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Freidig v. Weed

Supreme Court of North Dakota

August 25, 2015

Allan M. Freidig and Robin K. Freidig, Plaintiffs and Appellees
v.
Laura J. Weed, a.k.a. Laura Weed; and all other persons known or unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the Complaint, Defendants, Laura J. Weed, a.k.a. Laura Weed, Appellant

Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.

John T. Traynor, Jr., Devils Lake, N.D., for plaintiffs and appellees.

Clint D. Morgenstern, Grand Forks, N.D., for defendants and appellant.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.

OPINION

Page 547

Carol Ronning Kapsner, Justice.

[¶1] Laura Weed appeals from a judgment reforming a warranty deed and quieting title in a tract of land to Allan and Robin Freidig. Weed argues the district court erred in reforming the warranty deed. We conclude the court did not clearly err in determining a mutual mistake was made in describing the property conveyed in the warranty deed. We affirm.

I

[¶2] In 2003, Weed hired David Hovendick, a registered land surveyor, to survey her house and a five-acre tract of land around her house on the east side of Devils Lake for her lender. According to Hovendick, Weed informed him that she did not want to include any land under Devils Lake in the survey because she did not want the submerged land encumbered by her mortgage. Hovendick's certificate of survey followed Weed's instructions and does not reference the Devils Lake shoreline nor does it extend her property's boundary line below the shoreline.

[¶3] In 2004, Weed hired Hovendick to survey and evenly divide another tract of land south of her five-acre parcel into two lots, each about one acre in size. Hovendick's certificates of survey for both lots said the " [p]roperty lines shall extend or shorten to the water's edge with the rise and fall of Devils Lake dictating the West boundary line/shoreline of said property." According to Hovendick, he used witness corners for those two lake front lots rather than monument corners so an owner could identify the property line as the water rises or falls and he would have used monument corners if Weed had instructed him to set the property corners of those two lots at the shoreline.

[¶4] In 2004, Weed employed the Freidigs' real estate firm to sell one of the

Page 548

lots as " lake front property" with " excellent slope to water." The lot was sold to John and LaMae Henry by warranty deed describing the west boundary of the conveyed land in language tracking Hovendick's certificate of survey that the property lines shall extend or shorten to the water's edge with the rise and fall of Devils Lake dictating the west boundary of the lot.

[¶5] In 2005, Weed employed the Freidigs' real estate firm to sell the other lot as " lake front property" with " excellent slope to water." The lot was sold to Marty Robertson by warranty deed describing the west boundary of the lot " along said water's edge" of Devils Lake and containing " 0.97 acres more or less." The deed was prepared by the same attorney who prepared the earlier Weed-Henry deed and stated the legal description for the lot was obtained from Hovendick's certificate of survey, but the deed did not contain the language describing the west boundary of the lot as extending or shortening to the water's edge with the rise and fall of Devils Lake. According to the attorney who prepared the deeds, he did not recall any specific ...


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