The Midwest Planning BLUZ

by Victoria Heldt

Enbridge Energy, LP v. Donovan Dyrdal, et al.
(Minnesota Court of Appeals, October 24, 2011)

The Dyrdals own agricultural property that is subject to easements held by Enbridge Energy.  The easements were granted in 2009 by the power of eminent domain and allowed Enbridge “rights of ingress and egress as are reasonably necessary or convenient in the exercise of such easement rights.”  Enbridge, a public-service corporation, installed and maintained pipelines in the easement.  Soon after completing the pipeline installation, Enbridge discovered problems at two locations, so the crew began working to correct them in January of 2010.  They used a field road on the Dyrdal property to access the two spots.  In response, the Dyrdals placed large hay bales across the field road and in the ditch between the problem sites, preventing Enbridge from accessing their work site.  Enbridge claimed this delay cost them an additional $28,697.80 in project costs.

Enbridge sought a declaratory judgment and injunctive relief in district court alleging a breach of easements and a violation of the eminent-domain order, among other things.  They also moved for a temporary injunctive relief to prevent the incident from reoccurring during litigation, which the court granted.  The Dyrdals countered with a claim of immunity under Minnesota’s statute preventing strategic litigation against public participation (SLAPP).  The statute’s goal is to prevent parties from using the threat of costly litigation to silence those who want to debate public issues.  The district court eventually granted Enbridge’s motion for summary judgment on the issue of declaratory relief, finding Enbridge did indeed have the right to access the property to maintain the pipelines.

The Dyrdals appealed, their first claim being that the district court erred when it denied their request for partial summary judgment on the grounds of Minnesota’s anti-SLAPP statutes.  The anti-SLAPP statute can be used to dismiss claims that relate to public participation.  The Court noted that public participation is defined as “speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.”  The Dyrdals argued that, since Enbridge gained access to the property by means of an eminent-domain procedure, it was acting as a government agent in its actions.  Consequently, they claimed that the anti-SLAPP statue was applicable.  The Court disagreed.  They noted that the power of eminent domain does not make the entity a government agent once the power has been exercised.  In addition, they found that Enbridge was exercising its rights as an easement owner, not a government agent, in accessing the property.  Further, the Dyrdals previously claimed that they placed the hay bales on the road in order to load them and not to interfere with Enbridge’s work.  If that is true, then their conduct was not to “procure favorable actions from Enbridge,” but for their own private farming operations.  As a final note, the Court noted that it had recently found that a preexisting legal relationship could limit a party’s ability to file an anti-SLAPP claim.

The Dyrdals also alleged that the district court abused its discretion when it granted temporary injunctive relief.  In evaluating whether a temporary injunction is appropriate, the Court considers five factors:  1) the nature and background of the relationship between the parties; 2) the balance of harm to the parties; 3) the likelihood that the party seeking the injunction will prevail on the merits of the action; 4) wither there are public-policy considerations; and 5) whether there are any administrative burdens involved in judicial supervision and enforcement of the temporary injunction.  After analysis, the Court found that the first three factors favored Enbridge, while the last two were neutral.

The Dyrdals focused mainly on the third factor.  The Court had reasoned that the language in the eminent-domain ruling showed Enbridge had a clear right to access the property and that constituted a showing that they would most likely win on the merits of the case.  The Dyrdals claimed that the real-estate doctrine of practical location limited Enbridge’s right of entry to one specific route.  The boundary by practical location can be established by acquiescence if one party chooses a specific route and the other agrees accepts it over a period of time.  The Dyrdals contend that an alternative route (and not the field road) that was previously used had been established by acquiescence.  The Court noted the plurality in the phrase “rights of ingress or egress” that appeared in the eminent-domain ruling.  It found that the ruling did not prescribe one specific route of access, so the Dyrdal’s claim was insufficient to disprove the likelihood of Enbridge’s success in a claim.  Additionally, the practical location by acquiescence doctrine requires acquiescence over a period of time.  In this case, the easement was relatively new and substantial time had not passed in which to establish a route by acquiescence.  The Court affirmed the district court’s decision regarding the temporary injunction.

Easements, Minnesota courts boundary by acquiescence, Easements, eminent domain, Minnesota Court of Appeals

by Victoria Heldt

Oppliger v. Vineyard
(Nebraska Court of Appeals, September 20, 2011)

This case deals with land bordering the shores of the North Platte River in Lincoln County, Nebraska.  The Oppligers own land on the north side of the river, while the Vineyards own the land directly south of the Oppliger’s land on the opposite side of the river.  The Oppligers and the Vineyards seek to clarify where the boundary line exists between their respective properties.  The complication within this case stems from the fact that the North Platte River has bifurcated into two channels, making it difficult to discern the exact location of the property boundary line.  The Oppligers feel that it should be established in the southern channel, while the Vineyards feel that it should be in the northern channel.  The Court based the decision on the determination of which channel should be considered the main channel of the river.

A key question was whether the change in the river’s flow and width is the result of accretion or the result of avulsion.  Accretion is the extension of a shoreline by a gradual, imperceptible addition of solid material.  Avulsion is characterized by a sudden, abrupt change in the land by water and can be caused by things such as a flood or the construction of a dam.  Whether the change in the land was caused by accretion or avulsion has an affect on how the property line is drawn between the two properties.  The Court noted that “changes in the location of the river or its channels caused by avulsion do not change the boundary, whereas changes by accretion would change the boundary.” It applied this principle to the facts of the case.

The district court concluded that the property boundary should be drawn at the geographical centerline that was established by the Government Land Office (GLO) in a survey in 1870.  They stated that it was impossible to determine the main thread of the river otherwise, adopting the opinion of the Oppliger’s expert witness that it was “reasonable to assume that the thread of the main channel of the North Platte River in 1870 was at or near the geographic centerline of the river.”  Further, the court found that any changes in the location of the main flow of the river were caused by avulsive events:  1) construction of the Sarben Bridge and Kingsley Dam 2) floods in 1970 and 1973, and 3) artificial flows from the Kingsley Dam for irrigation purposes.  It then rejected each party’s claim of ownership by adverse possession.

The Vineyards appealed the case to the Court of Appeals, asserting numerous claims regarding evidentiary issues.  The Court briefly addressed them, but focused most of their time determining whether the boundary line could reasonably be determined and, if so, where it should be drawn.  It listened to testimony from expert witnesses brought in by both parties to the case.  The Oppliger’s witness stated that the main thread of the stream should be defined as the last part of the stream to dry up.  He felt the last part to dry up would be the southern channel since he found it to be a foot deeper than the northern channel and  it had a stronger flow.  The Vineyard’s expert witness (Harvey) claimed the northern channel was the main thread.  He noted the characteristics of the northern channel suggest it is the older of the two channels and that the southern channel flows into the northern channel at one point.  Additionally, he asserts that the northern channel would be the last to dry up due to the additional flow from the southern channel, coupled with additional flow of groundwater from the north.  Harvey further explained that after the construction of the upstream dam, the flow of the river substantially decreased.   The reduction in flow decreased the width of the channel.  As the channel narrowed, it fostered more vegetation growth which strengthened the resistance of the river banks.  Harvey stated that “the increased erosion resistance of the banks and the reduced flood peaks significantly reduce the potential for channel changes except during infrequent larger floods.”  He testified that it was “reasonable to assume” that the unusually high river flows during floods in 1971 and 1973 were the cause of the creation of the southern channel.  These peak flows should be classified as avulsive events and therefore would not change the property boundary.  The Court deemed Harvey as a more qualified expert witness and therefore adopted his theories.

The Court also concluded that a fence established to the north of the northern channel did not constitute a boundary line by acquiescence.  In order to claim a boundary line by acquiescence, both parties must acknowledge the line as a boundary.  In this case, the Vineyards did not acknowledge or accept the fence as a boundary line and the previous owner of the property (who constructed the fence) testified that it was never meant to be a boundary.  It was erected only to keep cattle from entering the river.

The Court of Appeals reversed the district court decision, establishing the northern channel of the North Platte River as the boundary line between the two properties.

Nebraska courts, Property law boundary by acquiescence, Nebraska Court of Appeals, Property law, rivers as property boundaries

by Melanie Thwing

Georgia Pacific Gypsum v. National Gypsum Company
(Iowa Court of Appeals, February 9, 2011)

Georgia-Pacific, L.L.C. (GP) and National Gypsum Company own adjoining properties in Webster County, IA. Since the 1950’s a wire fence had separated the south property, owned by National, and the north property, owned by Georgia-Pacific. In 2000 National had the property surveyed and found the  fence was encroaching on their property.  In 2007 National removed the fence even though GP objected. Then, in 2009 GP filed a petition under Iowa Code chapter 650 to establish the fence line as the boundary line between the properties.  In support of its position GP cited Iowa Code 650.14 which states:

If it is found that the boundaries and corners alleged to have been recognized and acquiesced in for ten years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established.

In response to GP’s petition National submitted an affidavit stating: (1) there was never any knowledge that GP was claiming the fence as a boundary, (2) there was no consent to the treatment of the fence as a boundary line. Finding that from 1952 to 2000 both parties recognized the fence line as a boundary, the district court granted summary judgment for GP.  National then filed a motion to modify findings, but after the district court denied the motion National appealed to the Iowa Court of Appeals.

The Court of Appeals observed that under 650.14, acquiescence has always been defined as adjoining landowners having mutual recognition for more than ten years of a line dividing them. This line is clearly marked by a fence or in some other manner. Landowners do not need to have specific knowledge that the fence is not located on the legally defined boundary line.  When the mutual recognition of the boundary persists for more than ten years that line becomes the true boundary even if a survey shows otherwise.

National argued that GP did not prove acquiescence because in its affidavits GP never claimed the fence to be anywhere other than the legal boundary line. The Court of Appeals rejects this claim. Both GP and National demonstrated maintenance and usage of only land on their respective sides of the fence.

Secondly, National argued that their affidavits created an issue of material fact. National had paid property taxes and insured the legally defined propertu. The Court of Appeals rejected this argument. The court states that, “tax and insurance bills are typically based on legal descriptions; if that consideration were dispositive, it would be difficult to conceive any case where acquiescence could be found.” Further, even though National recognized the legal boundary line in 2000, it does not preclude that National acquiesced in the fence-line boundary before 2000.

National then argues that it never agreed to treat the fence as a boundary line. The Court of Appeals rejects this claim as well. The claim does not set forth, “specific facts showing that there is a genuine issue for trial.” It is undisputed that GP exclusively maintained and used the land to the north, and that National was fully aware of this usage and never objected to it.

Finally, National argues that the claim of acquiescence is barred by the statutes of limitations in Iowa Code §614.1(5) and §614.17A.  §614.1(5) states that actions for recovering real property must be brought within 10 years after their cause accrues. §614.17A holds, “providing that an action shall not be maintained to recover or establish an interest in or claim to real estate if the action is based upon a claim arising more than ten years earlier.”

The Court of Appeals dismisses this claim as well. Chapter 650 is a special action to establish lines or corners, and that prior caselaw has settled that the statutes of limitations cited by National do not apply to any actions under chapter 650. The district court’s decision in favor of GP was affirmed.

Iowa Court of Appeals, Property law boundary by acquiescence, Iowa Court of Appeals