Brown v. McDaniel

• Decision Date: 06 February 1968
• Docket Number: No. 52833,52833
• Parties: Glen H. BROWN, Appellant, v. Lester L. McDANIEL, Appellee.
• Court: Iowa Supreme Court

Page 349

156 N.W.2d 349

261 Iowa 730

Glen H. BROWN, Appellant, v. Lester L. McDANIEL, Appellee.

No. 52833.

Supreme Court of Iowa.

Feb. 6, 1968.

John R. DeWitt, Griswold, for appellant.

Savery & Yarham, Atlantic, for appellee.

LARSON, Justice.

The plaintiff, Glen H. Brown, purchased Lots 7 and 8 in Block 3 in McDowell's First Addition to the City of Atlantic, Iowa, in 1949 and occupied the premises in 1952. The defendant, Lester L. McDaniel, purchased Lots 9 and 10 in Block 3 in that Addition on December 1, 1961, and it appeared he had rented these lots for several years prior thereto.

On June 24, 1966, plaintiff filed a petition under the provisions of chapter 650 of the 1966 Code alleging that a dispute exists between the parties as to the boundary line between Lots 8 and 9, that since August of 1961 plaintiff has been denied the use of six feet or more of his land by defendant's piling large quantities of various materials on plaintiff's Lot 8, and alleging that the true boundary as shown by a tree line was established by acquiescence. Injunctive relief and damages were asked.

In his answer defendant denied plaintiff's claims and alleged the true boundary line between these lots appears on a plat prepared by a registered land surveyor in October 1961 and the line marked by iron pins on the east and west line of Lots 8 and 9, Block 3, in McDowell's First Addition to the City of Atlantic, Iowa. He further alleged plaintiff had asked him to clean up Lot 9 and remove some trees and shrubs that had sprouted thereon and agreed to pay half the cost thereof. Plaintiff denied these affirmative allegations and trial was had.

It appears from Exhibit 1, a plat of Block 3, McDowell's First Addition to the City of Atlantic, Iowa, that the original lot line ran between points on the east and west line of Lots 8 and 9, 94 feet from 8th Street on the south. Lots 6 and 7 in this block were each 44 feet wide and the remaining 10 lots in the block were each 50 feet wide. Appellant contends the evidence supports his allegation that a new true line between Lots 8 and 9 had been established by acquiescence for a period in excess of ten consecutive years six feet north of the line shown on Exhibit 1, but the trial court failed to so find. The sole question presented by this appeal is whether there is competent substantial evidence to support its finding and decree. We hold there is.

I. Although in its findings the trial court said this was an action in equity, we note that it was brought under chapter 650 of the 1966 Code, which provides that such actions are special actions and on appeal are to be heard as ordinary actions. Sections 650.4 and 650.15, Code 1966. Also see Dart v. Thompson, Iowa, 154 N.W.2d 82; Pruhs v. Stanlake, 253 Iowa 642, 113 N.W.2d 300. It appears that this case was tried as a special proceeding and it comes to us on assigned errors as in a law action. Rule 344(a)(3), R.C.P.; Dart v. Thompson, supra; Allen v. Melson, Iowa, 150 N.W.2d 292.

The issue of acquiescence presents mostly fact questions, and the judgment in such a case has the effect of a jury verdict. Mahrenholz v. Alff, 253 Iowa 446, 451, 112 N.W.2d 847. Thus, the findings of fact by the trial court are binding upon us if supported by substantial evidence. Rule 344(f)(1), R.C.P.; Eggers v. Mitchem, 239 Iowa 1211, 1213, 34 N.W.2d 603; De Viney v. Hughes, 243 Iowa 1388, 1392, 55 N.W.2d 478; Cozad v. Strack, 254 Iowa 734, 736, 119 N.W.2d 266; Mahrenholz v. Alff, supra; Dart v. Thompson, supra; Allen v. Melson, supra; 38 Iowa L.Rev. 86, 110--115.

II. We are satisfied there is no merit in appellant's contention that his evidence conclusively shows a boundary line between Lots 8 and 9 was established by acquiescence. It is true in this jurisdiction that where two adjoining property owners acquiesce for ten or more consecutive years In a boundary line definitely marked by a fence, wall, or other markers, it then becomes the true boundary although a survey may show otherwise and neither party had intended to claim more than the property described in their respective deeds. Dart v. Thompson, supra, Iowa, 154 N.W.2d 82, 84; Mahrenholz v. Alff, supra, 253 Iowa 446, 450, 112 N.W.2d 847; Trimpl v. Meyer, 246 Iowa 1245, 1248, 71 N.W.2d 437; De Viney v. Hughes, supra, 243 Iowa 1388, 1392, 55 N.W.2d 478; Boyle v. D-X Sunray Oil Co., 191 F.Supp. 263 (D.C.1961). Also see Burby on Real Property, Hornbook Series, Third Ed., section 124.

Section 650.6 of the 1966 Code provides: 'Either the plaintiff or defendant may, by proper plea, put in issue the fact that certain alleged boundaries or corners are the true ones, or that such have been recognized and acquiesced in by the parties or their grantors for a period of ten consecutive years, * * *.'

It is well settled that the burden is upon the party claiming a boundary line different from that disclosed by the survey to establish the alleged acquiescence by clear proof. Rule 344(f)(6), R.C.P.; Dart v. Thompson, supra; Allen v. Melson, supra, Iowa, 150 N.W.2d 292; Mahrenholz v. Alff, supra; Kennedy v. Oleson, 251 Iowa 418, 100 N.W.2d 894; Cozad v. Strack, supra, 254 Iowa 734, 119 N.W.2d 266.

III. We shall refer to the acts and conduct of plaintiff and defendant, as well as defendant's predecessor in ownership, which might be evidence that they acquiesced in a fence line mutually recognized as a boundary between these properties, but in view of all the testimony we are not persuaded the trial court should be reversed.

After noting that all of these lots were 140 feet deep, and that under the survey Lot 7 was 44 feet wide and Lots 8, 9 and 10 were each 50 feet wide, the trial court observed that plaintiff contended the true boundary between Lots 8 and 9 was about six feet north of the survey line and had been for many years marked by a wire fence and a row of trees recognized as the boundary line by the former owners of these lots. However, after a review of the evidence submitted, it found there was not a sufficient showing that this line was ever Recognized as the true boundary line between those lots, nor was it mutually agreed thereto by the adjoining owners for a period of ten years before the defendant acquired the property in 1961. It noted that defendant's actions thereafter clearly establish that he recognized no such contention, but claimed the six-foot strip in controversy was his property. The trial court then concluded the evidence 'falls far short of establishing a boundary by acquiescence with the clarity and strength required,' and we must agree.

Not only is there substantial evidence to support the trial court's findings herein, but we are convinced the evidence would require the conclusion reached...