Opinion
No. 5-765 / 05-0170
Filed January 19, 2006
Appeal from the Iowa District Court for Linn County, David M. Remley, Judge.
Ronald Zubrod appeals from adverse rulings of the district court. AFFIRMED.
Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.
Jeffrey R. Tronvold and Lew Eells of Eells Tronvold, P.L.C., Cedar Rapids, for appellees.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Ronald Zubrod appeals from adverse rulings of the district court. We affirm.
I. Background Facts and Proceedings.
In March of 1868, Thomas Oliphant and his wife, Almira, deeded approximately one acre to the trustees of what would become the Oliphant Cemetery located in Linn County. In 1953, Vern Oliphant acquired title to certain land surrounding the one acre cemetery, lying north and west of what is referred to as the Ellis property. Vern's deed specifically excluded both the cemetery property and the Ellis property.
The property in dispute actually consists of two parcels, one of which lies to the north and west of the original cemetery and the other which lies to the south and east of the cemetery, which this opinion will refer to as the "northwest parcel" and the "southeast parcel" respectively. Together with the cemetery, these two parcels are bounded to the east by the Ellis property, to the south and west by State Highway 150, and to the north by a barbed wire barrier fence that runs north of the Ellis property until it intersects Highway 150. It is undisputed that the cemetery expanded beyond its original one-acre boundaries, and several decedents have been buried in the northwest parcel. Hence the thrust of the dispute giving rise to this appeal involves the southeast parcel.
Zubrod's brief on appeal concedes that he would not be entitled to exercise complete dominion over any land on which graves have been located.
The minutes of a July 25, 1981 meeting of the Oliphant Cemetery Association (Association), of which Vern Oliphant was president and trustee, state that "Vern Oliphant had donated more land to the cemetery." The minutes also reflect that the Association would employ Anderson Consultants to survey and divide this additional land into individual burial plots, a mission which was completed in 1982. Although the minutes of another Association meeting note that a motion calling for Vern to deed the northwest and southeast parcels to the Association passed, no such deed was executed or filed of record.
The northwest and southeast parcels were included in the 1982 cemetery plat. The minutes of subsequent Association meetings attended by Vern Oliphant evidence that the Association (1) used several plots in the northwest parcel for burial (2) discussed creating a park in the southeast parcel until such time as the parcel was needed for burial purposes, and (3) took action to mow and otherwise maintain the southeast parcel. The record shows that Vern lived with his wife directly across Highway 150 from the cemetery and would have been able to observe and object to any activity carried out by the Association on either the northwest or southeast parcels.
As of the time of trial, no graves were located on the southeast parcel. We find no evidence tending to prove Vern and Bertha Oliphant undertook any maintenance of the disputed parcels after the 1981 survey was completed. Indeed, all maintenance of these parcels following the survey was undertaken either by the Association or the Washington Township trustees.
Vern Oliphant died in 1997, leaving title to the disputed parcels to his wife, Bertha Oliphant. Bertha subsequently granted power of attorney to her daughter, Jane Davis, who solicited offers from neighboring land owners to purchase land including the northwest and southeast parcels. On behalf of Bertha, Jane accepted Ronald Zubrod's offer which was understood to exclude the Ellis property and the land dedicated for cemetery purposes. The deed executed, however, did not specifically exclude the cemetery land.
Following his purchase, Ronald Zubrod immediately began to use the southeast parcel as hay ground, and in 2001, planted alfalfa. When he noticed a man mowing the parcel, Zubrod confronted him and the man left. In 2003, the Association contacted Zubrod offering to purchase part of the southeast parcel. After repeated contacts, the parties were unable to reach an agreement, and in 2004, the Association filed its petition with the district court to establish the barbed wire fence as the northern boundary of the cemetery lands so as to include both the northwest and southeast parcels among the property dedicated for cemetery purposes.
The petition alleged that although the deed of transfer to Zubrod did not exclude the northwest and southeast parcels inside the fence, Zubrod's predecessors in title and the Association had together acquiesced in the barbed wire fence as the boundary line between the cemetery land and the land owned by Vern Oliphant. The petition further asserted the barbed wire fence served as the boundary of the cemetery lands when the Association's survey was undertaken in 1981 and that said acquiescence was continuous until the sale of the disputed parcels to Zubrod in 2000.
At trial, Jane Davis, who admitted she was unfamiliar with the use of the disputed parcels since she left her parents' home in the 1970s, stated her belief that the southeast parcel on which Zubrod had planted alfalfa was beyond the boundary of the cemetery. Zubrod maintained that while the fence had been in existence for well over twenty years, it was viewed by his predecessors in title as a barrier fence and not a boundary fence, and thus his predecessors in title did not acquiesce in the fence serving as the boundary of the cemetery property.
The district court rejected Zubrod's claim. In its written ruling, the district court found that although the barbed wire fence was originally erected as a barrier fence designed to keep Vern Oliphant's livestock off the cemetery lands, the fence became the boundary between the parties' lands by acquiescence after being treated as such by the parties for more than ten years.
Zubrod now appeals, alleging the district court erred in concluding that substantial evidence supports a finding that his predecessor in title acquiesced to the fence serving as the boundary between the cemetery and the lands he acquired by deed.
II. Scope and Standard of Review.
An action under Iowa Code chapter 650 to establish a boundary is considered on appeal as an ordinary action. Iowa Code §§ 650.4, 650.15 (2003); Egli v. Troy, 602 N.W.2d 329, 332 (Iowa 1999). "We apply the clear evidence standard in reviewing this case." Egli, 602 N.W.2d at 332. The district court's judgment has the effect of a jury verdict, and our inquiry is limited to whether its findings are supported by substantial evidence. Id.; Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997).
III. Discussion.
Iowa Code section 650.14 states:
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.
Our courts have long defined acquiescence and explained its effect on the property line boundary as follows:
It is 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.
Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980). Acquiescence is also described as "consent inferred from silence — a tacit encouragement [involving] notice or knowledge of the claim of the other party." Patrick v. Cheney, 226 Iowa 853, 856, 285 N.W. 184, 186 (1939).
However, if it can be shown that both parties did not mutually recognize the fence line as a boundary, but instead considered the fence as a barrier fence designed to contain livestock, then Iowa Code chapter 650 has no application. See Brown v. McDaniel, 261 Iowa 730, 735, 156 N.W.2d 349, 352 (1968).
(stating "[a]cquiescence in the existence of a fence as a barrier, not as a boundary, is not such recognition as will establish it as the true line.") There is evidence in the record suggesting that Zubrod's predecessor in title, Vern Oliphant, used the fields east of the barbed wire fence to graze livestock until the early 1970's, suggesting that up to that time the Association and Vern treated the fence bounding the southeast parcel to the north and east as a barrier fence, not as a boundary fence.
It is also clear from the record that Vern and the Association viewed the fence differently after the July 25, 1981 meeting of the Association, of which Vern was then president and trustee. As was noted above, the minutes of that meeting suggest that by this date Vern had donated "more land" to the Association for cemetery purposes. Vern, as an officer and trustee of the Association, also participated in obtaining the 1981 survey which divided both the northwest and southeast parcels into burial plots and included those parcels within the plat of the cemetery.
The record also reveals that Vern was present at Association meetings where the maintenance of the disputed parcels was discussed, and no objection or other assertion of ownership over the parcels was lodged by Zubrod's predecessor in title. Not only did Vern Oliphant fail to object to the Association's dominion over the disputed parcel at any meeting subsequent to the 1981 survey, but Vern was clearly aware that the Association was assuming control of the land by virtue of the fact that his residence was located directly across the highway from the cemetery throughout the ten-year statutory period. Vern's silence in the face of the Association's open and notorious exercise of dominion over the disputed parcels speaks volumes against Zubrod's barrier fence characterization. Patrick, 226 Iowa at 856, 285 N.W. at 186.
Based on the foregoing, we conclude substantial evidence supports the district court's finding that Zubrod's predecessor in title and the Association mutually recognized and acquiesced in the barbed wire fence serving as the boundary between their property for the ten-year period prescribed in Iowa Code section 650.14. Egli, 602 N.W.2d at 332. The ruling of the district court establishing the barbed wire fence as the north and east boundaries of the Oliphant Cemetery is hereby affirmed.