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  Wednesday July 30th, 2014    

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Boundary meeting gets contentious (08/24/2008)
By Cynthya Porter

The Boundary Commission meeting in Elba Tuesday teetered on the brink of chaotisc when a family unhappy with the process came in force to voice their outrage.

Members of the Winona County Boundary Commission scheduled the meeting at the Elba Town Hall to review their proposal for Lot 80, a tract of land fraught with dispute for more than a decade.

Controversy in Lot 80 started after a survey in 1975 incorrectly marked the center of the section, causing each parcel subdivided from that point to be sometimes dozens of feet off the official survey marks set in the 1850s.

A subsequent survey in 1998 redrew boundaries correctly, but the shift had property owners significantly encroaching onto their neighbors’ land, sometimes for 30 years or more.

After studying surveys, land deeds and actual usage for the better part of a year, commissioners arrived at a proposed compromise to resolve the disputes, but some property owners want no part of it.

Just as Dave Johnson from Johnson and Scofield Land Surveyors in Wabasha began to address the crowd in the town hall, Jose Rico, clutching a stack of documents, rose from his seat and approached Johnson.

Rico, along with his wife Betty Jo, owns 3.24 acres in the disputed area, and the pair have been at war for ten years against neighbor Gary Thelen.

Rico, who has not attended any of the previous boundary commission proceedings, waived his immigration papers in the air and said that he is a U.S. citizen and has the same rights as everyone else.

He called Winona County Surveyor Pat Veraguth a crook and said the Boundary Commission is trying to steal his land.

Rico challenged the group’s authority, saying a court case about the boundary dispute in 2004 clearly gives the Ricos the land Thelen thought he bought and built his house on. “Who gave you permission to do what the court has already decided?” he demanded.

Johnson explained that Minnesota Statutes empower counties to step in to solve boundary disputes like the one in Elba. “The whole procedure is specified in state statutes,” he said. “We’re not dreaming it up. It’s been done before, not many times in Minnesota, but it’s been done.”

Rico became increasingly upset, launching into a long rebuke against Veraguth and the Boundary Commission and defying them to try to alter boundaries he said the court had already established. “You cannot move my land to the south or give my land to this guy,” he said, gesturing at Thelen sitting a few feet away.

At the end, Rico made a spitting sound, prompting Boundary Commission member Jeff Broberg to pound on the table and call him out of order.

The proposal being put forward by the Boundary Commission largely redraws boundaries back to those on the survey of 1975 with a few other adjustments, and Johnson told Rico he is getting the full width of his property including a hotly contested deed gap along the south border.

But Rico contended that he just purchased that deed gap outright from the presumed owner, something several other parties have also claimed doing. “You did not give that to me, I bought it,” Rico said.

Several years ago in an attempt to resolve the boundary dispute, Thelen purchased a tract of land to the south of the Rico parcel and tried to trade it to them in exchange for the three dozen feet his home encroaches across the line.

The Ricos refused that offer, but developed fence lines and a road across the deed gap and into the south parcel, claiming it was theirs because of adverse possession.

When Judge Lawrence Collins ruled on the matter in 2004, he only confirmed that the 1998 survey appeared to be valid, placing Thelen’s house over the property line. He made no recommendations about the south property line in that ruling.

Regarding that previous ruling, Johnson told Rico, “We don’t have the authority to overrule a court but another court does.”

Johnson also told Rico that he would have the opportunity to voice his concerns about the proposed boundary resolution at a public hearing and to a judge when the matter goes to court for review.

But Rico remained standing and accused the Boundary Commission of being malicious when it proposed drawing the boundary line back to the 1975 survey so Thelen’s house does not cross onto the property of the Ricos.

Though he is not listed as an owner of any property on the preliminary drawing, Russell Graves, Betty Jo Rico’s father, joined Rico at the front of the room and echoed his sentiments. “His [Thelen’s] house is half on my land and my land is not for sale,” Graves said.

From the back of the room, Betty Jo’s sister Robin Graves joined the chorus of voices, saying the proceedings were “a bunch of crap” and that the Boundary Commission was giving away her inheritance.

In a tone increasingly angry, Graves lambasted Thelen, the Boundary Commission, and the Winona Post for its coverage of the Elba disputes. At the point when Graves started to swear, Broberg pounded heavily on the table and said her conduct was out of order.

“We’ve asked you people to come forward with information,” Broberg said, “but you’ve refused to do that. Rico, this is the first time I’ve ever seen you in my life. You aren’t the only game in town here, there are other disputes and they need to be resolved and we’re going to do so in a civil manner.”

Robin Graves, who is part owner in the land to the east of Thelen, acknowledged that when Thelen built his home he put it on an existing foundation for the home of the previous property owner, her brother Jack Graves.

Veraguth told Robin Graves that with the new boundaries she would actually get nearly a third of an acre more than she currently owns, but for Graves that was not the point.

“Does this mean I could go to the White House and slap a house on the lawn and expect you to let me leave it there?” she asked. “Why are you going out of your way to help this guy? You’re going to give away my inheritance to someone who doesn’t even get along with my family. Wouldn’t it upset you? What would you do?”

“I would try to accommodate my neighbor,” Johnson replied, “especially understanding his perspective, that he’s shown on paper and in person a foundation that they said was on his property. I would make an accommodation.”

After members of the Rico/Graves family sat down, Thelen said, “I don’t think any pins you put in there are going to make a difference. They’ve encroached on everyone’s property since the (1998) survey. I hope you resolve it because I’ve been through ten years of hell.”

Thelen said it was professional surveyors, not land owners, that created the original problem. “I feel bad at this family fighting and feuding the way they are, but I didn’t start this,” he said. “I built a house on an existing foundation.”

A new survey prior to building might have caught the boundary problem, but Johnson said most land transactions are conducted without one. “Land transfers without a survey are in the majority,” he said. Just recently Winona County began requiring surveys under certain conditions, he explained, but many simple transfers still do not need a survey.

If there is a moral to this story, Veraguth has said in the past, it is that a survey is worth the cost and should always be done when buying or selling land.

The remaining property owners in Lot 80 had little to say about the adjustments to their boundaries, many having arrived at compromises with their neighbors prior to the meeting.

For others, there was frustration at the situation, but an air of acceptance that something must be done.

Members of the Simon family who own land to the south of the Rico and Graves parcels were upset that the deed gap and more would be given to those families to accommodate their encroachment onto Simon land.

And confusion over land descriptions is leaving Elmer Peterson with an acre less than he thought he had though he has paid taxes on that acre for decades.

A slightly shifting creek between Peterson and Dave Hammel will also get a new boundary description, with the division running down the center of the stream instead of being fixed to survey irons.

According to Veraguth, commissioners used an ascending list of considerations to make their boundary recommendations, including right of possession, senior rights in the case of overlapping boundary descriptions, and the written intentions of the parties when outlining the parcel.

Following those guidelines, the commission did the best it could, he said. “We tried to be fair to everybody. Some people gained, and some people lost, but we felt the intent of the 1975 survey and held those lines,” he explained.

Boundary Commission members will meet again September 15 to discuss any modifications to the recommendation. Due to time constraints for preparing a final plat to present to the County Board, the commission postponed the public hearing originally scheduled for September 23 until the end of October.  

 

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