Establishing a Boundary by Practical Location


Practical location is a legal doctrine that can be used to establish a new location of a property boundary. The doctrine may be used to establish a boundary line where none can be located or agreed upon. More commonly, however, the doctrine is used to change a boundary line from what is reflected on a valid and accurate survey.

A boundary line can be established by practical location in one of three ways:

1. Acquiescence: Where one party acquiesces in the boundary for a sufficient period of time to bar a right of entry under the statute of limitations;

2. Agreement: Where both parties agree on the boundary and then acquiesce to that agreement; or,

3. Estoppel: Where one party silently looks on, with knowledge of the location of the true boundary line, while the other party encroaches upon it or subjects himself to expense with regard to the land that he would have avoided if the line had been disputed.

Practical location usually occurs when neighbors attempt to establish a fence as close to the actual boundary as possible, or when one neighbor unilaterally marks a boundary, and the other recognizes that line as the actual boundary.

Establishing a Boundary by Acquiescence.

By “Acquiescence,” courts mean “conduct from which assent can be reasonably inferred.” Passive consent will not be sufficient. See Pratt Inv. Co. v. Kennedy, 636 N.W.2d 844, 850 (Minn. Ct. App. 2001). To prove practical location by acquiescence, it is not necessary to show that either party had knowledge of the true boundary line. See Fishman v. Nielsen, 53 N.W.2d 553, 557 (Minn. 1952). But it is necessary to show that both neighbors acquiesced to the new boundary line. See Engquist v. Wirtjes, 68 N.W.2d 412, 417 (Minn. 1955) (distinguishing between case where fence was placed by neighbors intending it to mark the boundary line with case where one neighbor placed fence haphazardly).

Establishing a Boundary by Express Agreement.

A party must prove two elements in order to establish a boundary by practical location through an express agreement: (1) An express agreement setting an “exact, precise line” and (2) acquiescence “for a considerable time.”

Courts do not require a written or formal agreement. “Such a formal agreement would be a contractual basis for setting a boundary, not a practical-location basis.” Ruikkie v. Nall, 798 N.W.2d 806 (Minn. Ct. App. 2011). But, more than mere silence and tacit acceptance is required. See Slindee v. Fritch Investments, LLC, 760 N.W.2d 903 (Minn. Ct. App. 2009). There must be evidence of either a specific discussion identifying the boundary line or a specific boundary-related action clearly proving the parties’ agreement. Id.

Establishing a Boundary by Estoppel.

Very few cases locate a boundary by estoppel. This is likely true because, of all the theories, the estoppel theory is the most difficult to prove.

The estoppel theory requires proof that the defendant stood by with knowledge of the true boundary line while his neighbor encroached on the boundary. See Engquist v. Wirtjes, 68 N.W.2d 412, 416 (Minn. 1955); See Wojahn v. Johnson, 297 N.W.2d 298, 304, n.2 (Minn. 1980). Courts have construed the “knowledge” requirement rigorously, not merely to require that the defendant had knowledge of the encroachment, but also that he had knowledge of the correct location of the boundary line. Id. Therefore, a claim of practical location by estoppel may be defeated if the defendant testifies that he didn’t know where the true boundary was. Id.