The old saying goes “Good fences make good neighbors.” This is especially true when the issue is a dispute over a boundary line, as the property owners in Boerst v. Opperman (decided February 3, 2011, by the Wisconsin Supreme Court) found out.

“Survey Says . . . “

While the Ashland County case was decided in the 21st century, it’s roots go back to the 1800’s. After a survey was completed in 1886, a local town board laid out a public highway, Henn Road. According to the survey, the highway ran North/South and then made a right angle to run East/West along the boundary between four sections..

In 1907, the town board asked that the Ashland County Surveyor run survey lines according to the original survey and re-establish any lost or destroyed corner monuments. While Henn Road had long been accepted by the owners of the land boarding the east, west and north of the road, the survey completed in 1908 seemed to shift the north-south boundary. Litigation between the owners in the four impacted sections was resulted in a finding that the centerline of Henn Road was, in fact, the section line..

Another survey was completed in 1912, which seemed to show that Henn Road was not the true boundary line between the four sections. Litigation ensued yet again in 1917, based on the latest survey, and a settlement was reached, once again establishing the centerline intersection of Henn Road was the section line.

For 88 years, the centerline of Henn Road was accepted as the boundary line. Conveyances of property often referenced Henn Road in their legal descriptions, and successive property owners seemed to accept Henn Road as the divider. In the intervening years, Henn Road was rebuilt from time to time, shifting location slightly, road was still held as the section boundary. However, in 2005 a concrete monument from the 1912 survey was located in some swampland northeast of the original intersection of Henn Road. The county surveyor was notified and, based on the newly found marker, recorded an amendment claiming the marker was the proper location of the section line.

Let the Lawsuits Begin

At the time the 2005 survey was recorded, the Borests own property on the east side of Henn Road, across from the Oppermans. The new survey moved the boundary line between these properties 600 feet onto the Opperman property. For obvious reasons, the Oppermans were not thrilled when the Borests filed an action claiming ownership of the 600 foot strip of land.

The Ashland County Circuit Court, in a decision and analysis upheld by a unanimous Wisconsin Supreme Court, concluded that since the original 1886 survey monuments no longer existed, and there was no clear evidence that the 1912 survey, which was remarked in 2005, was accurate, the 2005 survey could not be relied upon. Deeds to the properties since the original survey did nothing to clarify the boundaries, because they were based on the questionable 1886 survey.

The Circuit Court relied on what it considered the best evidence of the boundary lines – the longstanding common usage of the property. All the parties, and all the prior owners of the respective parcels of land, considered the centerline of Henn Road as the boundary between the properties from 1886 until 2005; therefore, the centerline of Henn Road was the accepted legal boundary.

Use It or Lose It

This case reiterates a long line of cases which state that a survey, while an excellent tool, is not enough to counteract a long-accepted boundary line. If the original monuments have disappeared, then the boundary lines must be determined by the best evidence available, which may be an ancient fence line or, as in this case, an old highway.

Even if they had been successful in showing that the 1912 survey was accurate, the Oppermans would have had several possible defenses to the Borests being awarded the disputed property, including adverse possession and acquiescence. These two legal doctrines say that that if someone takes over and uses land that might actually belong to someone else for a very long period of time, they may become the legal owners of the land. (There’s more to both doctrines, of course, but occupancy of the land and the passage of time are two important factors.)

Buyers should familiarize themselves with the property they are purchasing. Have a survey conducted, but also walk the boundary lines and be wary of any fences, buildings, or other markers that do not seem to follow the survey lines.

It Could Happen Here

The problem of questionable surveys is not limited to the backwoods of northern Wisconsin. We recently worked with a local client who wanted to establish ownership of a small parcel of land, since the boundaries people were using didn’t seem to match up with the most recent survey, completed several years ago. The client hired a new surveyor, who determined that the last survey had used incorrect starting points, and that several other assumptions in the survey were wrong. The client was eventually able to reach an agreement with all the other landowners affected by the mistakes, and obtain clear title to the parcel.

Good fences do make good neighbors. They also help resolve disputes when things between neighbors aren’t so good.