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affirming judgment establishing roadway as boundary
Summary of this case from Panciera v. Ashaway PinesOpinion
No. 6-034 / 05-1157
Filed March 1, 2006
Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.
Plaintiffs appeal the district court judgment for defendants in this quiet title action alleging a boundary by acquiescence. AFFIRMED.
Dan McClean of McClean Law Office, Dyersville, for appellants.
Peter D. Arling of O'Connor Thomas, P.C., Dubuque, for appellees.
Considered by Sackett, C.J., Mahan, J., and Beeghly, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
This case involves a boundary dispute regarding two parcels of property in rural Dubuque County. On September 3, 1970, a quit claim deed was recorded showing Joseph McAllister, Angelina McAllister, Robert McAllister, and Margie McAllister transferred Lot 2 to Gerald and Rita Schwendinger. The deed stated the property consisted of one and one-half acres more or less. Lot 2 is a square piece of property north of McAllister Road, about one-half acre in size. McAllister Road runs diagonally past Lot 2, touching just the southwest corner of the lot. The McAllisters retained the property south of McAllister Road.
The disputed parcel "A" is a small triangular piece of land immediately to the south of Lot 2, with McAllister Road marking the southern border of the parcel. Disputed parcel "B" is a longer, narrow triangle of land, immediately to the west of Lot 2, and it also has McAllister Road as its southern border. The disputed property lies north of McAllister Road.
The district court decision refers to parcel "A" as "B", and vice versa. We use the designations found on the map the parties used as an exhibit during the trial.
From 1970 until 2000, the Schwendingers and McAllisters regarded McAllister Road as the boundary between their properties. In 2000, the Schwendingers sold their property to Loras and Mary Feldmann. The Feldmanns also believed McAllister Road was the southern boundary of their property. In 2001, in anticipation of selling his property, Robert McAllister commissioned a survey. The survey showed that the McAllisters had retained title to the two disputed parcels of property. The McAllisters sold their property to Robert and Theresa Ostwinkle.
The Ostwinkles approached the Feldmanns in 2001, stating they owed rent for farming the disputed parcels of land. The Feldmanns paid seventy dollars, seeking to avoid any further disputes. The Feldmanns rented the property to Celester Rausch in 2002 and 2003. In 2003 the Ostwinkles demanded rent from Rausch, who paid them in order to avoid further controversy.
In March 2004 the Feldmanns filed the present quiet title action against the Ostwinkles, claiming that by acquiescence McAllister Road had become the boundary between their properties. The Ostwinkles disputed this claim, pointing out that the 1970 deed did not transfer the property to the Schwendingers. The Ostwinkles asserted that the McAllisters had retained the property in question in 1970 and had subsequently sold it to them in 2001.
At the trial, Rita Schwendinger, and her adult children John and Bill, testified they had always treated McAllister Road as the southern boundary of their property. Edwin Horsfield, who owned the property to the east of Lot 2 and parcel A, testified he believed the Schwendingers and McAllisters treated McAllister Road as the boundary between their properties. Rausch, who had done custom farm work for the Schwendingers and McAllisters in the 1970s testified McAllister Road was treated as the boundary between the parties' properties. Robert McAllister admitted that from 1961 until 2000 he treated McAllister Road as the northern boundary of his property.
The district court determined the Feldmanns had established a boundary by acquiescence. The court found:
[I]t is clear that for a least 30 years continuously Lot 2, Parcel A, and Parcel B were considered by Robert and Margie McAllister and Gerald and Rita Schwendinger (and subsequently Plaintiffs) as real estate owned by Gerald and Rita Schwendinger. Accordingly, they considered McAllister Road to be the boundary line. Anything that transpired as a result of the 2001 survey has no probative value on the issue of acquiescence.
The Ostwinkles appeal the district court decision.
II. Standard of Review
Generally, actions to quiet title are conducted as equitable proceedings. See Iowa Code § 649.6 (2003). An action to establish a boundary by acquiescence, however, is brought under section 650.14. An action brought under chapter 650 is a special action and is heard on appeal as an ordinary action. Iowa Code §§ 650.4, .15. Our review in such a case is for the correction of errors at law. Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997). "The district court's judgment has the effect of a jury verdict; thus, we are bound by the district court's findings of fact if supported by substantial evidence." Id.
III. Boundary by Acquiescence A. Background Principles.
Section 650.14 provides:
If it is found that the boundaries and corners alleged to have been recognized and acquiesced in for ten years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established.
The term "acquiescence" has been defined as follows:
It is the mutual recognition by two adjoining landowners for ten years or more than a line, definitely marked by fence or in some manner, is the dividing line between them. Acquiescence exists when both parties acknowledge and treat the line as the boundary. When the acquiescence persists for ten years the line becomes the true boundary even though a survey may show otherwise and even though neither party intended to claim more than called for by his deed.
Id. (quoting Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980)).
A party seeking to establish a boundary by acquiescence must present clear evidence. Egli v. Troy, 602 N.W.2d 329, 333 (Iowa 1999). The adjoining landowners must each have knowledge of and must each have consented to the boundary line. Tewes v. Pine Lane Farms, Inc., 522 N.W.2d 801, 806 (Iowa 1994). Acquiescence may be "inferred by the silence or inaction of one party who knows of the boundary line claimed by the other and fails to take steps to dispute it for a ten-year period." Id.
B. Mutual Mistake.
The Feldmanns cite an Illinois case for the proposition that a boundary by acquiescence cannot arise if the parties are mutually mistaken concerning the correct property line. See Schlenz v. Dziersynski, 481 N.E.2d 287, 289 (Ill.Ct.App. 1985). They assert that prior to the 2001 survey the McAllisters were not aware that they owned property north of the road and state that the parties were mutually mistaken as to the correct boundary between their properties.
The law in Iowa, however, is that acquiescence may be established "even though neither party intended to claim more than called for by his deed." Ollinger, 562 N.W.2d at 170. Acquiescence in a boundary other than the survey line has been shown even where "both parties stated they intended to claim only the land called for by their deeds. . . ." Pruhs v. Stanlake, 253 Iowa 642, 645, 113 N.W.2d 300, 302 (1962). Even if the McAllisters were unaware of the correct property line, a boundary by acquiescence may be proven under section 650.14. We conclude the rule of Schlenz is not applicable in Iowa.
C. Time Period.
The Ostwinkles contend the district court erred in finding that the 2001 survey, and the parties' actions as a result of the survey, were not probative. They assert that the conduct of the parties after the survey shows there was no acquiescence in McAllister Road as the boundary between the two properties.
A similar situation was addressed in Tewes, 522 N.W.2d at 808, where the parties' predecessors in interest had acquiesced in a boundary since at least 1975. The supreme court stated:
Although Tewes took action such as putting steel posts on the survey line and planting his crop to the survey line once he took possession of the property, his actions were too late. The required ten-year period for acquiescence under Iowa Code section 650.14 had run by the year 1991 when Tewes became the owner of the northern tract.
Tewes, 522 N.W.2d at 808.
In the present case, the Ostwinkles' predecessors had acquiesced in McAllister Road as the boundary since 1970. The district court properly found that by the time of the 2001 survey the boundary had already been established, and the parties' actions after the survey were irrelevant.
We recognize that a boundary by acquiescence is not established, without court order, as soon as the prerequisite circumstances exist. See Heer v. Thola, 613 N.W.2d 658, 661 (Iowa 2000). We determine, however, that under Tewes the time requirement in section 650.14 can be completed prior to the time a lawsuit is filed. See Tewes, 522 N.W.2d at 808.
D. Lack of Knowledge.
The Ostwinkles claim the McAllisters could not have "acquiesced" in McAllister Road as the boundary line because they were unaware that it was not actually the boundary line. The Ostwinkles suggest that acquiescence occurs only when the parties knowingly agree to a boundary line other than the actual boundary line.
As noted above, acquiescence may occur "even though neither party intended to claim more than called for in his deed." Ollinger, 562 N.W.2d at 170. Also, "[b]oth parties must be aware that the asserted boundary line is being treated as a boundary." Id. Thus, the parties must both have knowledge of the boundary alleged to be created by acquiescence, but there is no requirement that the parties know the actual boundary line is something other than the acquiesced boundary. See id. Therefore, the McAllisters' lack of knowledge of the actual boundary line does not prevent a finding of boundary by acquiescence.
E. Statute of Frauds.
The Ostwinkles objected to the testimony of Rita Schwendinger based on the statute of frauds, section 622.32. The district court overruled the objection, and the Ostwinkles contend the district court erred in this regard. They claim Rita Schwendinger should not have been permitted to give oral testimony in variance with a written deed. See Sun Valley Iowa Lake Ass'n v. Anderson, 551 N.W.2d 621, 630 (Iowa 1996) (noting that oral promises to convey interests in real estate fall within the ambit of the statute of frauds).
The Feldmanns' claims were not based on oral promises to convey parcels "A" and "B". We conclude the statute of frauds was not applicable in this case, and the district court did not err in overruling the Ostwinkles' objection based on the statute of frauds.
We affirm the decision of the district court.