Petition of Geis

AMUNDSON, Judge

(dissenting).

I respectfully dissent. This case was tried as a boundary dispute. The gravamen of the action is the proper manner to determine the boundary line between two adjacent government lots. These lots abut a meandered lake, which had little appreciable reliction or accretion. Appellants’ land was registered without a judicial determination of boundaries. Respondents’ land was not registered. The trial court determined that the disputed line deflected at the meander line to a point in the middle of the lake as shown on one of the surveys. Neither party disputes this decision on appeal.

The trial court, however, appeared concerned that this decision would deprive respondents of land they had occupied for many years. . The trial court concluded that because appellants’ land was registered, respondents had no defense to this proceeding subsequent to a boundary determination. The court determined that if appellants’ predecessor in title had determined the boundaries in the original registration, respondents would have had those defenses.

The basic premise of the trial court is incorrect. Respondents could have counterclaimed for a reformation of the description on appellants’ certificate of title on the quit claim deed they gave Farrell prior to regis*752tration. They did not. Respondents obviously thought they could win on the strength of their expert surveyor. The ease was tried as a survey dispute and not as a reformation action, which presumably would have been tried differently by appellants.

Minnesota law, in the torrens statute, makes an order for judicial landmarks mandatory. See Minn.Stat. § 508.671, subd. 2 (1996) (providing court shall file and establish boundaries and direct establishment of judicial landmarks). Prior to 1986, boundaries of registered land were determined by Minn. Stat. §§ 559.23, 559.24, and 559.25. It is important to note Minn.Stat. § 559.25 does not require judicial landmarks. The language in this statute is permissive and states in relevant part:

The judgment shall locate and define the boundary lines involved by reference to well-known permanent landmarks, and, if it shall be deemed for the interest of the parties, after the entry of judgment, the court may direct a competent surveyor to establish a permanent stone or iron landmark in accordance with the judgment, from which future surveys of the land embraced in the judgment shall be made.

Minn.Stat. § 559.25 (1996) (emphasis added). However, the language added' to section 508.671 in 1986 is mandatory and requires:

Before the issuance of any final order determining the location of the owner’s boundary lines, the court shall fix and establish the boundaries and direct the establishment of judicial landmarks in the manner provided by section 559.25.

Minn.Stat. § 508.671, subd. 2 (emphasis added). In this case, the trial court must follow section 508.671, which specifically states the court “shall” order judicial landmarks.

Because Minn.Stat. § 508.671, subd. 2 requires the court to direct the establishment of judicial landmarks, the question arises: Where should those monuments be placed? In this case we ask: If title to land is registered without judicial determination of the boundary, can the land then be ground-located either by an erroneous survey or the unstated intention of the registrant? I think not. The act of registration is not a conveyance and thus even if the description is ambiguous there is no support for the inclusion of evidence of parties’ intent. The trial court properly found that the common boundary between Lots 3 and 4 is the line shown on the Sheppard survey. This is not disputed on appeal. Respondents’ only claim is to the east line of Government Lot 4. There is only one east line of Government Lot 4. Judicial landmarks should be set on the line shown by the Sheppard survey, the line that defines the westerly line of the land described on appellants’ certificate of title.

Were appellants avoiding possible defenses in this proceeding subsequent which would have been available to respondents in the original registration action? The trial court seemed convinced and by a memorandum accompanying the findings, stated:

If a claim was made at [the] * * * time of the original registration it is possible they would have had a defense to the registration based on adverse possession or boundary by practical location. * * *
By seeking to acquire the land by a proceeding [sic] subsequent, the Petitioner has avoided these possible defenses.

(citations omitted.) In fact, of course, respondents had their options. They could have counterclaimed for practical location of the boundaries, reformation of the description on the quit claim deed, or for a reformation of the description on appellants’ certificate of title. They did none of these things. Respondents chose not to attack the description on the quit claim deed or on appellants’ certificate of title. The statute provides for reformation of a written instrument:

(a) Before a court of equity will interfere to reform a written instrument it must appear, substantially as alleged in the pleadings, that there was in fact a valid agreement sufficiently expressing in terms the real intention of the parties; that there was in fact a written contract which failed to express such true intention; and that this failure was due to mutual mistake, or to mistake of one side and fraud or inequitable conduct of the other, (b) These facts must be established by competent evidence, which is consistent and not contradictory, clear and not equivocal, convincing *753and not doubtful. Mere preponderance of testimony is not sufficient, (c) Such relief will be extended to those only who have not by their own conduct (as laches, negligence, or otherwise) put themselves in such a position as to render it unjust to change the situation, especially when such change might injuriously affect the rights or status of innocent third parties.

Fritz v. Fritz, 94 Minn. 264, 266, 102 N.W. 706, 706 (1905). In fact, a certificate of title may be altered by order of the court upon any reasonable ground. Minn.Stat. § 508.71, subd. 2 (1996); see also Nolan v. Stuebner, 429 N.W.2d 918, 924 (Minn.App.1988) (affirming trial court alteration of certificate of title which amended easement and reformed certificate of title), review denied (Minn. Dec. 16,1988).

Appellants did not ask the court to amend the deed or the certificate of title, and the trial court erred when it held that appellants avoided possible defenses by bringing a proceeding subsequent rather than an original registration. Appellants ignored their possible defenses and elected to try the case as a dispute over the proper method of surveying this riparian land. Judgment should be reversed.