Concannon v. Blackman

• Decision Date: 17 November 1942
• Docket Number: 46130.
• Citation: 6 N.W.2d 116,232 Iowa 722
• Parties: CONCANNON v. BLACKMAN et al.
• Court: Iowa Supreme Court

6 N.W.2d 116

232 Iowa 722

CONCANNON v. BLACKMAN et al.

No. 46130.

Supreme Court of Iowa

November 17, 1942

Appeal from District Court, Lee County; J. R. Leary, Judge.

Hollingsworth & Hollingsworth, of Keokuk, for appellants.

G L. Norman, of Keokuk, for appellee.

GARFIELD Justice.

Lots 1, 2 and 3, Block 122, in the city of Keokuk face to the north on Exchange street which runs east and west. (We disregard the fact that the streets and lots in question are not true to the compass.) Each lot is 50 feet in width east and west by about 140 feet in depth north and south. Since 1920 defendants have owned and most of the time occupied as their home the front or north 65 feet of Lots 1 and 2 and the east half of Lot 3, being 125 feet along the south side of Exchange street. The east side of Lot 1 of defendants' property (65 feet) abuts upon Eighth street which runs north and south at right angles to Exchange street.

Since 1908 plaintiff has owned and since 1909 has occupied for a home a strip 35 feet in width, north and south, by 125 feet in depth, east and west, adjoining defendants on the south and facing east on Eighth street. Plaintiff's house encroaches from one to five inches on defendants' ground north of the boundary line determined by survey from the established monument at the intersection of Eighth and Exchange streets. It is plaintiff's claim and the trial court held that a boundary line had been established by acquiescence 3 feet, 3 inches north of what we may call the survey line. The principal contention by defendants-appellants upon this appeal is that the evidence is insufficient to support the judgment.

I. Although there is some dispute as to the form of action and the manner of trial, we are satisfied the action was brought under Ch. 521, Code 1939; that the judgment has the effect of a jury verdict; that the case is not triable here de novo, and the judgment must be affirmed if there is substantial evidence to support it. Code, section 12307; Santee v. Uhlenhopp, 184 Iowa 1131, 1133, 169 N.W. 321; Morrow v. Hall, 169 Iowa 534, 536, 151 N.W. 482; Schoen v. Harris, 162 Iowa 321, 323, 143 N.W. 1108; Leathers v. Oberlander, 139 Iowa 179, 181, 117 N.W. 30.

II. Appellants contend this action was not properly brought under Ch. 521 because the true boundary, according to the description in the deed of each party and the survey from established monuments, is not uncertain or in dispute. We are unable to agree. The issue of a boundary by acquiescence may be raised, tried, and adjudicated in this special action, even though there may be no dispute as to the boundary according to the deeds or the survey. Code, section 12298; Kraft v. Tennigkeit, 204 Iowa 15, 18, 214 N.W. 562; McGovern v. Heery, 159 Iowa 507, 514, 141 N.W. 435. See, also, Klay v. Kurvink, Iowa, 134 N.W. 633.

III. It is well settled in this state that where two adjoining owners for ten years mutually acquiesce in a line, definitely marked by a fence or in some other manner, as the dividing line between them, such line becomes the true boundary, although a survey may show otherwise and neither party intended to claim more than called for by his deed. Sieck v. Anderson, 231 Iowa 490, 497, 1 N.W.2d 647, 650, and citations; Thompson v. Schappert, 229 Iowa 360, 363, 294 N.W. 580. Of course the line must be mutually acquiesced in as the boundary line by both parties, and not merely by one owner. Patrick v. Cheney, 226 Iowa 853, 856, 285 N.W. 184; Benjamin v. O'Rourke, 197 Iowa 1338, 1341, 199 N.W. 488; Dwight v. Des Moines, 174 Iowa 178, 183, 156 N.W. 336.

IV. We think there is substantial evidence to support the judgment establishing the boundary line by acquiescence. We will mention some of it. The property now owned by plaintiff-appellee was acquired in 1894 by one Moore. At that time there was a board and picket fence on the line which the court fixed. The front part of the fence extending east of the house toward Eighth street was torn down and never rebuilt, but the back fence remained. The lot was graded to the line of the fence. "There was a sort of terrace there and it is still there." The difference in grade at the line was and is plainly discernible. The Moores had the terrace sodded to the line of the fence and always kept it mowed.

On January 6, 1908, Moore sold to appellee. About 1913 or 1914, it was suggested that appellee and Mr. French, appellants' grantor who then owned appellants' property, replace part of the board fence with one made of wire. These adjoining owners then put up 35 to 40 feet of wire fence on the line of the old fence, some of which was left standing. After this rebuilding there was a fence from a jog in the north side of appellee's house to the rear of his ground. Appellee and French did the work themselves and shared the expense. The inference is warranted that French and appellee recognized the fence line as the boundary. Several witnesses testified that this fence stood there until 1923 or 1924 when it was torn down, three or four years after appellants purchased their property. Appellee kept a garden back of his house and cultivated practically up to the fence. He put his ashes in the rear close to the fence.

About 1913 French and appellee agreed to put in a cement sidewalk along the east of their properties. French built his part of the walk first and extended it to the line of the fence. Then appellee built his part. The dividing line of the sidewalk was plainly apparent. Appellee always shoveled snow off the walk to the line even with the fence.

Two areaways extend out about 18 inches from a cellar window on the north side of appellee's house. Appellee used the strip in controversy for painting his house, washing windows, putting on storm windows and putting in coal. Appellants made no objection to any of these uses until some friction was engendered shortly before this suit was brought.

A significant fact in support of the judgment is that about 1922 appellants caused a summer kitchen to be moved to the south and made into a garage. They located this building about 40 feet west of the sidewalk along Eighth street, with its south side about eight inches north of the fence line. Appellants then built a cement drive leading from the garage to Eighth street. The south side of the drive was placed about four inches north of the fence line. Appellee told appellant Blackman at the time he was building the drive that he could locate it a few inches closer to appellee's house if he cared to, but Blackman didn't do it.

In 1938 appellants built a new garage near the southwest corner of their property with its south side about 2 1/2 feet south of "the fence line" or within about 9 inches of the survey line. Before building this new garage, Blackman approached appellee and wanted to buy about 3 feet from the line of the old fence south, saying that he intended to build. Appellee said he would think it over but nothing further was done about appellants' buying added ground. While this new garage was being built partially on the strip here in dispute appellee sent his son over to object to its location. The son was an attorney. "Blackman refused to listen and said he wasn't over the line or something like that and went on with his work."

Mr. Blackman caused a survey to be made in 1930 which revealed the location of the boundary as surveyed with reference to the monument at the intersection of Eighth and Exchange streets. However, he said nothing to appellee regarding the survey nor, the court could find, did he make any definite assertion of title to the strip in dispute at least until he built his new garage about two years before this suit was started.

We have not undertaken to summarize all the evidence. There is a sharp dispute on some of these matters. For instance, appellants and some of their witnesses denied the fence was standing when they purchased their property in 1920. This is not controlling since the line was marked by the change in grade, the appearance of the sidewalk and otherwise, to give notice that it was the line between the adjoining properties. Mullahey v. Serra, 220 Iowa 1177, 1180, 264 N.W. 63, 64, Sieck v. Anderson, 231 Iowa 490, 496, 1 N.W.2d 647, 650. But since the case is not triable de novo it is not our province to solve disputed fact questions nor pass on the credibility of the witnesses. We may observe that the trial court at the request of both sides "viewed the premises" as an aid to understanding the testimony.

We think there is substantial evidence that both appellants and their predecessors in title, each for the statutory period acquiesced in the line established by the court, as the dividing line. It is urged that the court did not find that appellants had acquiesced in this line but only that their predecessors did. The findings of fact made by the trial court are no part of the judgment proper. If the judgment is...