We’ve had that discussion. I want to now turn the page and discuss an aspect of acquiescence that doesn’t get a lot of air-time—acquiescence as an evidentiary tool—not merely an establishment doctrine.
Our case-in-chief this month is the fairly recent Wisconsin Supreme Court decision in Northrop v. Opperman.1 If anyone were interested in a playbook on the doctrine of acquiescence in the context of boundary surveying, this, in my opinion, is the seminal case.
In my experience as a land surveyor and an attorney, real property law in the United States of America is about as vanilla as the law can get, especially when the focus is on property boundary law. This is because much of the law in this area has been determined through judicial decisions, and because of the court’s penchant for following precedence they are generally loath to break new ground. So when a jurisdictionally novel doctrine of property law reaches the courts, especially at the appellate court level—a case that is characterized as a “case of first impression”—the court finding no precedence in its own jurisdiction will reach out to other jurisdictions to see how they have handled similar cases.
Through this kind of cross-pollination of ideas and doctrines of law and equity, property boundary law has become highly homogenized—it’s vanilla ice cream. This does not mean that jurisdictional differences do not still exist. They do and we’ve discussed many of those nuances. But by and large, the concepts expressed in Northrop v. Opperman are universal concepts applicable in other jurisdictions. And the idea that acquiescence can be an evidentiary tool is not unique to Wisconsin. I have seen it in other cases. It’s just that this particular opinion is a masterpiece of understanding in this area of the law that too many courts would rather not deal with.
The Facts in the Case
The properties involved in this action are primarily located in Sections 8 and 9, Township 41 North, Range 1 West, Town of Chippewa, Ashland County, Wisconsin. The original General Land Office (GLO) surveys of the involved sections took place in 1858. In 1886, thirty years later, the local town board condemned property for Henn Road that was to be laid out north along the common boundary between sections 8 and 9 and then west along the common boundary between sections 5 and 8. At some point the road was laid out and ostensibly built along these section lines. However, there was no hard proof of that.
Twenty years later in 1907, the town board hired the county surveyor, George Parker to retrace the section lines in this area of the county, “to run survey lines according to the government survey, or … to reestablish those corners under the general rules adopted by the government in the survey of the public lands.”2 Parker completed his survey in 1908 and he monumented the section line between sections 5 and 8 south of the then existing east-west segment of Henn Road. Litigation ensued between the owners of tracts of land in sections 5 and 8. The owners in section 5 were claiming ownership south and across Henn Road down to the section line as established by Parker. The jury returned a verdict in favor of the section 8 landowners, in essence, adjudicating Henn Road as the section line.
Not to be deterred, Parker commenced another resurvey of this same area in 1911 and completing it in 1912. This time Parker’s survey placed the same section line north of Henn Road.3 This again sent the respective landowners to court. This time the owners in section 8 were claiming ownership north and across Henn Road up to the new section line as established by Parker. Eventually the parties stipulated and agreed that the common corner to sections 4, 5, 8 and 9 was at the intersection of the north-south and east-west segments of Henn Road, “setting Henn Road as the boundary between Sections 5 and 8.”4
For almost 100 years there was peace in the valley until another surveyor came along in 2004 and in the process of re-establishing the section lines (shown in Figure 1 as the blue lines), discovered some of Parker’s 1912 monuments. Nevertheless, the surveyor filed corner record reports (also referred to as “tie-sheets”) indicating the section lines to be as depicted in blue. Not to be deterred, in 2005 the county surveyor went to the field, recovered Parker’s 1912 monuments and filed corner record reports accepting them as the true section and quarter-section corners.
The Oppermans then hired their own surveyor who apparently agreed with the blue location, “prepared an alternative tie sheet for the common corner, setting the original intersection of Henn Road as the common corner. The county surveyor did not accept this alternative tie sheet”5 even though he had apparently accepted it in 2004. As with the 1908 and 1912 Parker surveys, the 2005 survey led directly to litigation over the boundaries. This time around, Northrop and Boerst claimed ownership west and across Henn Road to the new section line as indicated by the 2005 survey.
The 2005 survey also became the catalyst for the letter the county sent out to affected landowners. That letter read in pertinent part as follows:
It has come to the attention of Ashland County, that a serious mistake has been discovered with respect to property boundaries in Sections 4, 5, 6, 7, 8 and 9, Township 41 North, Range 1 W, Town of Chippewa, Ashland County. For many years, property has been utilized and occupied based on assumptions that the Town Roads fell on the Section lines when in-fact, the Section Lines and Sections Corners are up to 100 to 400 feet off of the road centerline. This discrepancy has already led to conflicts with neighboring property owners.6 [Emphasis added.]
The Evidence in the Case
The original section corner monument for the corner common to sections 4, 5, 8 and 9 was not in existence and nobody proved its location. As the trial court put it, there was “no competent evidence” presented at trial that “determined where the original section corner monument was originally placed,”7 and no one proved that Parker’s 1912 survey was correct, let alone the 2005 survey. All of the deeds in question were aliquot part descriptions and although completely unambiguous on their face, the trial court concluded that the location of the section line dividing the property could not be determined “solely by the description in the deeds.”8 This is what is referred to as a latent ambiguity.
When there is an ambiguity in the title documents, either patent (on the face of it) or latent (not revealed on the face of the document), as to the location of the property on the ground, extrinsic evidence becomes necessary for a proper interpretation of the deed. “The circuit court therefore looked to extrinsic evidence to determine the [location of the] boundary line.”9 When it comes to the interpretation of deeds, especially with regard to the location question, many jurisdictions have said that extrinsic evidence is always in play. That’s because every description of property has a certain amount of inherent ambiguity; some, obviously, being more ambiguous than others.
The trail court determined that the centerline of Henn Road was the section line because it was the best available evidence of the true location of the section line due to the long acceptance, common usage and acquiescence to the road as the section line by the locals. Boerst appealed the judgment and the court of appeals upheld this part of the circuit court’s decision. Boerst then took his appeal to the Wisconsin Supreme Court which rendered the present opinion.
Acquiescence as an Evidentiary Tool
Boerst argued that the best available evidence of the true location of the section line was the survey of Parker in 1912 and the 2005 retracement of the Parker survey. Boerst further argued that acquiescence was not applicable in this case because it can only be used as a boundary location doctrine and “applies only to boundary disputes arising from ambiguous deeds.”10 Boerst contended that the deeds were all unambiguous and therefore, acquiescence to a mistaken line is not permissible.
In upholding the court of appeals and the circuit court, the Wisconsin Supreme Court noted that, based on the circuit court’s finding of facts and determination that the deeds were ambiguous (albeit a latent ambiguity), it had properly considered extrinsic evidence to find the best available evidence of the true location of the section line in question. And the best available evidence was the long-time acceptance (nearly 100 years) and acquiescence by the locals into Henn Road as the section line. “In sum, in determining the boundary line by evaluating the evidence of common usage and acquiescence and not by using the legal [location] doctrine of acquiescence, the circuit court applied the correct legal analysis in the present case.”11
There is way more in this opinion written by Chief Justice Shirley S. Abrahamson and in her analysis of both the doctrine of acquiescence and acquiescence as an evidentiary tool than I could go over in this short column. If surveyors had a better understanding of acquiescence as an evidentiary tool, perhaps the nonsensical surveying that resulted in three lawsuits over the same section corner could have been avoided. But then again, when has the surveying profession ever passed on an ancient controversy?
1. Northrop v. Opperman, 795 N.W.2d 719 (Wisc.2011).
2. Northrop at 721.
3. The results of the 1912 Parker survey are shown as the red lines in Figure 1. Henn Road (a.k.a. Amsler Road) originally made a 90 degree turn at the common corner to section 4, 5, 8 and 9, but over the years it became the curve that it is today. I was able to plot the red lines based on the 2005 corner record reports filed with the county. The monuments in 2005 reports are the ones set by Parker in 1912. I was able to plot the blue lines that coincide with the location of Henn Road based on earlier 2004 corner record reports which are not mentioned in the court opinion.
4. Id. at 722.
7. Id. at 723.
10. Id. at 724.
11. Id. at 729-730.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.