Court Cases, Statutes and Materials All Surveyors Should Understand

Court Cases, Statutes and Materials All Surveyors Should Understand Presented by: Dennis Pederson- Bogart, Pederson and Associates Becker,MN and David Meyers- Rinke Noonan Law Firm St. Cloud, MN The North ½ of the Northwest ¼ of Section 25, Township 34, Range 20, Chisago County, Minnesota, excepting however, two acres, more or less, in the Northwest corner of the Northwest ¼ of the Northwest ¼ of said Section 25, described as follows: Commencing at the Northwest corner of Section 25; thence south 30 rods to the intersection of road leading from county road at or near Charles Magnuson s Place in Sunrise City; thence along the center of the road to where the road crosses the section line; thence along the north line of said section, 24 rods to the Northwest corner of the Northwest 1/4 of the Northwest ¼ of the place of beginning. 1

Commencing at a stake on the west bank of the Minnesota River in Nicollet County, nearly opposite the residence of M. Mills, Esqr., in the South West Quarter of (Section... Township... Range...), said stake stuck by Evans Goodrich on the 22 nd day of November A.D. 1856 (date of the Deed), thence running... containing 67 acres and 132 rods of land. City of North Mankato v. Carlstrom, 212 Minn. 32, 2 N.W.2d 130 (1942); Legal description is sufficient if a surveyor can locate the land and boundaries. Descriptions do not identify the land, but furnish the means of identification (historic) Description, with extrinsic evidence, may be sufficient if a Surveyor can locate the land and the boundaries on the ground. City of North Mankato v. Carlstrom, 212 Minn. 32, 2 N.W. 2d 130 (1942) 2

What is a Legal Description? Historic? The purpose of a legal description is to help the surveyor locate the land on the ground. Today? The legal description defines the land. - Deed Staker 3

What is the difference between: Marketable title Insurable title Slindee v. Fritch Investments, LLC, 760 N.W. 2d 903 (Minn. App. 2009); Boundary Agreement, alone, does not convey title. Need Deed Exchange 4

Willhite v. Cass County Board of Supervisors, et al., 692 N.W.2d 92 (Minn. App. 2005); 2 - year Statute of Limitations for surveyors begins to run when owner discovers the error in survey (owner gets new survey) 5

10 year Statute of Repose, Minn. Stat. Sec. 541.052. Expires 10 years after date of survey. First surveyor relied upon existing South Corner. Second surveyor reset South Corner as obliterated, and North Corner as lost. Court would not reopen prior adverse possession case. Statute of Limitations/Warranty Deed 6 years Minn. Stat. Sec. 541.05, Breach of Warranty of Title starts when title fails or when title is challenged. 6

3rd parties successful assertion of an interest in real estate starts 6 year time. Roth v. Weir, 690 N.W. 410 (Minn. 404, 116 N.W. 931 (1908). Brooks V. Mohl, 104 Minn. 404, 116 N.W. 931 (1908). Failure to include a permanent easement causes immediate damages and starts 6 year Statute of Limitations. Simda v. Isanti, Pine Tree Farm, LLC (2015) Hebert v. City of Fifty Lakes, 744 N.W.2d 226 (Minn. 2008); Adverse possession type claims, public or private, do not apply to Torrens title. 7

Boundary by pertinent location may apply to Torrens. Minn. Stat. Sec. 508.02. Payment of Real Estate Taxes in Adverse Possession Except for a Boundary, possession for 15 years, and payment of Real Estate taxes for 5 consecutive years is required, Minn. Stat. Sec. 541.02. Statute of Frauds - Minn. Stat. Sec. 513.05 Must have written agreement for transfer of interest in land or lease for more than one year. A description, aided by outside evidence, is sufficient. Lower standard than Marketable Title. 8

Unpublished case Granlund v. Lumley, No. All 1926 (Minn. App. Sept. 17, 2012); Granlund v. Lumley, No. A06-970 (Minn. App. May 15, 2007) Unpublished case is not precedential; Minn. Stat. Sec. 480A.08 (3). - There is no claim against a surveyor hired by the neighboring landowner to establish a boundary. - When 2 competent surveyors disagree, the matter must be determined by trial. Trespass, State v. Kremmin, N.W.2d (Minn. App. 2017), owner must be on land, must command trespasser to leave and not return, Minn. Stat. Sec. 609.605. 9

Ruikkie V. Nall, 798 NW 2d 806 (Minn. App. 2011) When 2 competent surveyors disagree, court determines credibility by surveyors degree of adherence to government rules, and surveyor capacity to fill in gaps with good judgement and sound discretion. Practical location of boundaries may not change original government survey maps. If government survey map is in error, court may determine a fix. 10

2016 Real Property Law Section Guidelines for legal descriptions and survey matters. These guidelines are not title standards, but rather a set of tools available to an attorney to resolve issues that may arise when reviewing a legal description or survey. They seek to summarize key elements of both law and scholarly works pertaining to specific issues which may arise. In some instances, they are based upon generally accepted survey practices. The guidelines are intended to make available to an attorney a starting point for analyzing a legal description or survey. 11

Ambiguities 1.1 For purposes of determining if title is marketable, an examiner may disregard an ambiguity in a legal description if it can be resolved with reference to recorded evidence. Authorities: Bank of Ada v. Gullikson, 64 Minn. 91, 94, 66 N.W. 131, 132 (1896) City of North Mankato v. Carlstrom, 212 Minn. 32, 2 N.W.2d 130 (1942) See also Mattson Ridge, LLC v. Clear Rock Title, LLP, 824 N.W.2d 622 Minn. 2012) Note: A legal description provides constructive notice if the property can be identified with reasonable certainty or if it is apparent from the record that there is mistake in the description. See Title Standard No. 64 for discrepancies in plat names. Compare: For purposes of the statute of frauds, a legal description is sufficient if the land described can be located by a competent surveyor. A deed will not be declared void for uncertainty in its description if it is possible by any rules of construction to ascertain from the description, aided by extrinsic evidence, what property is intended to be conveyed. Paynesville Land Co. v. Grabow, 160 Minn. 414, 200 N.W. 481 (1924); Dittrich v. UBL, 216 Minn. 396, 13 N.W.2d 384 (1944); Daly v. Duwane Construction Company, et al., 259 Minn. 155, 106 N.W.2d 631 (1960). 2. Government Surveys 2.1 Government corners are where they were placed by the Government Surveyor. Inconsistencies in an original Government survey may be reconciled in accordance with rules, regulations and standards established by the Federal and State Government, and judicial precedent, but cannot be corrected by the courts. Authorities: Minn. Stat. 389.04 43 U.S.C. 752 Chan v. Brandt, 45 MN 93, 47 N.W. 461(1890) Beardsley v. Crane, 52 Minn. 537, 54 N.W. 740 (1893) Lawler v. Rice County, 147 Minn. 236, 180 N.W. 37 (1920) Ruikkie v. Nall, 798 N.W.2d 806 (Minn. App. 2011) 2009, Manual of Surveying Instructions, U.S. Department of Interior, BLM. 1 Patton and Palomar on Land Titles 116 (3 rd ed. 2003) 12

3. Priority Given to Original Monuments 3.1 Original monuments placed as part of the original Government survey or a subdivision plat, if located, control over courses and distances, and over field notes. Located, original monuments control a resurvey of the original Government survey or of a subdivision plat. Authorities: Turnbull v. Schroeder, 29 Minn. 49, 11 N.W. 147 (1882) Lawler v. Rice County, 147 Minn. 236, 180 N.W. 37 (1920) Molkenbur v. Salmon, 160 Minn. 244, 199 N.W. 966 (1924) Dittrich v. UBL, 216 Minn. 396, 13 N.W.2d 384 (1944) 4. Obliterated or Lost Corners in Government Survey or Subdivision Plat 4.1 An obliterated corner is one at whose point there are no remaining traces of the monument, but whose location has been perpetuated, or which may be ascertained by competent evidence if clearly and satisfactorily so established. Extrinsic and parol evidence may be used to replace an obliterated Government or plat corner. 4.2 A lost corner is a point of a survey whose position cannot be determined by substantial evidence and whose location can only be restored by reference to one or more interdependent corners. Proportionate measure may be used to relocate a lost Government or plat corner. Authorities: Turnbull v. Schroeder, 29 Minn. 49, 11 N.W. 147 (1882) Beltz v. Mathiowitz, 72 Minn. 433, 75 N.W. 699 (1898) Grandt v. Town of Pokegama, 163 Minn. 368, 204 N.W. 317 (1925) Dittrich v. UBL, 216 Minn. 396, 13 N.W.2d 384 (1944) Wojahn v. Johnson, 297 N.W.2d 298 (Minn. 1980) 2009 Manual of Surveying Instructions, U.S. Department of Interior, BLM. 7-2 and 6-17 1 Patton and Palomar on Land Titles 152 (3 rd ed. 2003) Caveat: Caveat: For an obliterated corner, the Beltz case uses the quoted language, while the 2009 Manual of Surveying Instructions uses the term substantial evidence. 6.17. No opinion is expressed as to whether or not these terms reflect the same standard. The 1973 version of the Manual of Surveying Instructions referenced the standard, whether dealing with a lost or obliterated corner, as beyond a reasonable doubt as opposed to substantial evidence. Patton and Palomar reference the standard, in 152, as clear and satisfactory evidence. 13

5.1 Rules of construction for a legal description with inconsistent or ambiguous calls, in order of controlling authority, are: 5.1.1 Any natural monument (such as the shore of a lake or river); 5.1.2 Artificial monuments and marks (for example, survey stakes) placed at the time of the original conveyance or a fixed point determinable by reference to another recorded document or the previously designated place of beginning; 5.1.3 Artificial monuments and marks other than those placed at the time of the original conveyance, including replacements of the original monuments set by others and known to perpetuate the position of the original monuments; 5.1.4 The plat of a survey, if no survey monuments have been found or placed; 5.1.5 Surveyor s field notes if no plat of the survey was made; 5.1.6 Calls with respect to course or direction; 5.1.7 Distance along a given line; 5.1.8 Quantity/acreage. Authorities: Yanish v. Tarbox, 49 Minn. 268, 51 N.W. 1051 (1892) Keven v. Gunderson, 95 Minn. 246, 104 N.W. 4 (1905) Lawler v. Rice County, 147 Minn. 236, 180 N.W. 37 (1920) Dittrich v. Ubl, 216 Minn. 396, 13 N.W.2d 384 (1944) United States v. Weyerhaeuser Co., 392 F2nd 448 (9 th Cir. 1967) Magnuson, et al v. Cossette, 707 N.W.2d 738 (Minn. App. 2006) Mattson Ridge, LLC v. Clear Rock Title, LLP, 824 N.W.2d 622 (Minn. 2012) 1 Patton and Palomar on Land Titles 111 (3 rd ed. 2003) Brown s Boundary Control and Legal Principles 7 th Edition, Chapter 12. Principles 10 & 11 6. Deficiency or Shortage of Land in a Subdivision Plat 6.1 A deficiency or shortage of land in a plat falls upon the irregular (remnant) lot if only one lot can clearly be identified as such. If all lots in a plat are equal frontage and the monuments cannot be found or reconstructed to address the deficiency or shortage, the deficiency or shortage is equally proportioned so that all lots have the same dimension. Authorities: Minn. Stat. 505.174 Barrett v. Perkins, 113 Minn. 480, 130 N.W. 67 (1911) Cf. Holmgren v. Bondhus, 311 Minn. 157, 247 N.W.2d 608 (1976) Note: Caveat: No Minnesota case law appears to have addressed the question of what to do in a situation where there is more than one irregular lot. Patton and Palomar and most jurisdictions take the position, even when there is only one irregular lot, that the deficiency is apportioned amongst all of the plat s component parts. 1 Patton and Palomar on Land Titles 161(3 rd ed. 2003). An affidavit filed under Minn. Stat. 505.174 may not correct an auditor s plat filed under Minn. Stat. 272.19. See Op. Atty. Gen. 18-d (Dec. 5, 1972). An affidavit filed under Minn. Stat. 505.174 is not applicable to titles registered under Chapters 508 or 508A. See Op. Atty. Gen. 134 (Jan. 27, 1956). See also Minn. Stat. 508.671. 14

7. Government Lots 8. Riparian Rights 8.1 Riparian rights are presumed to be included in the conveyance of land adjoining a body of water. 8.2 The intent to reserve riparian rights must be clear from the conveyance. An examiner should not presume that a grantor conveying real property bordering water reserves riparian rights. 8.3 Boundary lines depicted on a plat, alone, do not operate to reserve riparian rights. Note: Riparian rights are those associated with ownership of land fronting water. These rights include the right to newly formed upland created by accretion or reliction. Authorities: Schurmeier v. St. Paul and Pacific Railroad Company, 10 Minn. 82 (1865), affirmed, 74 U.S. 272 (1868) Gilbert v. Emerson, 55 Minn. 254, 66 N.W. 818 (1893) Hanson v. Rice, 88 Minn. 273, 92 N.W. 982 (1903) Marsh v. Carlson, 390 N.W.2d 897 (Minn. 1986) Ruikke v. Nall, 798 N.W.2d 806 (Minn. App. 2011) 1 Patton and Palomar on Land Titles 117 (3 rd ed. 2003) Brown s Boundary Control and Legal Principles, 7 th Ed., 9.14 9. Meander Lines and Low/ High-Water Mark 9.1 A government meander line is not a boundary unless it is specifically described as a boundary line; its original purpose was to allow a calculation of the quantity of land (acres) to be sold by the government. 9.2 The title of riparian owner on a meandered navigable body of water extends to low-water mark, but absolute title only extends to high-water mark, with title of riparian owner to intervening space qualified by the public right to use such space for purposes of navigation or other public purposes and the state s right to regulate. Note: Minnesota Rules 6120.2500 Subp. 11, sets forth a definition of the ordinary high water level for land use rules but it has not been determined controlling with respect to determining the high-water mark to which the property owner holds absolute title. Authorities: Schurmeier v. St. Paul and Pacific Railroad Company, 10 Minn. 82 (1865), affirmed, 74 U.S. 272 (1868) State v. Korrer, 127 Minn. 60, 148 N.W. 617, opinion supplemented at 148 N.W. 1095 (1914) In re Schaller, 193 Minn. 604, 259 N.W. 529 (1935) Mitchell v. City of St. Paul, 225 Minn. 390, 31 N.W.2d 46 (1948) Thank you! Materials are available online at: WWW.RINKENOONAN.COM David J. Meyers, Rinke Noonan Phone: 320.251.6700, Toll Free: 888.899.6700 Direct Dial: 320.656.3512 Email: Dmeyers@rinkenoonan.com Dennis Pederson, Bogart, Pederson and Assoc. Phone: 763-262-2822 Email:dpederson@bogart-pederson.com 15