchased the southern parcel of Lot 3 by warranty deed. However, unlike his predecessor’s deed, Donaldson’s deed described the southern parcel of Lot 3 by reference to a certified map. Smith later purchased another parcel of property and realized there was an issue regarding the northern boundary of Lot 4. The issue was that the northern boundary of Lot 4 was supposed to be the same as the southern boundary of his new parcel; however, a survey placed the southern boundary of his new parcel approximately sixty feet south of what Smith believed was the northern boundary of Lot 4.

Smith hired a surveyor who opined that the iron pipes were approximately sixty feet north of the true boundary line between Lots 3 and 4. Smith sued Donaldson and after a one-day trial, the circuit court concluded that the true boundary line between Lots 3 and 4 was sixty feet south of the iron pipes. However, the circuit court, relying on Northrop v. Opperman, 331 Wis. 2d 287, conveyed the land south of the iron pipes to Smith under the theory that the court needed to look "to evidence of common usage and acquiescence" to determine where the boundary line was located. Donaldson appealed.

 

Holding: Reversed. In its decision, the appellate court distinguished this case from Northrop. The Northrup court stated that if the actual boundary line cannot be determined from the deed and original markers, it looks to the best available evidence to establish the boundary line. The Northrup court concluded that the best evidence of the boundary line was “the long occupation of the properties by the parties to the present case, their neighbors and their predecessors in title.”

The appeals court distinguished Northrop primarily in two ways. First, whereas the Northrop court had no clear and convincing evidence showing the actual location of the section line, the circuit court in this case found the actual location of the lot line between Government Lots 3 and 4. The court stated that neither Smith nor Donaldson disputed the court’s determination of the government lot line’s location. Second, in Northrup, although the parties’ deeds were unambiguous on their face, the court could not determine the location of the parties’ real estate because the court did not know the location of the section line. In the present case, the parties’ deeds unambiguously provided that Smith owns the land south of the government lot line and Donaldson owns the land north of the government lot line. Thus, the court concluded that it need not rely on extrinsic evidence as the circuit court did to establish the boundary line because the boundary line could be established from the parties’ deeds and the government lot line. In addition, the court found that the evidence provided by Smith in his argument to establish the boundary line at the iron pipes “[did] not support a determination of common usage or acquiescence based on the parties’ conduct” sufficient to give Smith title to the disputed parcel in Lot 3.

 

Opinion Year: 
2013
Jurisdiction: 
Wisconsin
Tags: 
By: ATG Underwriting Department | Posted on: Mon, 01/06/2014 - 10:47am