Boyle v. DX Sunray Oil Company

• Decision Date: 15 February 1961
• Docket Number: Civ. No. 778.
• Citation: 191 F. Supp. 263
• Parties: Frances N. BOYLE, Plaintiff, v. D-X SUNRAY OIL COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Iowa

191 F. Supp. 263

Frances N. BOYLE, Plaintiff, v. D-X SUNRAY OIL COMPANY, Defendant.

Civ. No. 778.

United States District Court N. D. Iowa, E. D.

February 15, 1961.

Charles J. Pickett, of Birdsall, Pickett & McLendon), Waterloo, Iowa, for plaintiff.

J. Paul Greve, Tulsa, Okl., and Arthur A. Zimmerman, of Zimmerman & Zimmerman, Waterloo, Iowa, for defendant.

GRAVEN, District Judge.

The present action involves a dispute between the plaintiff and the defendant as to the proper location of a boundary line between two lots located in the City of Waterloo, Black Hawk County, Iowa. The action was originally commenced in the District Court of Iowa in and for Black Hawk County and was subsequently removed to this Court pursuant to the provisions of Section 1441 of Title 28, U.S.C.A. Jurisdiction in this Court is predicated upon diversity of citizenship. The plaintiff is a citizen of Iowa and resides in the City of Waterloo, Iowa. The defendant is a corporation organized and existing under the laws of the State of Delaware. At the time of the removal of the present action to this Court, the amount required to be in controversy for purposes of diversity of citizenship jurisdiction was more than $3,000, exclusive of interest and costs.

The plaintiff and the defendant own adjoining lots in the City of Waterloo. The defendant has caused a survey to be made by a licensed civil engineer and land surveyor in order to establish the true boundary between the two lots. The plaintiff objects to the location of the line which that survey showed as being the south boundary of plaintiff's lot and the north boundary of defendant's lot. It is the claim of the plaintiff that no matter where the true or surveyed boundary may be located, a particular line, clearly marked by a division fence, has been recognized as the boundary line between the lots in question and acquiesced in as such by the defendant's predecessors in title and by plaintiff and her predecessors in title for a period of more than ten years. Plaintiff urges that such a course of conduct is sufficient, under Iowa law, to establish the line which has been acquiesced in as the legally recognized boundary between the two lots. The line which was established by defendant's survey as the boundary between the two lots is approximately thirty-five feet north of the line which plaintiff claims has long been acquiesced in by the owners of the respective properties as the boundary between the lots. Plaintiff also claims that there has been open, notorious, continuous adverse possession of the disputed strip by her and her predecessors in title for several decades.

The defendant has apparently filled in with earth along the north edge of its lot and placed part of the fill north of the line to which the plaintiff is claiming as owner. Apparently the filling in by the defendant has caused some erosion on the plaintiff's lot. In her prayer for relief, the plaintiff asks that the Court establish that her south boundary lies along the line which she claims has been long acquiesced in as such and that the defendant be enjoined from placing earth north of this line and be required to remove any earth which it has heretofore placed north of that line. The defendant denies the claim of the plaintiff to the area in question and by cross-complaint asks that title to that area be quieted in it.

The plaintiff has lived on the lot which she presently owns since 1935. She acquired title to the lot in 1948 by a deed from her mother-in-law. Plaintiff's husband, John Boyle, has lived on that property continuously since 1919, except for two years during World War II. Plaintiff's lot has a dwelling house thereon, which was built in the fall of 1890. In addition, there have existed on plaintiff's lot a garage, barn, corn crib, shed, milk house, and at one time a brooder house for chickens. It is not clear how many of these outbuildings were still standing at the time this action was commenced but plaintiff and her husband were still residing in the dwelling house on her lot as recently as November, 1960.

The defendant acquired title to the lot which adjoins the plaintiff's lot on the south in 1954. Defendant has since constructed a gasoline service station thereon. Prior to the defendant's acquisition of this property, the lot had apparently never contained any building or other improvements of any description. The only use to which the property had been put before the defendant purchased it was as a garden plot.

Plaintiff's lot and defendant's lot both front on LaPorte Road. That street forms the west boundary of both lots. The two lots join so as to form a triangular-shaped tract of land lying in the "Y" formed by the intersection of LaPorte Road and the right-of-way of the Chicago, Rock Island & Pacific Railroad Company. This intersection forms the northerly corner of the plaintiff's triangular-shaped lot. At one time both lots were owned by one Henrietta Hitts. Mrs. Hitts sold plaintiff's lot in 1890 and defendant's lot in 1891 and since that time each lot has been owned by several different individuals. Plaintiff's deed describes her lot merely as the north one acre of the land (as described by section, township, and range) lying in this "Y." There is no metes and bounds description contained therein nor are any dimensions given as to the three sides of her lot. In the deed which Mrs. Hitts gave to one Sarah Garvey, a predecessor in title of the defendant, the tract currently owned by the defendant was described as commencing at the south line of the north one acre (plaintiff's lot) already sold off by Mrs. Hitts. That deed also listed the front footage of this south lot which bordered on LaPorte Road as approximately 197 feet and described the quantity of land conveyed as being one acre.

The results of the survey made by the licensed engineer and surveyor show the frontage of defendant's lot on LaPorte Road to be approximately 276 feet, or about 79 feet more than was called for in the original conveyance of that lot from Mrs. Hitts. That survey also shows that defendant's lot contains 1.514 acres instead of one acre. Such dimensions and quantities were obtained by first setting off plaintiff's lot as precisely the north one acre lying in the "Y" previously described. It appears that although the original grantor of the two lots thought she was splitting a two-acre parcel into two one-acre parcels and selling them separately, there was in fact approximately two and one-half acres in the original parcel. Such a miscalculation as to quantity is not surprising in view of the irregular shape of the parcel in question.

John Boyle, the plaintiff's husband, moved into the house on the lot now owned by the plaintiff in 1919. He was at that time twelve years of age and lived there with his mother, Effie Clements, and his stepfather, George Clements. George and Effie Clements owned that lot jointly from 1920 to 1925, and Effie Clements owned the lot from 1925 until she transferred it to the plaintiff in 1948. John Boyle testified that there was a fence marking the south boundary of the Clements property when they moved onto it in 1919. It consisted of wooden posts and four strands of barbed wire and was approximately five feet in height. It began at the crotch of a double walnut tree in the southwest corner of the lot and ran from there east to the railway right-of-way. He stated that the fence existed in that fashion until 1930 at which time it was taken down and a new fence was put up in the same place. The new fence consisted of poultry wire with barbed wire strands along the top. The barbed wire from the old fence was used for this purpose, the wooden posts were replaced with steel posts. This fence built in 1930 was never removed by the Clements or the Boyles. Mr. Boyle testified that the fence in question was pretty well shot the last four to six years prior to defendant's acquisition of the lot to the south of them in 1954. In the late forties he had tried to contain some ponies along the south line of the plaintiff's lot and the fence would not keep them in. By 1953 most of the posts were falling over and Mr. Boyle removed most of them. The barbed wire and poultry wire were left lying on the ground along the fence line and eventually became tramped and matted down by livestock. Mr. Boyle said the wire was still there at the time of the trial in November, 1960, although it was covered up by defendant's earth fill. The steel post which marked the eastern end of the fence and the south-east corner of plaintiff's lot was still visible in November, 1960, according to Mr. Boyle, but the double walnut tree which had marked the west end of the fence had been removed by the defendant.

The plaintiff testified that the poultry wire fence was standing when she moved onto the lot in question in 1935. It ran from the double walnut tree in the south-west corner to the railroad property. She said the fence was quite dilapidated from about 1945 on but it was standing until 1953 or 1954 when the posts were removed. A Mr. and Mrs. Wood both testified. They had lived with the Clements in 1932 and remembered that there was a fence along the south line of the property at this time. Neither one of them referred to the walnut tree. A Mr. Halley, who had lived in the neighborhood during the time of World War I before the Clements moved there, said he remembered that there was a wooden post and barbed wire fence from the highway (LaPorte Road) to the railroad right-of-way. Mr. Halley said that he had passed the property often through the years and thought that some sort of a fence had been maintained in the same place from that time up until about five years ago.

Mr. Boyle testified that extensive gardening had been carried on on the plaintiff's lot from the time the Clements and he moved there in 1919 up until 1954. During part of this time they operated a commercial vegetable stand on the premises. They...