Kubik v. Hauck

                                                                                  FILED
                                                                          IN THE OFFICE OF THE
                                                                       CLERK OF SUPREME COURT
                                                                            DECEMBER 8, 2022
                                                                        STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                 

Scott Kubik,                                            Plaintiff and Appellant
      v.
Dominic Hauck,                                         Defendant and Appellee



                                No. 20220091

Appeal from the District Court of Dunn County, Southwest Judicial District,
the Honorable Rhonda R. Ehlis, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Jordan L. Selinger, Dickinson, N.D., for plaintiff and appellant.

Sandra K. Kuntz, Dickinson, N.D., for defendant and appellee.
                                Kubik v. Hauck
                                 No. 20220091

Tufte, Justice.

[¶1] Scott Kubik appeals from a judgment quieting title in favor of Dominic
Hauck on a property line dispute and denying his claim of acquiescence. We
affirm, concluding the district court did not clearly err in finding that Kubik
failed to show by clear and convincing evidence that Hauck or his predecessors
in interest recognized the original fence line as the property line.

                                         I

[¶2] Kubik and Hauck are adjacent landowners. Kubik owns the SW1/4 of
Section 2, Township 141 North, Range 95 West in Dunn County, which he
purchased in 1997 from his mother and has been owned by his family since
1911. Hauck owns the NW1/4 of Section 2, which he purchased at auction in
2018 from the Tony Sickler Trust. Prior to the Trust’s ownership, the Sickler
family had owned the NW1/4 since the 1930s. A wire fence ran east and west
near the property line. After a survey of his land, Hauck discovered the fence
was several feet inside of his property. Hauck removed the original fence and
built a new fence consistent with the property line identified by the survey.

[¶3] In 2020, Kubik sued Hauck to quiet title in the strip of land located on
the south side of the original fence line (i.e., the land between the original fence
line and the new fence line) under adverse possession and acquiescence, and
for trespassing and damaging his property. Hauck counterclaimed to quiet title
in the disputed property. After a bench trial, the district court quieted title in
favor of Hauck based on the survey showing that he is the rightful owner and
rejected Kubik’s claims of adverse possession, acquiescence, trespass, and
damages.

                                        II

[¶4] “In an appeal from a bench trial, the district court’s findings of fact are
reviewed under the clearly erroneous standard of review, and its conclusions
of law are fully reviewable.” McCarvel v. Perhus, 

, 

. “A finding of fact is clearly erroneous if it is induced by an erroneous view
of the law, if there is no evidence to support it, or if, after reviewing all of the
evidence, this Court is convinced a mistake has been made.” 

 The district
court is the determiner of credibility issues in a bench trial, and we will not
second-guess its credibility determinations. 

                                       III

[¶5] Kubik argues the original fence line was the established boundary
between his property and the Hauck/Sickler property and the district court
erred by not quieting title in his favor under the doctrine of acquiescence.

[¶6] “Boundary by acquiescence allows a property owner to acquire
neighboring property due to an honest mistake over the location of the
boundary line.” McCarvel, 

 (quotation omitted). “To establish
a new boundary line by the doctrine of acquiescence, it must be shown by clear
and convincing evidence that both parties recognized the line as a boundary,
and not a mere barrier, for at least 20 years prior to the litigation.” Id. at ¶ 11.
“A boundary line acquiesced in must be definite, certain and not speculative,
and open to observation.” Id. “[A]cquiescence requires possession up to a visible
line marked clearly by monuments, fences, or the like.” Id. “In the absence of
a conventional agreement, mutual recognition may be inferred from a party’s
conduct or silence.” Id. Whether there has been mutual recognition of a
boundary is a question of fact, reviewed under the clearly erroneous standard.
Id. at ¶ 9.

[¶7] The district court found that the original fence was merely a barrier
between the properties, not a mutually recognized boundary. The court found
that Kubik honestly believed the original fence to be the actual boundary, but
that Kubik failed to show by clear and convincing evidence that the Sicklers,
the Trust, or Hauck recognized the original fence line as the boundary for the
required 20 years. The court noted that the testimony showed that “no one
really knows who owns the [original] fence, as both parties have appeared to
work on it over the years,” including maintenance by Kubik, the Sicklers, and
renters of both properties. The court found that the Sicklers had moved the
fence posts over the years due to erosion, and that the fence was a barrier to

                                         2
contain cattle and horses. The court noted that the evidence showed the fence
was in disrepair. It found that the disputed property was conservation reserve
program (CRP) land and pasture land, and that the CRP land was hayed every
third year and that animals, at times over the years, had been pastured on the
land. The court found that no improvements had been made to the land by
Kubik, and that it does not appear Kubik and the Sicklers ever discussed the
boundary line. Hauck’s land surveyor, who was certified as a surveying expert
at trial, opined that the original fence was built in the 1940s. Alfred Sickler, a
trustee of the Tony Sickler Trust since 2016 and Tony Sickler’s son, testified
that the Trust paid the property taxes on the NW1/4 until it was sold to Hauck
and that prior to selling, the Trust advertised all 160 acres in the NW1/4 for
sale. Alfred Sickler testified the full 160 acres were sold to Hauck. Hauck
testified that he believed the Trust paid taxes on the full 160 acres in 2018 and
he and his wife paid taxes the following years.

[¶8] Kubik contends that the original fence was the mutually recognized
boundary and that the Sicklers’ moving of the fence posts was to maintain its
line, not to shift it north or south. Alfred Sickler testified that he and his family
maintained the fence and moved posts to “try to stay in line with where the
fence was at, but . . . if the sand got too deep or [you] couldn’t dig a post hole,
you just moved it over maybe just one post or two posts.” He testified he did
not view the fence as a boundary. Bobby Kubas, who rented the NW1/4 from
the Trust from 2014 through 2018, testified he performed extensive
maintenance on the fence in 2014, replacing posts and wire, to contain his
cattle. Kubas testified he was required to maintain the fences under his lease
agreements with the Trust. On the basis of the evidence, the court may
reasonably infer that the Sicklers and the Trust did not regard the fence line
as the boundary line, but merely a barrier to contain cattle.

[¶9] Kubik argues the Sicklers’ use and maintenance of the fence shows they
did not object to the fence’s location or demand it be moved. While the parties’
conduct or silence may lead to an inference that they mutually recognized a
fence as a boundary under certain circumstances, a permissible inference in
this case is that they merely regarded it as a barrier to contain cattle. See
Sauter v. Miller, 

, 

 (“A property owner does


                                         3
not acquiesce in a fence as a boundary merely because he builds the fence upon
his own property and not upon the property line. . . . The intent must have
been to establish the fence as the boundary, not a mere barrier between the
properties.”); Brown v. Brodell, 

, 

(concluding district court did not clearly err in finding no mutual recognition
of boundary because, in part, party opposing acquiescence paid property taxes
on disputed acreage and evidence showed prior owner constructed fence as a
barrier to keep cattle contained). Accordingly, the district court did not clearly
err in finding that Kubik failed to show by clear and convincing evidence that
the Sicklers, the Trust, or Hauck recognized the original fence line as the
boundary.

[¶10] Kubik asserts the telephone easement given by the Trust was
erroneously relied upon by the district court in denying his claim of
acquiescence. The court found that the Trust gave Consolidated Enterprises an
easement on the NW1/4 and stated, “It is apparent that Consolidated believed
the Sicklers to be the owners of the property where the easement lies, as it
would be improbable that they would pay someone for an easement that did
not have the authority to grant the easement.” The court did not make a
specific finding as to where the easement is located on the NW1/4. However,
even if we agree with Kubik that the easement is not located on the disputed
property, the court’s findings regarding the telephone easement are not
reversible error. The court did not misstate the evidence. Rather, Kubik
interprets the court’s findings as implicitly stating that the telephone
easement was on the disputed property and that provides evidence of a lack of
mutual recognition of a boundary. To the extent the court implied the easement
was located on the disputed property, the court does not appear to rely on this
information in any material way. We conclude that either the court did not rely
on this information or, if it did, the court’s ultimate finding that there was no
mutual recognition of a boundary is not clearly erroneous. See Gimbel v.
Magrum, 

, 

 (“Appellate courts review the
record and findings as a whole and if the controlling findings are supported by
the evidence, they will be upheld on appeal notwithstanding immaterial
misstatements in the lower court’s decision.”).



                                        4
[¶11] Kubik compares this case to Ward v. Shipp, 

 (N.D. 1983),
and Sauter, 

. In both Ward and Sauter, this Court concluded the
district court did not clearly err in finding the parties mutually recognized a
fence as a boundary under the doctrine of acquiescence. While the basic facts
in this case are similar to Ward, the Court in Ward, at 16, summarily concluded
that there was “sufficient evidence in the record” to support the district court’s
finding that the fence was intended by the parties “to be the boundary between
the properties, not merely a barrier.”

[¶12] In Sauter, 

, the plaintiff-landowner bringing the
acquiescence claim testified that “the fence has always been recognized as a
boundary line.” The defendants “did not offer any disputing evidence or call
any previous owners to testify to the contrary.” 

 Further, although the
defendants “testified they did not think the fence was the proper boundary
when they visited the property prior to purchasing the land from the [previous
owners] . . . [they] still purchased the land, did not have the acreage surveyed,
and entered into a lease with [plaintiff] that contained language denoting the
fence as part of the [plaintiff ’s] property.” Id. at ¶ 22. Unlike here, the plaintiff
in Sauter met her burden in showing the fence was a mutually recognized
boundary.

[¶13] Even if we were to conclude the facts in this case were similar enough to
Ward or Sauter as to allow for a finding of mutual recognition of boundary and
acquiescence in the first instance, our task as an appellate court is to determine
whether the district court clearly erred in finding a lack of mutual recognition
of boundary and acquiescence. See Gimbel, 

 (concluding that
although conflicting evidence existed on the issue of acquiescence, the district
court is the determiner of credibility issues, and evidence existed supporting
court’s finding of a lack of mutual recognition). As discussed above, the court
did not clearly err in finding that Hauck and his predecessors in interest did
not recognize the original fence line as the property line.

                                        IV

[¶14] Kubik asserts the district court erred by failing to award damages for
Hauck trespassing upon his land and cutting a portion of his hay. The court

                                          5
found that Hauck mowed a small strip of grass on Kubik’s land, but that Kubik
failed to show that he incurred any damages. Although the court should have
awarded nominal damages, its failure to do so does not warrant reversing the
judgment. Kuntz v. Leiss, 

, 

.

[¶15] We have considered the parties’ remaining arguments and conclude they
are either without merit or unnecessary to our decision. The judgment is
affirmed.

[¶16] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




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