Boltz v. Colsch

• Decision Date: 14 December 1906
• Parties: MARY BOLTZ, Appellant, v. NICHOLAS COLSCH, Appellee
• Court: Iowa Supreme Court

109 N.W. 1106

134 Iowa 480

MARY BOLTZ, Appellant, v. NICHOLAS COLSCH, Appellee

Supreme Court of Iowa, Des Moines

December 14, 1906

REHEARING DENIED, MONDAY, MAY 20, 1907.

Appeal from Allamakee District Court.-HON. L. E. FELLOWS, Judge.

THIS is a controversy over the boundary line between plaintiff's and defendant's lands. The trial court held with defendant, and plaintiff appeals.-Affirmed.

Affirmed.

J.P Conway, for appellant.

H.E.Taylor and W.S. Hart, for appellee.

OPINION

DEEMER, J.

The action was originally brought to settle the boundary line between lots 5 and 6 in section 28, township 100 N., range 4 W., in Allamakee county; plaintiff being the owner of lot 5, and defendant of lot 6. Thereafter plaintiff filed an amendment converting the action into one to quiet her title to a strip between the two lots which is in dispute. Plaintiff claims that a certain line between the two lots has been established by acquiescence and adverse possession, while defendant denies this, and says that the true line is marked by a fence recently erected by him. Lot 5 adjoins lot 6 on the north, and the property in dispute is a tract running east and west between the two lots, sixty-seven links wide at one end and ninety at the other. The testimony satisfactorily shows that the true line is where defendant now claims it to be and where he built a fence in the year 1902. But plaintiff insists that another line south of that has been established by acquiescence and adverse possession, and that no matter where the true line is she is entitle to have the one she claims established and her title down to that quieted, by reason of the facts to which we shall presently refer; relying upon the doctrine announced in Miller v. Mills County, 111 Iowa 654, 82 N.W. 1038, and other like cases.

I. Before going to the merits we shall settle a matter of practice. After a jury had been impaneled, plaintiff filed the amendment to her petition asking that title be quieted in her. In view of the allegations and prayer of the original petition, it is doubtful if the action was triable to a jury; but however this may be, an action to quiet title is purely of equitable cognizance. Recognizing this rule, defendant, after the filing of the amendment, moved to transfer the case to the equity calendar for trial to the court. This motion was sustained, and in this there was no error. See Code, section 4227.

II. In the year 1866 plaintiff's father, Nicholas Temple purchased from one Weymiller the two lots 5 and 6, and at that time there was a rail fence along or near the line which plaintiff now claims is the true one. This fence is called a "pasture fence," and was used as such both by Temple and Weymiller. Some time after Temple's purchase, he sold lot 6 to one Jacob Prinz, his stepson, and in 1873 he sold lot 5 to the plaintiff. Jacob Prinz used and lot 5 to the plaintiff. Jacob Prinz used and occupied lot 6 down to the year 1893 when he sold it with other land to the defendant Colsch. It is claimed that this rail fence was repaired from time to time, increased in height, and was finally, in the year 1875, replaced by a wire fence attached to certain trees and posts upon practically the same line as the old rail fence. Both lots border upon the Iowa river, and both are subject to overflow. Because of this, the fence to which we have already referred was frequently washed away, and in the year 1902, when defendant constructed the fence upon the line where he now claims it to be, the wire fence was nearly all gone. After the floods which washed away the fences occurred, the fence was not always replaced upon the same line. The wires were attached to convenient trees, and the fence was never a straight one, and since defendant's purchase he has generally repaired the fence after its destruction by floods. There is no showing that either Temple or his grantor ever maintained the rail fence as marking the boundary line between lots 5 and 6. After the sales by Temple it may be that his grantees, or some of them, thought the fence was upon the true line, but it appears from the testimony that defendant's grantor Prinz did not regard the old fence as being upon the true line, nor did defendant after his purchase. Plaintiff herself, for the purpose of finding the line after her purchase in order that she might grub down to it, had a party stake it out, and these stakes were set near where the line is as now marked by defendant's fence. She (plaintiff) thereupon grubbed down to the line marked by these stakes,...