                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1557

                 In the Matter of the Petition of Wells Fargo Bank, N. A.,
               for an Order Determining the Boundary Lines and Declaring
          Permanent Driveway Easement and Permanent Septic System Easement.

                                     Filed July 5, 2016
                                         Affirmed
                                       Reilly, Judge

                             Crow Wing County District Court
                                 File No. 18-CV-12-1324

Thomas C. Pearson, Daniel M. Hawley, Gammello, Qualley, Pearson & Mallak, PLLC,
Baxter, Minnesota (for appellant Lamont V. Peterson)

James M. Lockhart, Karla M. Vehrs, Lindquist & Vennum LLP, Minneapolis, Minnesota
(for respondent Wells Fargo Bank)

       Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Klaphake,

Judge.*

                         UNPUBLISHED OPINION

REILLY, Judge

       In this boundary-dispute action involving Torrens property, appellant challenges the

district court’s (1) application of the doctrine of boundary by practical location (estoppel);

(2) determination that appellant’s parcel is encumbered by implied easements; and



*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
(3) determination that appellant is not a good-faith purchaser under Minn. Stat. § 508.25

(2014). We affirm.

                                         FACTS

       Respondent Wells Fargo, N.A. (Wells Fargo) is the fee title owner of real property

located in Crow Wing County and legally described as “Lot One (1), Block One (1) of

Long Pine Addition” (Parcel A). Appellant Lamont V. Peterson (Peterson) is the fee title

owner of real property adjacent to Parcel A and legally described as:

                     The North 105 feet of the South 840 feet of the
              Southwest Quarter of the Southeast Quarter (SW¼SE¼) of
              Section Six (6), Township One hundred thirty-seven (137),
              Range Twenty-eight (28), EXCEPT that part of said SW¼SE¼
              described as follows: Beginning at the point of the East line of
              said SW¼SE¼ which is 450 feet South 1 degree 02 minutes
              East of the Northeast corner of said SW¼SE¼ thence south 1
              degree 02 minutes East, 90 feet, thence South 88 degrees 58
              minutes West, 90 feet; thence North 43 degrees 58 minutes
              East 127.28 feet to the place of beginning.

(Parcel B).

       S.G. and S.B.G. previously owned both parcels. In 1996, they installed a sewer line,

a septic tank, and a drain field (the Permanent Septic System) on Parcel B. In 1999, Crow

Wing County issued a construction permit to S.G. and S.B.G. to construct a single-family

residence, a garage, and a shed (the Improvements) on Parcel A. The Improvements

straddle the common boundary line between the parcels and encroach onto Parcel B. The

Permanent Septic System exists solely for Parcel A’s benefit. The same year, S.G. and

S.B.G. constructed a gravel driveway (the Permanent Driveway) on Parcel B leading

directly to a concrete pad on Parcel A and providing access to the home. The Permanent



                                             2
Driveway enters Parcel A’s garage from the south side of Parcel B. There are no

documents in existence, recorded or unrecorded, that reference the encroachments on

Parcel B.

       In May 2005, both properties were conveyed by warranty deed to K.L. and F.L.,

who jointly owned both parcels until 2010. In August 2006, K.L. and F.L. executed and

delivered a home equity line of credit mortgage to CitiBank, securing payment of a credit

line in the original amount of $364,000 and encumbering Parcel B (the CitiBank

Mortgage). In November 2007, K.L. and F.L. executed and delivered a real estate

mortgage to Wells Fargo, securing payment of a Promissory Note in the original principal

amount of $645,000, and encumbering Parcel A (the Wells Fargo Mortgage). K.L. and

F.L. later defaulted on the terms of both mortgages and Wells Fargo and CitiBank initiated

foreclosure proceedings on their respective parcels.        Parcel A was sold at a public

foreclosure auction to Wells Fargo in July 2009 for $691,931.04. The district court issued

an order in June 2010, confirming the foreclosure sale and issuing a new certificate of title

in favor of Wells Fargo. In February 2010, the Crow Wing County Sheriff sold Parcel B

at a public foreclosure auction to CitiBank for $259,900.

       In spring 2010, Peterson contacted a realtor to inquire about purchasing both

properties. Peterson was aware that two different banks owned the different parcels. In

April 2010, Peterson and his domestic partner sought to purchase Parcel A from Wells

Fargo for $329,000 (the Wells Fargo Purchase Agreement). The Wells Fargo Purchase

Agreement ultimately did not close. CitiBank offered to sell Parcel B to Peterson for

$100,000, and he countered with an offer of $50,000. The parties agreed on a purchase


                                             3
price of approximately $60,000. In November 2010, CitiBank conveyed Parcel B to

Peterson pursuant to a special warranty deed and the district court confirmed the sale and

issued a new certificate of title in his favor.

          In March 2012, Wells Fargo filed a petition with the district court arguing that at

the time Peterson acquired Parcel B, he “knew or should have known that the

Improvements and the driveway encroached” upon his property. The petition alleged that

Peterson “was not a good faith purchaser” and should therefore be estopped from disputing

Wells Fargo’s “right to maintain and continue [to] use” the Improvements where they

currently exist. Wells Fargo sought the following relief:

                       [A]n Order (1) determining the boundary line between
                Parcel A and Parcel B of the land described in Certificate of
                Title Nos. 89246 and 90287½, to be north of the
                Improvements, whereby the Improvements will no longer
                encroach onto Parcel B and straddle the boundary line;
                (2) granting [Wells Fargo] a permanent easement for the
                driveway; and (3) declaring that [Peterson] is not a good-faith
                purchaser of Parcel B and acquired that property with actual or
                constructive notice of the inconsistent outstanding rights or
                claims of others.

          The Crow Wing County Examiner of Titles prepared an Examiner’s Report

certifying that he examined the county records and found that Wells Fargo “has a

reasonable claim to ownership regarding boundary line issues and easement issues” on

Parcel B. The Certificate of Survey also reflects that the Improvements lie on Parcel A and

encroach onto Parcel B, with the driveway completely within Parcel B.

          Wells Fargo filed an Amended Petition on April 8, 2013, seeking the following

relief:



                                                  4
                     i. determining that the North boundary line of the
              land described in Certificate of Title No. 89246 and the South
              boundary line of the land described in Certificate of Title No.
              90287½ is adjusted and realigned as shown on the Proposed
              Boundary Sketch attached hereto as Exhibit O and directing
              that the new common boundary line be marked by judicial
              landmarks;

                      ii. authorizing and directing the Surveyor . . . to
              (i) enter upon the land in Certificate of Title No. 90287½ and
              do all things necessary and required to survey the land in said
              certificate, (ii) to survey the Permanent Driveway Easement
              and the Permanent Septic Easement, (iii) to provide the Court
              and the parties with the legal descriptions to be used for the
              Permanent Driveway Easement and Permanent Septic
              Easement, and (iv) provide the Court and the parties with new
              legal descriptions for Parcel A and Parcel B, which conform to
              and are aligned with the new common boundary line between
              Certificate of Title No. 89246 and Certificate of Title No.
              90287½;

                     iii. directing the Registrar of Titles to receive for
              registration as a memorial on Certificate of Title No. 89246 and
              Certificate of Title No. 90287½, a certified copy of the plat of
              survey showing the placement of judicial landmarks.

       The district court held a court trial in March 2015. During his testimony, Peterson

confirmed that prior to purchasing Parcel B, he was aware that the Improvements and the

driveway pad overhung the boundary line between the parcels, and that the Permanent

Driveway and the Permanent Septic System were located on Parcel B. Peterson testified

that if he had purchased Parcel A, he expected to use the driveway that cuts through Parcel

B to get to the home on Parcel A. The district court found that Peterson “credibly testified”

that he understood that he was purchasing Parcel B “as is,” subject to any legal

encumbrances existing as a result of the Improvements, the Permanent Driveway, and the

Permanent Septic System. Peterson acknowledged that he received a discount on the


                                             5
purchase price for buying an encumbered property. The district court issued its findings

of fact, conclusions of law and order in April 2015, realigning the northern border of Parcel

A and the southern border of Parcel B. This appeal follows.

                                     DECISION

       Appellant asserts three arguments on appeal. First, appellant claims that the district

court erred in its application of the doctrine of boundary by practical location (estoppel).

Next, appellant argues that the district court erred by determining that Parcel B is

encumbered by implied easements. Finally, appellant asserts that the district court erred

by determining that appellant is not a good-faith purchaser under Minn. Stat. § 508.25. We

address each argument in turn and deny appellant’s claims for relief.

                            I.     Boundary by Practical Location

       Peterson challenges the district court’s decision to realign the property boundary

under the doctrine of practical location by estoppel. Boundary by practical location is a

doctrine used to transfer title between deed holders. Slindee v. Fritch Invs., LLC, 760

N.W.2d 903, 907 (Minn. App. 2009) (citing Gabler v. Fedoruk, 756 N.W.2d 725, 728–29

(Minn. App. 2008)). A party may be deemed to have transferred title under this doctrine:

(1) by acquiescing in the boundary for a sufficient period of time to bar a right of entry

under the statute of limitations; (2) by expressly agreeing with the other party on the

boundary and then by acquiescing to that agreement; or (3) by estoppel. Id. (citing Theros

v. Phillips, 256 N.W.2d 852, 858 (Minn. 1977)). “The party considered the disseizor of

the land must present evidence that establishes the boundary’s practical location clearly,

positively, and unequivocally.” Id. A boundary determination presents mixed questions


                                             6
of fact and of law. Id. We review the district court’s factual determinations for clear error,

but determining whether the district court’s factual findings support its legal conclusions

is a question of law subject to de novo review. Id. (citation omitted).

       A party seeking relief under an estoppel theory must demonstrate that “[t]he party

whose rights are to be barred . . . silently looked on with knowledge of the true line while

the other party encroached thereon or subjected himself to expense which he would not

have incurred had the line been in dispute.” Theros, 256 N.W.2d at 858. “[E]stoppel

requires knowing silence on the part of the party to be charged and unknowing detriment

by the other.” Id. at 859. The district court applied the estoppel analysis and concluded

that Wells Fargo established that it was entitled to relief “as a matter of equity.” The district

court determined, based on the evidence produced at trial, that Peterson “obtained Parcel

B at a significant discount because he took it subject to the encroachments and that Wells

Fargo had no knowledge of the encroachments when it invested substantial amounts of

money toward a mortgage loan which later defaulted.”

       Peterson argues that estoppel does not apply because K.L. and F.L. owned both

parcels from 2005 to 2010, whereas Peterson did not become aware of the properties until

2010. Peterson admitted during trial that he became aware of the encroachments on Parcel

B “almost immediately” upon seeing the property, and acknowledged that he got a discount

for taking the property subject to the encroachments. The district court found that Peterson

knew of the encroachments when he negotiated for a lower purchase price with CitiBank,

while Wells Fargo had “no actual knowledge of the encumbrances” when it made the

mortgage loan to K.L. and F.L. The district court concluded that allowing Peterson to


                                               7
challenge the encroachments would be to the “significant detriment of Wells Fargo” and

“contrary to all equitable notions of justice,” and we agree. See Wenzel v. Mathies, 542

N.W.2d 634, 643 (Minn. App. 1996) (granting a district court broad discretion when

fashioning remedies to accomplish justice). We determine that the district court’s factual

findings are supported by the record and are not clearly erroneous, and we determine based

on our de novo review that the district court’s findings support its decision to realign the

property boundary under the doctrine of practical location by estoppel.

                                    II.     Implied Easements

       Peterson challenges the district court’s determination that Parcel B is encumbered

by an implied easement by necessity. “An easement by necessity falls within the general

category of implied easements, which arise only in specific fact situations.” Niehaus v.

City of Litchfield, 529 N.W.2d 410, 412 (Minn. App. 1995) (citation omitted). “An

easement implied by necessity is created when: (1) ‘there is a separation of title; (2) the use

which gives rise to the easement shall have been so long continued and apparent as to show

that it was intended to be permanent; and (3) that the easement is necessary to the beneficial

enjoyment of the land granted.’” Magnuson v. Cossette, 707 N.W.2d 738, 745 (Minn. App.

2006) (quoting Romanchuk v. Plotkin, 215 Minn. 156, 160-61, 9 N.W.2d 421, 424 (1943)).

The existence of an implied easement is determined at the time of severance and a

subsequent change of conditions does not defeat or create an implied easement. Clark v.

Galaxy Apartments, 427 N.W.2d 723, 726 (Minn. App. 1988).

       Peterson does not challenge the district court’s finding that there was a separation

of title and that the encroachments were “sufficiently continued and apparent to show it


                                              8
was intended to be permanent.” We inquire into whether the easements were necessary to

the beneficial enjoyment of the land at the time of severance in 2009, when Parcel A was

sold at a public foreclosure sale separately from Parcel B. See Lake George Park, L.L.C.

v. Mathwig, 548 N.W.2d 312, 313 (Minn. App. 1996) (noting that other jurisdictions view

that severance of title occurs when “possessory interests diverge”). To be “necessary,” an

easement must be more than a mere convenience, although it “need not have been

indispensable to be necessary; rather, a reasonable necessity at the time of severance is

sufficient.” Magnuson, 707 N.W.2d at 745 (citing Clark, 427 N.W.2d at 727). The party

asserting an implied easement bears the burden of proving its necessity. Id. We have

previously recognized that “[o]bstacles such as topography, houses, trees, zoning

ordinances, or the need for extensive paving, may create conditions where an easement is

necessary.” Id. (citation omitted).

       Peterson argues that the easements were not necessary because there was no

evidence produced at trial regarding the costs associated with remedying the

encroachments at the time of severance. Peterson relies on our decision in Niehaus, in

which we determined that the district court improperly evaluated the creation of an implied

easement, stating:

              The record reveals some discussion of the current cost of
              moving the utility lines, and the findings of fact reflect that
              removal now would be “expensive and very inconvenient.”
              However, this information carries no weight in determining the
              necessity of an implied easement. Absent any discussion of
              necessity at the time of severance, we must hold that the
              findings do not satisfy the third element either.

529 N.W.2d at 412 (internal citation omitted).


                                            9
       Niehaus is not persuasive. In that case, the City of Litchfield mistakenly built utility

lines outside of its easement area at the same time the property-owner was subdividing the

property to sell individual lots. Id. at 411. The city sought an implied easement against

the subsequent owner of one of those lots, and we held that the city could not show long

continued use because the severance was concurrent with the construction of the utility

lines. Id. at 412. In this case, it is undisputed that the implied easements were created in

1996 and 1999, several years before severance of title took place in 2009, and Niehaus

does not therefore guide our analysis.

       Here, the district court made the following factual findings: that the septic systems,

driveway access, and residential improvements played a “significant, and even crucial, role

in the use and enjoyment of property like Parcel A”; that “[t]he existing Permanent

Driveway and Permanent Septic System are necessary to the use, enjoyment and

marketability” of Parcel A; and that in the event the Improvements were relocated, “Parcel

A will be substantially less marketable . . . and the beneficial use and enjoyment of Parcel

A will be substantially affected.” Based on these factual findings, the district court

concluded that Wells Fargo met its burden of establishing that “the Improvements,

Permanent Septic System and Permanent Driveway are reasonably necessary and

convenient for the beneficial enjoyment of Parcel A.”

       The trial record supports the district court’s determination that the Improvements

were necessary and convenient to the beneficial use of Parcel A. The realtor testified that

the home on Parcel A was custom-designed and the design of the driveway is the “best

use” of the property. She testified that if the Improvements were relocated or moved, it


                                             10
would become “a problem for that house,” based upon how the house was constructed and

the slope of the elevation of the existing driveway. The general contractor testified that the

house’s floor plan was based on the home opening to the north as it is currently constructed,

and moving the garage’s apron pad would require “changing the inside” of the house to

accommodate a new entry point. The excavator testified that the slope on the south part of

the garage is steeper than on the north side, and agreed with the realtor’s testimony that

seasonal issues such as rain or snow would be more pronounced on the south side slope if

the driveway was relocated. The court also heard testimony that driveway access and septic

systems are important to the use and enjoyment of a home. The district court’s factual

findings that the septic systems and improvements played a “significant” role in the use

and enjoyment of Parcel A supports the legal conclusion that an easement by necessity

burdens Parcel B. Consequently, the district court did not err in concluding that the implied

easement was necessary to the beneficial use and enjoyment of the land. We therefore

affirm the district court’s decision that Parcel B is encumbered by an implied easement by

necessity.

                                  III.   Good-Faith Purchaser

       Lastly, we turn to the question of whether Peterson is a good-faith purchaser entitled

to protection under Minnesota’s Torrens Act, which provides that:

                     Every person receiving a certificate of title pursuant to
              a decree of registration and every subsequent purchaser of
              registered land who receives a certificate of title in good faith
              and for a valuable consideration shall hold it free from all
              encumbrances and adverse claims, excepting only the estates,
              mortgages, liens, charges, and interests as may be noted in the
              last certificate of title in the office of the registrar, and also


                                             11
              excepting any of the following rights or encumbrances
              subsisting against it, if any:

              (1) liens, claims, or rights arising or existing under the laws or
              the Constitution of the United States, which this state cannot
              require to appear of record;

              (2) the lien of any real property tax or special assessment;

              (3) any lease for a period not exceeding three years when there
              is actual occupation of the premises thereunder;

              (4) all rights in public highways upon the land;

              (5) the right of appeal, or right to appear and contest the
              application, as is allowed by this chapter;

              (6) the rights of any person in possession under deed or
              contract for deed from the owner of the certificate of title; and

              (7) any outstanding mechanics lien rights which may exist
              under sections 514.01 to 514.17.

Minn. Stat. § 508.25.

       The object of Minnesota’s Torrens law “is to afford a method of acquiring a decree

of registration and a certificate of title free, so far as possible, from all encumbrances and

adverse claims not noted on the certificate.” Konantz v. Stein, 283 Minn. 33, 37, 167

N.W.2d 1, 5 (1969). However, under section 508.25, “a purchaser of Torrens property who

has actual knowledge of a prior, unregistered interest in the property is not a good faith

purchaser.” In re Collier, 726 N.W.2d 799, 809 (Minn. 2007); In re Juran, 178 Minn. 55,

60, 226 N.W. 201, 202 (1929) (recognizing that the Torrens Act “does not do away with

the effect of actual notice”). The burden of proof rests on the party asserting actual

knowledge. Collier, 726 N.W.2d at 806 (citation omitted).



                                             12
       In its order, the district court concluded that “[p]rior to his purchase of Parcel B, Mr.

Peterson had actual knowledge of the Improvements, the Permanent Septic System and the

Permanent Driveway, all of which encroach onto Parcel B. Due to this, Mr. Peterson was

not a good faith purchaser entitled to protection under Minn. Stat. § 508.25.” Peterson

argues that the district court erred because Collier instructs that the term “unregistered

interests” is synonymous with the term “unregistered instruments.” 726 N.W.2d at 808

(“[T]o be a good faith purchaser of Torrens property, a purchaser cannot have actual

knowledge of previous, unregistered interests.”). Peterson notes that “[t]here are no

documents in existence, recorded or unrecorded, that reference the encroachments on

Parcel B,” and argues that actual knowledge cannot exist as a matter of law in light of

Collier’s statement equating “interest” with “instrument.”

       We do not agree with Peterson’s interpretation of Collier or with his argument that

only unrecorded instruments—as opposed to unrecorded interests—can support an actual-

knowledge finding. See, e.g., Minn. Stat. § 508.70 (providing statutory basis for claiming

an unregistered interest after registration “which does not appear on the certificate of title”).

In Konantz, the parties disputed a 90-foot strip of land lying between a tract of real estate

owned by respondent Konantz and a tract of real estate owned by appellant Stein. 283 at

35, 167 N.W. 2d at 3. The Konantzes were in possession of the 90-foot strip when

registration proceedings commenced, although there was no written instrument reducing

the Konantzes’s unregistered interest to writing. Id. at 38, 167 N.W.2d at 6. Stein argued

that the land was not subject to the Konantzes’s unregistered interest but our supreme court

disagreed:


                                               13
                      From the evidence in the present record, it is clear that
             Mrs. Stein was aware when she purchased the registered
             property in April of 1962 that the Konantzes were in
             possession of the easterly 90 feet of it. They were apparently
             using it at the time as a part of a sheep pasture enclosed and
             bounded by a fence. Mr. Stein testified that he saw and
             inspected this fence before the purchase and acknowledged
             that it raised a question as to the location of the boundary line.

                    ....

                    In view of this testimony, Mrs. Stein must be charged
             with the knowledge, at and before the time of purchase, that
             the Konantzes were in possession of this land. . . . [O]nce she
             became aware that the land in dispute was in the actual
             possession of a person other than the prospective vendor, it
             became her duty to ascertain the nature and extent of the
             possessor’s rights and, having failed to do so, she must be
             charged with the knowledge that the inquiry would have
             disclosed.

Id. at 41-42, 167 N.W.2d at 7-8 (footnote omitted).

       A similar situation exists here. The trial testimony is replete with evidence that

Peterson knew that the driveway, buildings, and the septic system encroached upon Parcel

B, and used that information to negotiate a lower purchase price for the property. Peterson

testified that he understood he was taking Parcel B “as is,” subject to encroachment of the

driveway, the buildings, and the septic system. Peterson stated that he reviewed the title

insurance commitment accompanying the property purchase, including that portion of the

document regarding exceptions.       The exceptions included statements that Peterson

purchased the property “[s]ubject to encroachment of adjoining property owner’s house

and septic system over the southerly property line as disclosed by inspection,” and

“[s]ubject to encroachment of driveway of property owner to the south over property line.”



                                            14
Peterson agreed that he was aware of these encroachments before he purchased Parcel B.

In view of his own testimony, the district court did not err in determining that Peterson had

actual knowledge of the encumbrance and was not a good-faith purchaser entitled to

statutory protection.

       The recent case of Burkhalter v. Mays considered the protections afforded to good-

faith purchasers and to good-faith encumbrancers of Torrens property. 877 N.W.2d 788

(Minn. App. 2016). We noted that a “good-faith purchaser is protected if he lacks actual

notice of an interest not memorialized on the certificate of title,” but cited Collier for the

proposition that “[t]he limits of the actual-notice exception are undefined.” Id. at 794

(citing In re Collier, 726 N.W.2d at 809). Burkhalter conducted a review of relevant

caselaw and noted that “the actual-notice exception is narrow.” Id. (citations omitted).

Based on the unique facts of that case, the Burkhalter court found that “no documents

memorialized any other extant interest or claim to an interest” on the encumbered property,

and further found that “the facts allegedly or . . . known to [the mortgage lender] are

insufficient” to constitute actual notice of the equitable-mortgage.           Id. at 794-95.

Burkhalter concluded that the lender did not possess actual knowledge of the homeowner’s

interest in the property sufficient to defeat the lender’s good-faith defense. Id. at 795. For

the reasons stated above, we find that sufficient evidence of actual knowledge exists in this

case. The Burkhalter opinion “[did] not attempt to decide what minimum facts might

constitute actual notice.” Id. In this case, sufficient facts exist in the record to support the

district court’s determination that Peterson had actual notice of the encumbrances. The




                                              15
district court did not err in concluding that Peterson was not a good-faith purchaser entitled

to protection under Minnesota’s Torrens Act, Minn. Stat. § 508.25.

       Affirmed.




                                             16
