Opinion
No. 3-214 / 02-0835
Filed June 13, 2003
Appeal from the Iowa District Court for Scott County, Mark Smith, Judge.
Plaintiffs appeal the district court ruling a property line boundary was created by acquiescence and dismissal of claims for injunctive relief, quiet title, and trespass. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Steven Jacobs and Jean Dickson Feeney of Betty, Neuman McMahon, L.L.P., Davenport, for appellants.
Theodore Priester, Davenport, for appellees.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Richard and Joanne Bartsh appeal the district court's determination a property line was created by acquiescence pursuant to Iowa Code section 650.14 (2001) and the district court's dismissal of their claims for injunctive relief, quiet title, and trespass of land. We affirm in part, reverse in part, and remand.
Background Facts . In 1978 Gene and Elizabeth Mueller (the Muellers), purchased Lot 12 of Century Oaks First Addition in Bettendorf, Scott County, Iowa. A farm with a cornfield bordered the property on the east. In 1980, the Muellers built a tennis court on the property. In preparation for construction of the tennis court, the Muellers had a survey performed on the land. The survey crew placed flags along the property line. However, during the grading process of the land, the flags were lost as was an "ancient" barbed wire fence that approximated the property line. The tennis court was built at an angle with the northeastern corner extending beyond the Muellers' easterly property line. The Muellers were unaware of the encroachment on the adjacent land.
In 1992, Richard and Joanne Bartsh (the Bartshes), purchased Lot 9 in the Settlement at Pigeon Creek First Addition in Bettendorf, Iowa. Lot 9 was located east of the Muellers' property where the farm and field were located. While the Bartshes were unaware of the exact location of their property line, they assumed it was east of the Meullers' tennis court fence. They knew from the plat map of their lot that their western boundary line was straight but were unsure about its exact location. Both the Muellers and the Bartshes believed the tennis court to be located completely on the Muellers' property.
In 1999, the Muellers had another survey performed while refinancing their home. The survey showed the tennis court encroached upon the Bartshes' land by 12.2 feet at the furthest easterly point. The Muellers hired another survey crew to get a second opinion. The second crew confirmed the tennis court encroached on the Bartshes' property by 12.2 feet. Gene Mueller faxed the Bartshes the survey and a note that Gene's business manager would be contacting them to resolve the matter. Without further action from the Muellers, the Bartshes commenced this action in June 2001. After a bench trial, the district court found the boundary between Lot 12 and Lot 9 was created by acquiescence, extending the Muellers' property in a straight north/south line by 12.2 feet to include the tennis court and fence. The Bartshes appeal. Scope of Review . This case was tried pursuant to Iowa Code chapter 650 as an action at law. Harvey v. Platter, 495 N.W.2d 350, 351 (Iowa Ct.App. 1992) (citing Sille v. Shaffer, 297 N.W.2d 379, 380 (Iowa 1980)). As such it will be reviewed for errors at law. Iowa R.App.P. 6.4; Harvey, 495 N.W.2d at 351 (citing Drake v. Claar, 339 N.W.2d 844, 846 (Iowa Ct.App. 1983)).
Because we affirm that a boundary was created by acquiescence, we need not address the Bartshes' claims of quiet title and trespass.
Boundary by Acquiescence . The Bartshes appeal the district court's determination a boundary line was created by acquiescence pursuant to Iowa Code section 650.14. The statute 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." Iowa Code § 650.14. In other words, "a boundary line may be established by a showing that the two adjoining landowners or their predecessors in title have recognized and acquiesced in a boundary line for a period of ten years." Tewes v. Pine Lane Farms, Inc., 522 N.W.2d 801, 806 (Iowa 1994) (citations omitted).
Acquiescence, in these circumstances, is defined as:
the mutual recognition by two adjoining landowners for ten years or more that 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.
Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997) (quoting Sille, 297 N.W.2d at 381). A party seeking to establish a boundary line other than the line shown in a survey must prove acquiescence by clear evidence. Egli v. Troy, 602 N.W.2d 329, 332 (Iowa 1999) (citing Tewes, 522 N.W.2d at 806).
Acquiescence requires notice or knowledge of both parties to the asserted property line. Egli, 602 N.W.2d at 333; Ollinger, 562 N.W.2d at 171; Petrus v. Chicago, 245 Iowa 222, 228, 61 N.W.2d 439, 442 (1953). Acquiescence need not be express but may be inferred from silence or inaction of one party who is aware "of the boundary line claimed by the other and fails to take steps to dispute it for a ten-year period." Tewes, 522 N.W.2d at 806 (citing Dart v. Thompson, 154 N.W.2d 82, 84-85 (Iowa 1967)). Determining whether a boundary by acquiescence has been created requires an inquiry into the factual circumstances of each case. Ollinger, 562 N.W.2d at 171 (citing Tewes, 522 N.W.2d at 808).
The Bartshes assert the tennis court fence was not intended as a boundary but rather a barrier to keep the tennis balls within the court. The Muellers find this assertion irrelevant as the parties had mutually recognized the fence as demarcating the boundary. "[A]cquiescence in the existence of a fence as a barrier, not as a boundary, is not such recognition as will establish it as a true line." Harvey, 495 N.W.2d at 352 (citing Ivener v. Cowan, 175 N.W.2d 121, 122 (Iowa 1970)). A fence, not erected as a boundary, "may later become a boundary if the adjoining landowners acquiesce in it as such for the statutory period of ten years." Id. (citing Mahrenholz v. Alff, 253 Iowa 446, 452, 112 N.W.2d 847, 850 (1962)). Gene Mueller testified he and his wife believed the property line to be a few feet east of the tennis court. The Bartshes testified they did not know the exact location of their westerly property line but treated the utility poles located east of the tennis court as near the center of a fifteen-foot utility easement, mulching and landscaping only to the utility poles. When the tennis court was built in 1980, the fence was not intended to be the boundary as the Muellers believed their property extended a few feet beyond the fence. While there is no testimony of the Bartshes' predecessors in title or the predecessors' understanding of the location of the property line, the inaction and silence of the predecessors indicate acquiescence. Whether the fence was originally intended as a barrier or fence is irrelevant as the Muellers and Bartshes both assumed the property line to be just east of the tennis court fence.
The Bartshes also take issue with the district court's northerly extension of the Mueller's property. The Muellers' tennis court was built at an angle, with the northeastern corner extending onto the Bartshes' property 12.2 feet. The district court drew a north/south line extending from this most easterly point in the fence. While the Muellers and Bartshes shared an east/west property line extending north and south, the lots did not share the same north and south property lines. The Bartshes' northern property line is located approximately thirty-five feet north of the Muellers' northern property line. The Bartshes' southern property line is located approximately forty-five feet north of the Muellers' southern property line. In the district court's Findings of Facts it "define[d] the easterly lot line of the Mueller lot as 12.2 feet east of the survey lot line to the north and south lines of [the Muellers' property]." However, in the district court's decree it ordered the boundary to be "located 12.2 feet from the westerly lot line of [the Bartshes property]. This boundary shall run in a straight line north to the southern boundary of Lot 10 and south to the northern boundary of Lot 8." The district court defined two different property lines: one in its Findings of Fact and another in its Conclusions of Law. The Bartshes assert that even if a boundary was created by acquiescence, the district court erred by extending the Muellers' lot north of its original property line.
Lot 10 is located to the immediate north of the Bartshes' lost; Lot 8 is located to the immediate south of the Bartshes' lot.
We agree with the district court that the parties created a boundary by acquiescence; however, we disagree with the placement of such boundary. The Bartshes' petition alleges the tennis court encroaches on their land. The Muellers' cross-petition alleged,
"The boundary of Counter Plaintiffs' property has been established by the construction of said tennis court and the erection of said permanent fence in 1979, and said tennis court and fence have been continuously maintained through to the present date, with the recognition and acquiescence of Counter Defendants and their predecessor in title, for a period exceeding ten (10) years."
Neither party asserted in their petitions any land was in dispute other than that area of the tennis court and fence. The Bartshes filed a post-trial motion pursuant to Iowa Rule of Civil Procedure 1.904(2) asking the district court to correct its findings on this issue. The court denied the motion. On appeal, the Bartshes assert the district court erred by drawing a boundary line exceeding that sought in the pleadings. Although the Bartshes testified that the boundary line was a straight north/south line, we agree the pleadings did not describe any land beyond the fenced-in area of the tennis court. Therefore, the district court erred by granting relief beyond that sought in the pleadings and, in particular, the Muellers' cross petition. Skemp v. Olansky, 249 Iowa 1, 6, 85 N.W.2d 580, 583 (1957) ("The relief granted under the general prayer must be consistent with the case made by the pleadings and must be such as will not surprise the defendant."). The district court placed an arbitrary north/south line that we cannot uphold. We therefore, reverse solely on the placement of the acquiesced boundary and remand to fix the line as an irregular shape to follow the contour of the erected tennis court fence. The previous boundaries not compromised by the tennis court or fence remain intact.