Hadsall v. West

• Decision Date: 14 December 1954
• Docket Number: No. 48605,48605
• Citation: 67 N.W.2d 516,246 Iowa 606
• Parties: L. C. HADSALL, Appellee, v. Anna WEST, Clarence Yoakum and Elma Yoakum, Appellants. Helen E. Sherratt, Administratrix of the estate of Anna West, deceased, Helen E. Sherratt and Charles F. West, heirs at law of Anna West, deceased, Substituted Appellants.
• Court: Iowa Supreme Court

Page 516

67 N.W.2d 516

246 Iowa 606

L. C. HADSALL, Appellee, v. Anna WEST, Clarence Yoakum and Elma Yoakum, Appellants Helen E. Sherratt, Administratrix of the estate of Anna West, deceased Helen E. Sherratt and Charles F. West, heirs at law of Anna West, deceased, Substituted Appellants.

No. 48605.

Supreme Court of Iowa.

Dec. 14, 1954.

Rehearing Denied Feb. 11, 1955.

Siegers & Bedell, Newton, Arnold H. Myhra, Colfax, for appellants.

Cross & Hamill, Newton, for appellee.

BLISS, Justice.

Plaintiff has owned and occupied the Northwest Quarter of Section 11, Township 79, North, Range 21, in Jasper County, Iowa, since 1936. Anna West had an interest in the west half of the Northeast Quarter of said section in 1886 as an heir of her father, Peter Cragen, who bought it in 1872, and by devise and conveyances she became the sole owner in 1936, and so continued until her death during the pendency of this appeal. She died intestate, and her three children, the substituted appellants, inherited said land. The defendants, Clarence and Elma Yoakum, husband and wife, took possession of this land of Anna West, as her tenants, in the spring of 1950, and so occupied it thereafter. Although the record shows them to have no other interest, they have been very aggressive and active participants in the controversy.

The pleadings, in addition to the petition, answer and reply, include cross and counter pleadings and their answers, necessarily quite repetitious, cover thirty-one pages of a 225-page printed record, and it is difficult to make a concise statement of them. Able opposing counsel disagree somewhat on the nature of the issues.

The farms of the parties are about a mile west of the city of Colfax, and abut paved Highway No. 6 on its south side. Plaintiff was a tenant on his present farm during the year 1930. It was then owned by the children of Joanna and George Evans. The parents had acquired the farm April 12, 1892 by deed from James Callanan. Joanna Evans, by decree of divorce and quit-claim deed, became the sole owner of the farm in 1902, and lived on it until her death in January, 1921. Her children then inherited this quarter section and another quarter section just west of it. Later, in a partition suit, the said Northwest Quarter of section 11 was sold to plaintiff, and he received a referee's deed to it dated November 7, 1936. During 1937 he operated the farm by hired help, and in October of that year, he and his family took actual possession of the farm and have operated it since.

The farm buildings on the place were in the north part on what was known as Indian Hill, because of arrow heads and Indian relics found there. In the south or back end of the farm there was a house whose occupants were not engaged in farming, but were otherwise employed. The main farm buildings were in the same location at the time of the trial as they had always been, except that in 1945 or 1946 a new residence was built about five rods north of where the house had formerly been. There was at all times a driveway leading directly north from the farm buildings to the public road, now designated as Highway No. 6. This driveway is about 600 feet west of the north end of the boundary line involved in this suit.

The buildings on the eighty acres of Anna West, and those claiming under her, have been and are about eighty rods south of the northwest corner of the tract and quite close to the west line. This west line, as surveyed by the Government, coincides, of course, with the east boundary line of plaintiff's land, and is the line about which this litigation centers.

When plaintiff bought his farm the inside fences, and particularly the division fence between his land and that of Mrs. West, were bad, and in 1938 he asked her to join him in having a survey made. She refused. Plaintiff then employed B. H. Shivers, 69 years old, of Des Moines, a licensed civil engineer of thirty-five years experience, to locate on the ground, the Government survey line between the two properties. This he did in October of that year. He found all of the Government survey corners of the section. Both sides agree that there is no question as to the correct location of these corners. Mr. Shivers found the north quarter corner of the section marked by a lead plug in the center of the highway on the north side of the section. By the north quarter corner is meant the point at the center of the north line of the section east and west. That would be the northwest corner of Mrs. West's land and the northeast corner of plaintiff's land. Mr. Shivers found the center of the section and marked it with a flat metal bar, the dimensions of which were 7 1/4"' X 3/8"' X 4'. He sank this in the ground at the center point of the section with the top somewhat below the surface of the ground. A lien drawn between the north quarter corner directly south to the center point of the section is the true Government survey line making the boundary line between the land of the parties. Mr Shivers as a witness for plaintiff, testified: 'I made observations or notations in regard to the location of the north and south division fence between the two farms. The corner post at the south end was two feet west of the center of the section and the forty going north would be 80 rods north, about 7 or 8 feet west. That was the way the fence was located in 1938.'

Plaintiff testified: 'When I had Mr. Shivers make a survey in 1938 I asked Mrs. West to go with me and make it and she refused. After I had made that survey I asked Mrs. West a time or two for us to try and get those fences straightened up, that I didn't think I should be furnishing the land there for that road, although I was using it too, somewhat, as I continued to use it to go to my field when I needed to. If I wanted to move down the pavement, I went down that road and came in there and went up in the back field. I got through that fence at the gate at about the 40 rod line.'

As noted herein, counsel viewed the issues in differing lights. Counsel for appellee thus expressed it in their Brief and Argument on page 3 thereof:

'The Nature of the Action: Though Appellants' Statement of the Nature of the Action is literally correct, it is so composed as to give an inaccurate perspective of the case. It depicts the controversy as principally a line fence dispute governed by the judicial rules of acquiescence and adverse possession, whereas the original and principal issue between the parties was the question of the right of appellants to an easement for a private roadway over Appellee's land, governed by the legislative requirements of Section 564.1 of the Iowa Code [I.C.A.].'

Appellants in their Reply Brief and Argument challenge this contention of appellee, and close with this sentence, 'Appellants believe that an examination of the pleadings as they appear in the record will disclose that the nature of this action and the issues raised by the pleadings are as stated in their Brief and Argument.'

We agree with appellants' position, although there is potential, or rather, apparent, basis for appellee's view. It is true that appellants claim the roadway, but they do not contend they have an easement for a roadway. An easement in land, as this court has held in many decisions, 'is a liberty, privilege or advantage in land without profit, existing distinct from the ownership of the soil, * * *.' (Italics ours.) See Cook v. Chicago, B. & Q. R. Co., 40 Iowa 451, 456, and cases cited in Webb v. Arterburn, Iowa, 67 N.W.2d 504.

It is true appellants are claiming the roadway, which, for approximately 850 feet, is on appellee's land, according to the Government survey, but they claim its ownership and absolute title by acquiescence and adverse possession, and not an easement in it. The word, easement, is not to be found in their pleadings nor their Brief and Argument.

We will now discuss this roadway, or land, or 'trail', as some witnesses speak of it. The record clearly establishes that for many years, both before and since plaintiff became the owner of the NW 1/4 of section 11, there had been a lane along the east line of this quarter section extending from the highway on the north to the south or back area of this quarter. It is established without serious question that this lane has been fenced on both sides. William J. O'Neill was a witness for plaintiff. He testified: 'If I live I will be 96 years old March 24th.' (The trial was from the second to and including the fourth day of November 1953). He said that he came to the Colfax vicinity on December 21, 1881, and was there until 1905, and was then away for about thirty years, and came back in 1928 for a few days visit, and then came back to Colfax and Des Moines in 1932. For some years before the trial he had lived in Colfax. Before 1905 he had farmed for seventeen years a mile south from the Hadsall (plaintiff) place. He remembered when Callanan lived on the place and had the buildings on the hillside. He testified: 'There was a trial went up from the highway on the west side of the fence to the south end of this Hadsall place. Then it turned west to the buildings. The fence I speak of was a fence between what is now the Hadsall place and the farm east of it. (The Anna West farm). That trail was fenced in. You had to open a wire gate to get out.' The clear import of this testimony is that the fence on the east side of the 'trail' was the line or division fence between the Hadsall farm and the West farm, and the west fence of the lane was on the Hadsall land. He was asked if the Callanan people traveled on the west side of the fence in going back to the buildings. His answer was, 'That was just a private drive from the road, from the highway, up to where the buildings were. * * * The owners on both sides farmed right up to the road. Left the trial. (That is, they didn't cultivate it.) The trial went within a couple of rods of the south end of the division fence and...