Alcorn v. Linke
| Decision Date | 09 February 1965 |
| Docket Number | No. 51546,51546 |
| Citation | 257 Iowa 630,133 N.W.2d 89 |
| Parties | H. A. ALCORN, Appellant, v. William LINKE and Dale D. Linke, Appellees, William Linke and Virginia Janet Linke, Executors of the Estate of Dale D. Linke, Deceased, Substituted Appellees. |
| Court | Iowa Supreme Court |
J. R. McManus, Des Moines, and J. R. Larson, Atlantic, for appellant.
Jones, Cambridge & Carl and Richard Howard, Atlantic, for appellees.
This is an equity action by plaintiff, H. A. Alcorn, seeking an injunction and damages alleging trespasses, nuisances and encroachments upon his land in Adair by defendants William Linke and Dale D. Linke. Defendants' cross-petition asks for damages and that title to certain land be quieted in them. From the trial court's decree denying plaintiff relief and quieting title in defendants to land not described in their deed, plaintiff has appealed. We do not agree with the decree entered. Dale D. Linke is now deceased and proper parties have been substituted. For clarity we will continue to refer to him as a defendant.
Many of the facts out of which this litigation grows are not in dispute. Prior to November, 1948, Anna Foss, a widow, owned the following described real estate, located in the town of Adair:
The South 314 feet of the West 35 rods of the SW 1/4 of the SW 1/4 of Section 34, Township 78 North, Range 33, West of the 5th P.M.
In the fall of 1948, defendants and one William Baxter, as officers of Adair Motors, a corporation, were looking for property in Adair on which to erect a large garage and start an automobile business. They employed John A. Driscoll, Adair realtor of many years experience, who contacted Mrs. Foss regarding sale of part of her property. Measurements were made by Driscoll in the presence of William Linke, Mrs. Foss and her son Roy, following which Driscoll prepared a contract and later a deed which Mrs. Foss executed on November 15, 1948 before Driscoll as notary public.
That deed to Adair Motors conveys the following described premises:
Commencing at the Southwest corner of the SW 1/4 of the SW 1/4 of Section 34, Township 78 North, Range 33 West of the 5th P.M., running thence north 110 feet, thence east 75 feet, thence south 55 feet, thence east 75 feet, thence south 55 feet, thence west 150 feet to the place of beginning.
Almost immediately thereafter Adair Motors started construction of a 40 X 100 foot garage building. It is referred to as the Butler building and was completed in the spring of 1949 after which Adair Motors moved in and started doing business.
Mrs. Foss's home was on the property not sold to Adair Motors. During the building construction, although quite frail, she was up and about her home property. She and her son Roy were aware of the building construction and the location thereof. They expressed no objections to its location.
Adair Motors operated the automobile business in this building until June, 1951 when it was taken over by Mike F. Roof who thereafter and to the trial of this case operated the business as an individual under the trade name Roof Chevrolet Company. Many cars and buses were parked to the north and also east of the building during the operation of the business. A septic tank and an oil tank east of the building near the north and thereof were installed and used by the garage operators. A drainage pipe from the east side of the building near the south and was also in use for many years.
Adair Motors, by its president Wm. Linke and Dale Linke secretary, on April 30, 1955 conveyed to William Linke and Dale D. Linke by warranty deed the garage property. The description used in this deed, which was recorded June 23, 1955, is the identical description in the deed from Mrs. Foss to Adair Motors.
Mrs. Foss died August 2, 1950. Under her will her real estate passed to her children Henry and Norene Foss. Later M. S. Noland was apppointed guardian of their property.
Following certain probate proceedings a public auction was held at which plaintiff purchased the real property offered by the guardian. By probate deed dated October 26, 1956, the guardian, pursuant to court order, conveyed to plaintiff the property described in the probate deed as follows:
The South 314 feet of the West 35 rods of the SW 1/4 of the SW 1/4 of Section 34, Township 78 North, Range 33, West of the 5th P.M., in Guthrie County, Iowa, except a tract described as follows: Commencing at the SW corner of said SW 1/4 of the SW 1/4 running thence North 110 feet, thence East 75 feet, thence South 55 feet, thence East 75 feet, thence South 55 feet, and thence West 150 feet to the place of beginning.
Plaintiff had lived and practiced his profession as a veterinarian in Adair for over 50 years. He was familiar with the property involved here and its use before and after the construction of the garage building. He was not familiar with the boundary lines of the property purchased by him until after he received the deed and his abstract. He then concluded cars and buses were being parked north and also east of the north half of the garage and that the building and tanks encroached on his land.
Plaintiff testified he then protested to defendant, William Linke, about the parked vehicles and the encroachments and that although Linke promised to have them removed, nothing was done except the oil was emptied from the tank and a new one installed near the southeast corner of the building. Later parking on part of his land ceased.
At the request of Dale Linke, Frank G. Mallette, a professional engineer and land surveyor, on September 30, 1957 made a survey of the property here involved. The following plat (Exhibit 31), drawn to scale, reflects most of his testimony and the results of his survey based on the description in the deed from Mrs. Foss to Adair Motors and its deed to defendants.
This plat also shows the Butler building is not built exactly parallel with the section lines or the lines described in the two deeds. The northeast corner of the building is 1.7 feet east of the line described in the deeds and gradually becomes less along the east side of the building. The overhang of the roof extends about a foot beyond the building itself.
Highway 6 (now 90) shown on the plat is 66 feet wide. The paved slab in the center thereof is 18 feet wide. As shown in the lower left of the plat a lead plug in the center of the pavement designates the SW corner Sec. 34-78-33. This Mallette used as his base point in making his survey. Along the south side of the property is an alley.
Plaintiff's petition, filed November 28, 1959 alleges ownership of plaintiff's land adjoining that of defendants; the garage, septic tank, oil tank and drain pipe encroach on part of his property; oil and refuse were being discharged on his premises; offensive odors arose from a cesspool and drain pipe; rubbish and trash were being burned on his premises and oil in barrels east of the garage overflowed when it rained, resulting in an overflow of oil upon his land. He asked that defendants be enjoined from continuing to encroach, trespass and commit nuisances upon his property and for $3500 damages.
Defendant's answer, filed July 12, 1960 admits plaintiff owns property adjacent to theirs and alleges a garage building of a permanent type was constructed, a septic tank, toilet vents, oil tank, and connecting pipes were installed and used but that no trespasses or encroachments had resulted because defendant's real estate should be measured from the east side of the right of way on the west and from the north side of the road bordering their tract on the south and not from the southwest corner of the SW 1/4 of the SW 1/4 of Section 34-78-33. They also allege the boundary line between their property and that owned by plaintiff had been established by mutual consent, recognition and acquiescences of the owners for more than 10 years and that the garage building was constructed with the knowledge and consent of the adjoining land owner on land which defendants believed to be theirs, and alleges estoppel.
Their cross-petition repeats the allegations of their answer and asks that title be quieted in them to a tract described in the deeds but starting at the point as claimed in their answer.
October 19, 1962 defendants amended their answer and cross-petition by alleging their predecessor in title in 1948 became the equitable owner of a tract described as:
Beginning at a point on the north line of the East-West alley or street along the south line of the SW 1/4 of the SW 1/4 of Section 34-78-33, approximately 35 feet east of the Southwest corner of said Section 34-78-33, being the point where the North-South fence existing in 1948 on the East side of the roadway bordering the SW 1/4 of the SW 1/4 of Section 34-78-33 on the west (said fence line being a northerly extension of the fence line bordering the west side of the school grounds in the Town of Adair, Iowa) intersected the north line of said East-West alley or street; thence North 110 feet, thence East 75 feet, thence South 55 feet, thence East approximately 115 feet to the fence bordering this tract on the East, thence South 55 feet, thence West to the point of beginning.
Defendants allege their predecessor acquired the above described property from Mrs. Foss since during the negotiation for the sale and purchase of said property it was pointed out and represented to their predecessor the measurements and dimensions were as set out in the above description and that through a mutual mistake the property conveyed to their predecessor was as described in the deed of November 15, 1948.
They allege plaintiff had interfered with use of the property, asked damages and that title to the parcel as described in their amendment to cross-petition be quieted in them.
Plaintiff's reply and answer to cross-petition as amended deny all new...
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