Eggers v. Mitchem

• Decision Date: 16 November 1948
• Docket Number: 47283.
• Citation: 34 N.W.2d 603,239 Iowa 1211
• Parties: EGGERS v. MITCHEM et al.
• Court: Iowa Supreme Court

34 N.W.2d 603

239 Iowa 1211

EGGERS v. MITCHEM et al.

No. 47283.

Supreme Court of Iowa

November 16, 1948

G F. Brooks, of Des Moines, for appellant.

Dickinson & Dickinson, of Des Moines, for appellees.

Wisdom & Wisdom, of Des Moines, for cross-defendant, Margaret F Wilson.

Holliday & Myers, of Des Moines, for cross-defendants, M. J. Dolan and Frances B. Dolan.

HAYS Justice.

This action is brought under Chap. 650, Code of 1946, asking for the establishment of a boundary by acquiescence, as provided for in Sec. 650.6, Code of 1946. The court dismissed plaintiff's petition and he appeals.

Appellant and appellee own adjoining farms. The true boundary between the same, as established by the government survey, is not in dispute, but is known to both parties. Some thirty odd years ago, the land in question was owned by Cornelius Mulane and Hebron Taylor. Appellant takes direct from Taylor, while appellee, through successive grantors, takes from Mulane.

Along the government survey line between the two tracts, a creek crisscrosses in such a manner as to, at one point, detach about two acres from the Mulane tract and attach same to the Taylor land. At another point, a two-acre tract is detached from the Taylor land and attached to Mulane's. Appellee owns the land from which the two acres are taken and attached to the Taylor land. The Mulane tract, to which is attached the two acres from the Taylor land, is now owned by James E Mulane, son of Cornelius Mulane. Appellant's land thus adjoins both the appellee's and the James E. Mulane tracts.

Sometime prior to 1917, Cornelius Mulane and Hebron Taylor, the then owners of the land in question, had a controversy over the division of the fence between their farms. At that time, by agreement between them, the fence was run along the creek bank, rather than straight through along the survey line, at the location of the two two-acre tracts above mentioned. By so doing, one water gap was eliminated. The fence was erected and has been more or less maintained since that time by the adjoining land owners. Appellant purchased his land in 1938. Appellee acquired his in 1945. In 1947, appellee built his fence on the government line, thus enclosing with his farm the two acres formerly attached to appellant's farm. It is to establish the boundary line along the creek, as formerly, that this action is brought.

Appellant assigns several alleged errors and contends that the case is here triable de novo. The questions presented by the assigned error are (1) that the record does not sustain the court's finding of facts, and (2) that the court was in error as to its interpretation of the law of acquiescence.

I. As to the method of trial in this court: That this appeal is not triable de novo and that the judgment of the trial court has the force and effect of a jury verdict, has been definitely established in this state. Sec. 650.15, Code of 1946; Concannon v. Blackman, 232 Iowa 722, 6 N.W.2d 116.

II. There is but little dispute in the record. The true boundary line is, and was, known and visible. The fence, claimed as a boundary is not on the true line. It was built some thirty years ago and has been maintained since, with each adjoining land owner using the land up to the fence. The fence was originally built by Cornelius Mulane and Hebron Taylor as the result of an agreement between them. Appellant took title from Taylor, one of the principals to the agreement, in 1938. Appellee took title in 1945, through successive grantors, from Mulane, the other principal. The fence, now erected by appellee, is along the known true line. The sole factual question concerns the terms of the agreement and the intention of the parties in making it.

The trial court found the agreement was made for the convenience of the parties in fencing along the creek and to avoid a water gap. That it was not made by either, with the intent of determining the boundary line between them. If there is substantial evidence in the record to bear out this factual determination, we are bound thereby.

James E. Mulane, owner of part of the original Mulane land and who was present when the original agreement was made, testified as follows:

'Q. Well you may state in substance what that conversation was with regard to affecting this particular two-acre piece of property? A. Mr. Taylor and my father wanted to get away from two watergaps which are in the southeast corner of my place at this time and instead of running the fence straight south as it should be on the line, they ran it down along the creek. That leaves just one watergap where otherwise there would be two watergaps. They made the exchange of approximately the land in question.'

The witness also testified:

'The Court. Do you claim title or ownership to these two acres you have? A. No sir. I don't see how I could, not paying the taxes on it.

'Q. The exchange then was merely for the maintenance of the fence; as far as you know? A. That's right. To do away with a water gap.

'Q. Not to change the title from one to another? A. Yes. That's right.'

J. A. Schooler was present when the original agreement was made. He was there as a trustee to determine the division of the fence between Mulane and Taylor. As a witness he testified:

'Q. You may state what that conversation was? A. Why, after they settled their fence differences they--Mr. Mulane at that time owned all that land west of where Mr. Mitchem's land is and where that creek came through there--they talked about the fence and Mr. Taylor asked him if he wouldn't trade land so they wouldn't have to fence the creek twice. He said he would like to; he had wanted to for several years, and they agreed then and exchanged land. Mr. Mulane took the land west of the ditch and he took the piece east of the ditch. (The last sentence was allowed to stand subject to a motion to strike as a conclusion, hearsay, and incompetent).

'Q. What you mean when you say that Mr. Mulane took one part of the land and Mr. Hebron Taylor took the...