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  • WisBar News
    May 11, 2010

    Appeals court clarifies doctrine of acquiescence in boundary dispute

    May 11, 2010 – The doctrine of acquiescence is applicable even when a deed unambiguously declares the boundary line of adjacent parcels, the court of appeals held.

    In Boerst v. Opperman, 2009AP1559 (May 11, 2010), the Boersts own a section of land to the east of a road running north-south in the Town of Chippewa. The Oppermans own the section of land to the west of the road.   At the north end of both properties, the road curves and runs east-west. Landowners to the north were similarly impacted by the dispute between the Oppermans and Boersts. All parties joined the suit.

    The intersection of the north-south road with the east-west road is on the corner common to the four sections of land. The road was considered the boundary line between the properties for “almost all of the twentieth century.”

    In 2005, however, the county surveyor found a concrete monument northwest of the intersection and believed it marked the true corner to all four sections of land. The surveyor “filed a United States Public Land Survey Monument Record tie sheet establishing the monument’s location as the section corner.”

    This, in turn, shifted the true boundary line west of the north-south road. The eastern landowners filed suit against the western landowners for a declaration of a new boundary line.

    The circuit court concluded that even if the monument served as the true section point establishing boundaries, all property owners acquiesced to the road as the proper boundary line. Thus, the circuit court’s judgment established the road as the proper boundary line.

    On appeal, the Boersts argued the circuit court improperly applied the doctrine of acquiescence, citing Buza v. Wojtalewicz, 48 Wis. 2d 557, 180 N.W. 2d 556 (1970) for the proposition that the doctrine only applies to boundary disputes arising from ambiguous deeds. The dispute here, the Boersts argued, did not arise from an ambiguous deed. The appeals court rejected this argument.

    Noting that the doctrine of acquiescence substitutes “mutual acquiescence” for “adverse or hostile intent” under the adverse possession rule, the court stated that Buza merely “permits a boundary to be established by acquiescence in less time than the statutory period [for adverse possession] if the parties received their parcels from a common grantor.”

    If the deed is unambiguous, however, the parties are free to claim the true line only if the statutory period for adverse possession has not run, the court concluded. Here, it did.

    Buza does not hold, the court wrote, “that an unambiguous deed trumps mistaken boundary lines after the statutory period.” The road is the property line since the relevant parties acquiesced beyond the statutory period, the appeals court affirmed.

    In addition, the court held that under Wis. Stat. section 894.24, acquiescence to a property boundary “cannot alter the location of a section corner on a government survey.”

    By Joe Forward, Legal Writer, State Bar of Wisconsin

     



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