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Casenotes

Wisconsin

Boundary Lines; Common Usage and Acquiescence

Northrop v Opperman, 331 Wis 2d 287, 795 NW2d 719, 2009 AP 1559 (Wis, 2011).

Facts:For nearly a century, several property owners in Butternut, Wisconsin, considered the center of Henn Road to be the boundary line separating their parcels of land. Then in 2005, a new survey of the land found that the actual boundary line was 600 feet off.

Litigation began with a suit filed by Daniel Northrop and involved several other surrounding landowners, including Betty and Floyd Opperman and Kay and Peter Boerst. The Boersts' property lay south of Northrop's and directly east of the Oppermans. When the 2005 survey was done, it was determined that the north-south running Henn Road was actually entirely in the Boersts' property. The trial court rejected the 2005 survey and found that because it was impossible to determine where the original boundary line was, the court could look to extrinsic evidence to determine the boundary. Because the Henn Road boundary had existed for so long and the property owners had all acquiesced to its status as the boundary, the trial court determined that it was the correct boundary. On appeal, the court of appeals affirmed this part of the lower court's decision. The Boersts then appealed to the Wisconsin Supreme Court.

Holding:Affirmed. The original boundary line could not be determined and the best evidence to determine the boundary line was common usage and acquiescence. Based on those factors, the centerline of Henn Road was the correct boundary line between the properties. Acknowledging that boundary dispute cases are necessarily fact-specific, the Wisconsin Supreme Court analyzed the various ways that courts have attempted to settle these disputes in different circumstances. The court determined that the proper analogy for the present case was boundary dispute cases "in which a survey is in conflict with a longstanding landmark."

In the analysis in these cases, first a court must attempt to figure out where the boundary line is from the deed and original monuments or markers. If it is unclear from these factors where the boundary is, then a court looks to the "best evidence" available. The deeds at issue in the case were not clear because they referred to monuments that no longer existed. Some of the markers of the original boundaries of the properties were present, but not the markers that would determine where the boundary line in dispute was located. Because Henn Road had served as the longstanding landmark between the properties since the early 20th century, the Supreme Court held that by common usage and acquiescence of the parties, Henn Road was the best evidence of where the boundary line was located between the Boerst and Opperman properties.

[Last update: 6-29-11]