Decided Guidance—Case Examinations: Boerst v. Opperman

Wisconsin Supreme Court 2010 · 325 Wis. 2d 445, 784 N.W.2d 736

We are in Wisconsin this month and by the time this makes print the Packers should be hitting the pre-season. If we play our cards right this case might carry us through a playoff berth. Boerst is a cornucopia for the surveyor so we’re gonna have to break this one up over a few months. The Wisconsin Supreme Court wrote this one up with all the fixins. We’ve got a Section, Township, Range, Principal Meridian, County, Road name, and a local town. Thanks for the extra deets Supreme Court!

For starters we have two moving parts to this case. The “book learnin’ serveyer” part amounts to an obliterated corner job prior to the courtroom cavalcade, whereas the knights of jurisprudence are jousting over the use of the word “acquiescence” throughout the appeals. So let’s start with the rope stretching and leave the lawyerin’ to the lawyer folk for now.

The primary bit of evidence seems to limit the standard of care to an obliterated corner case. There is authoritative evidence of the location of the section line at the birth of Henn Road. As we see below, there was formal action and an alignment describing the road. The court explains as follows, “We begin the history in July 9, 1886, with the original survey of Henn Road. The Butternut Town Board laid out a public highway, Henn Road described as beginning at the “southwest corner of section 9 (nine) thence north on the sec line to the north west corner of section 9 (nine).” Henn Road then continues west from the northerly end of the north/south part of the road. Although the Road presently curves, apparently it was originally a right-angle intersection with the corner common to Sections 4, 5, 8, and 9 believed to be at the intersection of the two parts of the Road.”

This is powerful medicine that includes an original survey, the body politic, the public, and the underlying landowners all proclaiming and accepting the position of the line through due process. So, the road is the section line and the section line is the road. As the facts unroll we’ll see that the argument ironically seems to end here before it even started.

Okay, so everything was hunky dory for twenty-one years when the town requested a resurvey in accordance with the General Land Office procedures. I don’t quite see any facts yet to support the coincidence of exactly 21 years or the need for the town to “restore” the corners but the hair is standing up on the back of my neck. “In 1907, the Town of Butternut contracted with Ashland County Surveyor George Parker to run survey lines according to the original government survey or, if the original landmarks were destroyed or lost, to reestablish those corners under the general rules adopted by the government in the survey of public lands. Parker submitted a survey in 1908. Shortly thereafter the Town Board directed Parker to complete the survey and finish setting the monuments as contracted.”

Okay, I gotta drop a banana peel on the sidewalk here. I’m not sure a local body politic has the authority to contractually direct a surveyor to apply federal restoration techniques, especially when the subject corners are outside of the federal arena. It seems like there was a preconceived notion that the corner was lost and restoration methods had to be employed. It’s a little bit of a stretch on my part but you’ll get the drift here. The professional’s judgement is supposed to guide the client, not vice versa. Well, a grand piano fell on Parker from the third floor right after his shoe caught the banana peel and he landed on his keister.

“As a result of the 1908 Parker survey, litigation ensued between owners of parcels in Section 8 and Section 5. Section 5 borders Section 8 to the north, and Sections 5, 8, and 9 share (along with section 4) a common corner. In that litigation it was alleged that the 1908 survey moved the boundary line between Sections 8 and 5 south of the east/west part of Henn Road. The jury returned a verdict determining that the owner of parcels in Section 8 owned the land up to the center line of the east/west part of Henn Road.”

Imagine that? The landowners hurling the lawn darts right back at the surveyor until he looked like a Lucas pincushion down in the swale of Vampire Estates during mosquito season. As we see, outside of the federal arena the evidence prevailed over the G.L.O.’s rubber band of righteousness. Do you think any member of that jury cared about cardinal equivalents? Did Parker consider the legal action that laminated the road and section line? I have to ask, what the motivation was for the town to redistribute other people’s land in the first place? Now doesn’t it seem possible that the town board might have been shoehorning a desired result?

Okay, Parker apparently tried to make good on his contract with the townsfolk. “In 1911 another survey by Parker was presented to the Town Board. The Town Board records indicate some wrangling over the acceptance of the 1911 survey, but in 1912 a certificate of survey bearing Parker’s name was recorded. The 1912 survey contains different bearings than the 1908 survey submitted by Parker for the boundary line between Sections 8 and 9.”

There goes that neck hair again. I’m not sure why there would be any wrangling over the results of a survey. There’s no obligation to deliver an opinion satisfactory with the client’s preference. Okay and regardless, it looks like Parker amended some bearings and the town accepted the results. We also see that the modern court (circa 2000’s) looked at the details in the town records. These minutes are in your evidence pool folks. Learn how to recover and correlate them with your survey. Now you know…

So, back to the time of Parker. Ya’ have to believe the first time everyone saw a silent movie with a man slipping on a banana peel then having a piano drop on him from the sky, that it was pretty entertaining. What are the chances of that happening twice? Well, in the old movies it was a sure gag and never seemed to get dull. In the non-federal arena of Ashland County, Wisconsin it also didn’t seem to lose its luster. “In 1917 the same owner of parcels in Section 8 again initiated litigation to resolve a boundary dispute. In the 1917 action, the owner of parcels in Section 8 claimed title to portions of land north of the east/west part of Henn Road. He based his claim on the 1912 Parker survey, arguing that the boundary line between Sections 8 and 5 was north of Henn Road. The owner of parcels in Section 5 alleged that the road was accepted by everyone as the boundary line between Sections 5 and 8 and that people living along the road, relying upon that line, had made large and extensive improvements on the land. Based on the evidence introduced at trial, the parties stipulated that the common corner of Sections 4, 5, 8, and 9 in Township 41 North, Range 1 West, Ashland County, Wisconsin, is at the intersection of the center line of Henn Road, setting Henn Road as the boundary between Sections 5 and 8.” Boy howdy, I guess those old time angry cheeseheads just didn’t understand the Manual of Instructions for the Survey of The Public Lands of The United States. They acted like they own the joint or something. Jeez, the nerve of title holders….

Guess what happened next? Nothing! Except in 1935 the Packers went 8-4 under Curly Lambeau himself and the DOT accepted the Henn Road section line and corner on a set of plans for a new highway. Then, after eighty-eight years of harmony in Butternut, Wisconsin, on September 18, 2005 the unthinkable happened. The Packers lost to the Cleveland Browns 24-26 in Lambeau! Coincidentally that same year some poor bob dangler tripped over a concrete post in the swamp nearly an eighth of a mile northwest of the Henn Road section corner. Yes, the same Henn Road section corner observed in due process over a century prior. The same Henn Road section corner that was settled on twice in court nine decades prior. And, the same Henn Road section corner accepted by the DOT when Curly Lambeau was still running the show.

The court summed it up like this. “The “boundary peace” was disturbed in 2005 when a surveyor found a concrete monument in the swamp northwest of the original intersection of Henn Road and notified the county surveyor. The county surveyor accepted the concrete monument as a section corner under the 1912 survey and recorded a corner restoration sheet (tie sheet) for the corner common to Sections 4, 5, 8, and 9. According to the 2005 survey, north/south Henn Road actually lies entirely in Section 9, approximately 600 feet east of Section 8, giving the Boersts additional acreage and the Oppermans less acreage.”

So Opperman had a corner record prepared by a surveyor which the county surveyor did not accept. The court observed that “The 2005 survey caused significant disruption and confusion for landowners in the area. This litigation ensued.” Boerst initiated the case and after a long day of expert testimony the circuit court made these findings of fact:
• The original section corner monument between Sections 4, 5, 8, and 9 in Township 41 North, Range 1 West, Ashland County, Wisconsin no longer exists.
• No competent evidence is before the court to determine where the original section corner monument was originally placed.
• No clear and convincing evidence exists that the resetting of the corners in the 1912 Parker survey (upon which the 2005 tie sheet is based) was correct.
• Neither party has shown by clear and convincing evidence where the actual boundary line exists.
• The circuit court further concluded that the original boundary line between Sections 8 and 9 cannot be determined solely by the descriptions in the deeds.

Now I know what you’re thinking. “Huh Foose, that sounds a lot more like a lost corner than an obliterated corner, doesn’t it now? What happened to all that “the section line is the road and the road is the section” line business? Well, how `bout dem Packers? Would ya like a piece uh squeaky cheese with yer crow?…” Well, next month we’ll tear this thing apart and see how the court arrived at its conclusions.

Note: A pdf copy of this case is available at http://wwww.amerisurv.com/PDF/BoerstVersusOpperman.pdf.
The GLO Plat can be found at https://amerisurv.com/PDF/Plat_102589_1.PDF

Feel free to send questions, comments, and feedback to rls43185@gmail.com

Jason Foose is the County Surveyor of Mohave County Arizona. He originally hails from the Connecticut Western Reserve Township 3, range XIV West of Ellicott’s Line Surveyed in 1785 but now resides in Township 21 North, Range 17 West of the Gila & Salt River Base Line and Meridian.

Sidebar:
The Barbershop Barrister
I’m climbing up in the barber chair this month all half-witted with my 80-watt megaphone. I smell a skunk in Butternut and don’t like it. I’m hung up on the 1908 Butternut Town Board playing Parcheesi with other people’s land. The 1908 Board created this whole mess that has spanned over a century and I’m not even sure they had the authority. The 1886 Town Board apparently felt comfortable enough to build a road along what they deemed as being the section lines through due process. I’m good with that part. However, one of two things should happen if the public contests this otherwise-accepted location. 1.) The Town Board defends the location of the public right and consequently the section lines, or 2.) The Town ponies up the money to condemn required property and remedy whatever shortcomings appear in their attempt at due process. Well, go figure! It looks like The 1908 Board chose a third “puppet master & carpet sweeping” option as we all know that township royalty must keep up appearances at the Saturday night “grange doings” and can’t possibly admit any sort of mistake might have occurred. Now here’s what gets my goat! The Town Board threw the dirty diaper out of the car window while hauling ass down Henn Road. As far as we know the owners were content with everything until Tammany Hall exercised authority it did not possess. You will notice that the Town Board was not a party in the 1908 or 1917 cases. The burden of litigation fell on the property owners. Ironic, isn’t it? Here’s a great contemporary example of the lack of respect from local government toward a landowner and the law: https://youtu.be/p6hcZzJrsTw

The council villainizes the owner for protecting his rights. It even goes as far as to openly admit that condemnation is not necessary and there is an alternative around the property. On top of that, the councilwoman is proud of the fact that they force poor property owners into economic submission. I personally find their sour grapes quite unfashionable in a public forum. `Nuff said!

Okay, back to Butternut. Parker did not stop, drop, and roll here folks. He went head first straight into the fiery abyss of lost corner restoration. His charge was “to run survey lines according to the original government survey or, if the original landmarks were destroyed or lost, to reestablish those corners under the general rules adopted by the government in the survey of public lands.” This contract was written in 1907 so we are dealing with the 1896 edition or Second Circular of the Pamphlet known as Restoration of Lost or obliterated corners (get the name right). It is available at https://bit.ly/2v46Xps

Let’s start with the 1896 G.L.O’s definitions on page 3 of that very circular “An obliterated corner is one where no visible evidence remains of the work of the original surveyor in establishing it. Its location may, however, have been preserved beyond all question by acts of landowners, and by the memory of those who knew and recollect the true situs of the original monument. In such cases it is not a lost corner.

A lost corner is one whose position cannot be determined, beyond reasonable doubt, either from original marks or reliable external evidence. Surveyors sometimes err in their decision whether a corner is to be treated as lost or only obliterated.

Surveyors who have been United States deputies should bear in mind that in their private capacity they must act under somewhat different rules of law from those governing original surveys, and should carefully distinguish between the provisions of the statute which guide a Government deputy and those which apply to retracement of lines once surveyed. The failure to observe this distinction has been prolific of erroneous work and injustice to landowners.”

Parker was facing an obliterated corner. He had reliable external evidence that had been preserved beyond all questions by the acts of landowners and the 1886 Henn Road survey serves as a strong “record” of recollection. The 2005 circuit court sounds like it couldn’t quite get to “obliterated” but limit their observations to evidence “in front of this court”. As we see, the “findings of fact” are an important part of the appeal process.

About the Author

Jason Foose, PS

Jason Foose originally hails from the Connecticut Western Reserve Township 3, range XIV West of Ellicott’s Line Surveyed in 1785 but now resides in Township 21 North, Range 17 West of the Gila & Salt River Base Line and Meridian. He is also the Managing Editor of the magazine.