Garrett v. United States, 18758

• Decision Date: 12 February 1969
• Docket Number: 18799.,No. 18758,18758
• Parties: Julian GARRETT, Loyat Bland Garrett, Neill Garrett and Pearl Garrett, Appellants, v. UNITED STATES of America, Appellee. Julian GARRETT and Loyat Bland Garrett, Appellants, v. UNITED STATES of America, and Jake Klein, d/b/a Klein Coal Company, Delwin S. DeHaan, Helen Vanden Oever, Henrietta Vanden Oever and Edward Henry Vanden, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

407 F.2d 146 (1969)

Julian GARRETT, Loyat Bland Garrett, Neill Garrett and Pearl Garrett, Appellants, v. UNITED STATES of America, Appellee.

Julian GARRETT and Loyat Bland Garrett, Appellants, v. UNITED STATES of America, and Jake Klein, d/b/a Klein Coal Company, Delwin S. DeHaan, Helen Vanden Oever, Henrietta Vanden Oever and Edward Henry Vanden, Appellees.

Nos. 18758, 18799.

United States Court of Appeals Eighth Circuit.

February 12, 1969.

Bert A. Bandstra, Knoxville, Iowa, for appellants, Neill Garrett, Des Moines, Iowa, and Julian Garrett, Carthage, Mo., were on the briefs.

Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., for appellees, Clyde O. Martz, Asst. Atty. Gen., John G. Gill, Jr., Atty., Dept. of Justice, James P. Rielly, U. S. Atty., Claude H. Freeman, Asst. U. S. Atty., Des Moines, Iowa, were on the brief.

Before VAN OOSTERHOUT, Chief Judge; GIBSON and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

These are consolidated appeals by landowners from final judgments entered in the United States District Court for the Southern District of Iowa in two condemnation cases instituted by the United States to acquire land in Marion County, Iowa, for the Red Rock Reservoir project.

Valuation issues were resolved by condemnation commissioners appointed pursuant to Federal Rule of Civil Procedure 71A(h). Landowners Julian Garrett and wife and Neill Garrett and wife in Appeal 18,758 (hereinafter "Garretts") and landowners Julian Garrett and wife in Appeal 18,799 (hereinafter "Julian Garrett") appeal from respective applicable judgments entered November 15, 1966, and December 23, 1966, by the district court on the respective commissioners' findings. The appellant-landowners raise common questions of valuation and contend that the trial court erroneously deducted the value of certain gravel leases, as determined by the commissioners and approved by the court, from the landowners' award. No question is raised on the right of the landowners to raise these valuation questions before this Court.

The appeals also raise three other issues which had been determined by the district court at an earlier date, more than sixty days prior to either of the dates on which the instant appeals were taken; two of such issues in Appeal 18,758 concern land identified as tract 866, and a third issue, in Appeal 18,799, concerns disputed ownership of tract 358.

TRACT 866 (APPEAL 18,758)

We first consider the two early orders of the district court relating to this tract.

Following the filing of the Declaration of Taking of this and other property on February 14, 1962, the Garretts remained in possession, although title had vested in the United States under such filing and the depositing of estimated just compensation with the Registry of the Court. After title had passed, and during the Garretts' possession, certain timber was cut and removed from tract 866. The United States moved for a hearing declaring that there had been waste on the premises. Following a full hearing, the Garretts were enjoined from further disposing of timber and other products and additionally, the court awarded damages in favor of the United States in the sum of $1,182.74. A judgment in conformity with the court's findings was entered in early 1963, almost four years before the instant appeal.

A boundary dispute developed in the same taking. The district court required the Garretts and the adverse claimants to part of the tract, one John J. Slykhuise and his spouse (hereinafter "Slykhuise"), to submit respective statements of their claims to the disputed property. After an evidentiary hearing, the court in an unreported opinion quieted title to the disputed area in Slykhuise and against the Garretts. Thereafter, the United States and Slykhuise agreed on the amount to be paid for the portion of the tract 866 which had been subject to the dispute. A judgment and order for distribution to Slykhuise of that agreed amount out of deposited funds was entered December 22, 1964. Other matters concerning the remaining land in the tract were determined in the final judgment dated November 15, 1966. In this appeal from the 1966 judgment, Garretts ask us to review both the earlier money judgment for waste to the premises and the earlier order and judgment resolving the boundary dispute with Slykhuise on the basis that such judgments were interlocutory and may be reviewed on an appeal from the final judgment.

Except as specially provided in Rule 71A, the Federal Rules of Civil Procedure apply in condemnation actions.¹ In this case, we first assume, but do not decide, that we have jurisdiction to consider the merits of those early rulings of the trial court pursuant to Rule 54(b), Fed.R. Civ.P.² With that assumption, we examine the merits.

In the government's action to collect for the waste, the district court's contention that Garrett,³ who was temporarily in possession of the tract, had committed waste is essentially a factual determination. This determination is clearly supported by the evidence.⁴

On the merits of the boundary dispute between Slykhuise and Garretts, John J. Slykhuise, age 77, claimed that he had purchased part of tract 866 in 1919 and had farmed the area north and west of a watercourse called Wildcat Creek. Garrett, on the other hand, claimed title to that land north and west of Wildcat Creek through a mortgage foreclosure decree in 1942. Slykhuise testified: "The Garretts never came across Wildcat Creek from the south or southeast and farmed any ground on my side of the creek. That's been true since 1919 * * *" The trial court determined that Wildcat Creek constituted the boundary line and that the disputed tract of land lying north and west of Wildcat Creek belonged to the Slykhuises and not to the Garretts. Such determination was made on the basis of an acquiescence to the boundary line pursuant to Iowa law. See generally, Iowa Code Ann. § 650.14; Cozad v. Strack, 254 Iowa 734, 119 N.W. 2d 266 (1963); Boyle v. D-X Sunray Oil Co., 191 F.Supp. 263 (N.D.Iowa 1961); Trimpl v. Meyer, 246 Iowa 1245, 71 N.W. 2d 437 (1955); De Viney v. Hughes, 243 Iowa 1388, 55 N.W.2d 478 (1952). The language of Griffith v. Murphy, 166 Iowa 380, 147 N.W. 855 (1914), also involving a creek as a boundary line acquiesced in by the parties, and the principles enunciated therein fully support the court's determination:

"* * * this court is fully committed to the doctrine that occupancy up to a marked division line, without questioning its correctness, for the statutory period of limitation, is such acquiescence therein as to defeat subsequent controversy as to its true location." 147 N.W. at 857.

The Garretts claim that there was no evidence of acquiescence by them to Wildcat Creek as a boundary line. Weighing evidence and the inferences therefrom, as well as evaluation of the credibility of the witnesses, is properly the province of the trial court. The trial court found that evidence of acquiescence was "clear". The issue is essentially factual in nature and the district court's determination will not be reversed by this Court on appeal, unless it is clearly erroneous. Fed.R.Civ.P. 52(a); Centex Constr. Co. v. James, 374 F.2d 921 (8th Cir. 1967); General American Life Ins. Co. v. Yarbrough, 360 F.2d 562 (8th Cir. 1966).

The Garretts also suggest that a foreclosure decree entered in their favor in 1942 cut off any prior claim of Slykhuise to the disputed property. No contention is made that the mortgage foreclosure action attempted to resolve any question of disputed title. Thus, the foreclosure action, even though naming Slykhuise as a party defendant, cannot serve as a bar to the Slykhuise claim of title. The general rule is that the rights of the claimant under a title adverse to that of the mortgagor and the mortgagee are not precluded by a foreclosure, unless such rights were actually adjudicated. Rheinberger v. Security Life Ins. Co., 146 F.2d 680 (7th Cir. 1944); cf. Kellogg v. Illinois Cent. R. R., 204 Iowa 368, 213 N.W. 253 (1927), reh. denied, 204 Iowa 368, 215 N.W. 258 (1927); Smith v. Redmond, 134 Iowa 70, 108 N.W. 461 (1906). We have examined the authorities cited by the appellants in support of their position and find them inapposite.

Appellants further contend that the Slykhuise possession was that of a tenant and, thus, could not become adverse to them. Such testimony was in dispute and the issue was for the trial court to resolve. Further, such assertion would not affect acquiescence of the Garretts' predecessors in interest between 1919, the date Slykhuise went into posession, and 1942, the date the Garretts obtained color of title to the disputed area. Acquiescence by prior owners affects the title of successors in interest. See, Kennedy v. Oleson, 251 Iowa 418, 100 N.W.2d 894 (1960); Mullahey v. Serra, 220 Iowa 1177, 264 N.W. 63 (1935).

TRACT 358 (APPEAL 18,799)

With respect to tract 358, Julian Garrett claims an interest in about twelve acres of timberland against a group of adverse owners collectively referred to as "DeHaan". The district court determined the issue against Julian Garrett in an opinion reported at 240 F. Supp. 692. No Rule 54(b) determination was entered by the district court. On this appeal, as in the other, we first assume that we have jurisdiction and examine the merits of the controversy.

Judge Stephenson, in finding against Julian Garrett pointed out: "It is clear that the DeHaans have the superior record title to the tract in question". United States v. 1,087.42 Acres of Land, 240 F.Supp. 692, 693 (S.D.Iowa 1965). In this appeal, Julian Garrett does not quarrel with such finding relating to superior record title, but contending that he had possession of the disputed tract openly and notoriously for the requisite statutory period under Iowa Law, maintains that the court erred in determining the issues of adverse possession unfavorably to him. We find that, on the record before us, the determination...