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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.

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• 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 22nd

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)

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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”

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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

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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)

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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.

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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.

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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.

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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.

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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.

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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.

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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 (3rd ed. 2003)

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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 (3rd ed. 2003)

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.

Caveat: 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.”

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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 (9th 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 (3rd ed. 2003)

Brown’s Boundary Control and Legal Principles 7th 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: 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(3rd ed. 2003).

Caveat: 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.

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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 (3rd ed. 2003)

Brown’s Boundary Control and Legal Principles, 7th 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