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Willhite v. Cass County Board of Supervisors

February 15, 2005

JAMES W. WILLHITE, ET AL., APPELLANTS,
v.
CASS COUNTY BOARD OF SUPERVISORS, ET AL., DEFENDANTS, LOWELL SCHELLACK, AN INDIVIDUAL DOING BUSINESS AS SCHELLACK ENGINEERING, RESPONDENT.



Cass County District Court File No. C0-03-5.

Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Wright, Judge.

SYLLABUS BY THE COURT

A surveyor's discovery that a previous surveyor's report deviated from a professional standard of care by relying on quarter corners erroneously located about thirty feet east of their true location is a discovery of an error in a land survey that provides a basis for an action to recover damages if it is brought within two years of this discovery and within ten years of the alleged error in the initial survey.

The opinion of the court was delivered by: Lansing, Judge

Affirmed in part, reversed in part, and remanded

OPINION

This appeal is from a summary judgment dismissing the landowners' professional-negligence and intentional-misrepresentation claims against a surveyor who performed a survey on the landowners' property in 1997. The landowners appeal the district court's granting summary judgment and the underlying order allowing the surveyor to amend his answer to reassert a statute-of-limitations defense. We affirm the order permitting amendment of the answer, but we reverse and remand the summary-judgment dismissal because the landowners brought their action within two years of the discovery of an error in the survey of land and a genuine issue of material fact exists on whether the alleged survey error proximately caused the landowners' damages.

FACTS

James and Bonnie Willhite purchased property on Crystal Lake in Cass County in 1980. After purchasing the property, the Willhites improved the western side of their land by completing a boat house and installing a septic drain field. The Willhites' immediate neighbors to the west, Cheryl and Donald Collins, purchased their property in 1971. In 1996 the Collinses obtained a survey to determine the boundary line between the properties. The Collinses' survey showed that the Willhites' western boundary line was located thirty feet east of where the Willhites believed it to be. The Willhites concluded that the survey was in error and retained Schellack Engineering to survey the property. Lowell Schellack performed the survey. His initial survey and two survey revisions were consistent with the Collinses' survey.

In 1997 the Willhites initiated an adverse-possession action to establish ownership of the thirty-foot strip of land that the surveys showed was part of the Collinses' property. The Willhites also attempted to obtain a resurvey of the land but were unable to find a surveyor who was willing to undertake a new survey within a reasonable time period. The district court determined that the Willhites had not exercised possession of the strip of property for a sufficient period of time to establish title by adverse possession. The Willhites appealed, and this court affirmed the district court's determination. Willhite v. Collins, 2000 WL 1869564 (Minn. App. Dec. 26, 2000).

In April 2002, the Willhites retained Roger Mustonen to resurvey their property. In the resurvey, Mustonen determined that Schellack relied on an incorrectly relocated south quarter corner and erred in locating the true position of the north quarter corner, causing Schellack to make about a thirty-foot error in the Willhites' survey. According to Mustonen, he excavated evidence of the original south quarter corner and made measurements corroborated by global-positioning-system-survey instruments. Mustonen reestablished the south quarter corner as an "obliterated" corner and the north quarter corner as a "lost" corner and certified his survey results with the county. His resurvey, based on the original south quarter corner and the reestablished north quarter corner, placed the Willhites' western boundary line about twenty-seven feet to the west, close to the location that they originally claimed.

After unsuccessfully attempting to vacate the adverse-possession judgment, the Willhites filed a complaint alleging, among other claims, that Schellack negligently performed a survey on their property that placed the western boundary of their property approximately thirty feet east of its true location. The Willhites further alleged a claim of intentional misrepresentation and specific economic and non-economic damages proximately caused by the surveying error.

In his answer, Schellack denied the Willhites' allegations of negligence and intentional misrepresentation and asserted a statute-of-limitations defense. In a subsequently amended answer, Schellack failed to include the statute-of-limitations defense. Schellack moved for summary judgment and, at the hearing, moved to amend his answer to include the omitted defense. The district court granted both motions, concluding that the statute of limitations for damages based on errors in land surveys barred the Willhites' claims and that the Willhites failed to demonstrate that Schellack's actions were a ...


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