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Recent Case Highlights the Importance of Accuracy in Defining Property Boundaries

June 5, 2013

Scott W. Brunner     

A recent decision from the Wisconsin Court of Appeals, Smith v. Donaldson, No. 2012AP1322, 2013 WL 1197251 (Mar. 26, 2013), highlights certain important standards for pinpointing property boundaries that are unclear or ambiguous based on the language in a deed or land survey.  The Smith case involved a boundary dispute over lake property in northern Wisconsin.  An old land survey had set the southern border of one party's residential lot (which was a government lot at the time of the survey) at a location marked by “two iron pipes.”  However, the warranty deed that originally deeded that parcel to private owners did not mention the iron pipes, and instead simply defined the southern border of the property as the “government lot line” of the property immediately to the south. The property to the south was government land. Inconsistent references to “iron pipes” versus “government lot line” in descriptions of the residential lot occurred over time, which ultimately became problematic in the early 2000s when a surveyor found the iron pipes to be 60 feet north of the government lot. Consequently, this 60-foot gap of lakefront property was without a clear owner, which resulted in the Smith dispute.

The Smith court had a few different approaches it could take in setting the definitive line along these otherwise unclear property borders.  The court discussed applying the doctrine of “evidence of common usage and acquiescence,” but ultimately dismissed that approach because the 60-foot parcel was not actually used—it was simply a wooded, undeveloped piece of land.  Acquiescence, under this doctrine, means that a property boundary may be established by evidence of the conduct of neighbors.  In Smith, the neighbors “understood” and “thought” the pipes marked the residential lot’s boundary, but an understanding of a property’s boundary does not equate to use of property.

 Alternatively, the Smith court resorted to the deeds, which unambiguously said “northern government lot line.”  Even though the parties were unclear as to the boundaries, and despite that old land surveys contradicted the deeds, there was not enough evidence of some other understanding of property usage for the court to alter the property line according to some unique legal theory.  The warranty deed’s “government lot line” description thus held strong, and the 60-foot lake parcel at issue was retained by the residential lot owner to the north.

The ultimate lesson of Smith is that it’s extremely important to not only understand one’s legal property descriptions, but also to ensure that such descriptions are accurate.  This is especially true for older properties with histories of changing hands, such as the lake property in Smith.  In certain circumstances, inconsistent surveys or recordings of a deed, in addition to a number of unique legal theories concerning the common usage of property, could completely alter the boundaries of land one thinks he or she owns.


*The property at issue in Smith is shown by the circled portion of the above map, where lot 3 meets lot 4. This map was introduced as Trial Exhibit 1 in Smith and attached to the court's opinion, which can be seen here.

The information contained herein is not intended as and should not be construed as legal advice.  Please consult with legal counsel before taking any action based on this information.