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No answer for Elba property disputes (02/10/2013)
By Sarah Squires

Cost of failed efforts to find solution may be assessed to landowners

A land dispute in Elba that has raged for nearly 15 years may be over, but without a resolution to the property line problems.

A boundary commission was appointed by Winona County leaders in 2007 to deal with the results of an incorrect survey done in the area in 1975, but a judge recently dismissed the group after years of work.

Now, the Winona County Board is expected to discuss whether to assess tens of thousands of dollars in expenses resulting from that boundary commission to the property owners in Lot 80, despite the fact the commission's efforts failed.

Because the most substantial property-line dispute—a line that cut through the late Gary Thelen's home—was not solved, it appears the 5,000-square-foot fieldstone and pegged timber house will be demolished for lack of a better answer.

On the list of expenses is a $19,000 survey done for the Boundary Commission, along with other costs from work done by the Winona County Attorney's Office, the Winona County Recorder's Office, the Winona County Surveyor, as well as costs associated with "title opinions" created for each parcel.

36 feet

The biggest problem in Lot 80 in Elba Township is the line between Thelen and his neighbor, Jose Rico's parcels. A survey blunder in a 1975 survey skewed property lines after surveyors failed to use a proper survey marker, essentially shifting parcel boundaries between lots. Since the incorrect survey, homes were built, driveways cut and fences erected, and a 36-foot shift between the two parcels put the property boundary through Thelen's living room. Thelen then purchased property to the south of the Rico parcel in an effort to have the lines redrawn along the mistaken 1975 survey path, which would have spared his home as well as the Rico's driveway.

When the property line between Rico and Thelen's parcels is moved those 36 feet and into Thelen's living room, the rest of the boundaries in Lot 80 shift, presenting a host of changed parcel lines. None, however, presents the challenges of the the intensely disputed Rico and Thelen boundary, nor do they interrupt other structures or homes.

Thelen and Rico argued the issue for years, and the boundary commission was formed in 2007 as an effort to put the issue to rest in a way that would satisfy all the property owners in Lot 80. After four years of work on the issue, the boundary commission had worked with Thelen and Rico on a solution, preparing to craft a recommendation to resolve the issue. But those years of work were lost in 2011, when Winona County District Court Judge Mary Leahy ruled that the commission must use a parcel boundary from a survey done in 1998—the one that cut through Thelen's home.

After hearing the news, visibly frustrated members of the boundary commission took issue with Judge Leahy's decision, attributed by Winona County Attorney Karin Sonneman to a desire by Leahy not to stray from a former ruling by Judge Lawrence Collins in 2004 that placed the property line through Thelen's home. Boundary commission member Jeff Broberg said during the last commission meeting that Judge Collins was not privy to all of the relevant information when the 2004 decision was rendered. He said the commission had been given legal advice from county leaders indicating that it should examine all of the relevant data, including information not considered in the Collins' ruling, because that decision created a host of other boundary problems in Lot 80. Broberg said the commission had spent years on a solution to the boundary dispute between Rico and Thelen's parcels, expressing dissatisfaction with the thought the commission has wasted years of work. "Wasn't it our responsibility to resolve this?" he asked during the meeting. "And now we're told we can't because of an earlier ruling, whether it was erroneous or not."

Following the order from Judge Leahy to have the Thelen and Rico boundary cut through Thelen's home, the Boundary Commission sent the problem back to Leahy. Broberg cited statute language that compelled Judge Leahy to produce plats for the disputed properties and make a final ruling over all of the parcels in Lot 80. Because of the vast amount of work that would be needed to adhere to Judge Leahy's order and create a new solution, Broberg suggested the commission not back down from its recommendation, and ask the judge to figure out what to do.

Thelen passed away in December, 2012, after a battle with cancer. Last month, Judge Leahy issued an order to dismiss the boundary commission. According to Winona County officials, the commission "feels we are out of options to resolve this predicament."

While there may not be a resolution to the dispute that has gone on for nearly 15 years, there is a price tag for the fruitless efforts of the boundary commission. That cost, at least $19,000, may be assessed to property owners in Lot 80. "Since the court dismissed the case, the land owners will not be getting any value or solution for all the work done by the boundary commission," says the county staff summary of the issue, which will be presented to the Winona County Board on Tuesday. Board members are expected to begin the debate about whether residents of Lot 80 should foot the bill when it comes to the failed work of the boundary commission.  


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