Kendall v. Lowther

• Citation: 356 N.W.2d 181
• Decision Date: 19 September 1984
• Docket Number: No. 83-290,83-290
• Parties: Daniel Earl KENDALL and Nancy Kay Kendall, Appellees, v. Clement C. LOWTHER and Irene Lowther, Appellants, and Larry E. Unash and Joan L. Unash, Appellees.
• Court: United States State Supreme Court of Iowa

Page 181

356 N.W.2d 181

Daniel Earl KENDALL and Nancy Kay Kendall, Appellees, v. Clement C. LOWTHER and Irene Lowther, Appellants and Larry E. Unash and Joan L. Unash, Appellees.

No. 83-290.

Supreme Court of Iowa.

Sept. 19, 1984.

Henry E. Nathanson, Cedar Rapids, for appellants.

Dennis J. McMenimen and Richard G. Hileman, Jr. of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, for appellees Daniel Earl Kendall and Nancy Kay Kendall.

John M. Heckel of Holden, Steggall & Heckel, Cedar Rapids, for appellees Larry E. Unash and Joan L. Unash.

Considered by REYNOLDSON, C.J., and McCORMICK, SCHULTZ, CARTER and WOLLE, JJ.

WOLLE, Justice.

This quiet title action concerns a land survey gone awry. Although the parties to this appeal vigorously dispute most of the facts and all of the legal theories which other parties have advanced, they agree that a land survey obtained by defendants Clement and Irene Lowther from surveyor Florus Brummer was seriously inaccurate and did not correspond to the legal descriptions by which Lowthers conveyed two parcels of adjoining real estate. To resolve the boundary dispute that resulted, the families who purchased those parcels retained counsel, bought their own surveys, and ultimately became embattled in this quiet title litigation. Both neighbors, the Kendalls and Unashes, made claim in the action to a triangular plot of land between their rural homes, and they also made claim for damages against the surveyors who made the errors and the Lowthers as grantors. The trial court's decree established a boundary line between the properties, quieted title in accordance with that decreed boundary, and found the surveyor Brummer and the Lowthers liable for damages to both neighbors. Only the Lowthers have appealed. Although we modify in one respect the damage award to Kendalls, we otherwise affirm the decree as modified, concluding that in all other respects the trial court fairly and equitably decided each of the issues raised by Lowthers in their appeal.

I. Background Facts.

The trial court correctly tried this quiet title action as an equitable proceeding. See Moser v. Thorp Sales Corp., 312 N.W.2d 881, 886 (Iowa 1981); Helms v. Helten, 290 N.W.2d 876, 879 (Iowa 1980). Our review of the decree is de novo on all issues. Id. We give weight to the factfindings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App. P. 14(f)(7).

The following rough sketch illustrates, in simplified form, the scene of this boundary dispute.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1973 Clement Lowther, a licensed real estate salesman, and his wife Irene Lowther bought 36 acres of rural property south of Cedar Rapids in Linn County, and they moved into a farmhouse on the property. Lowthers then hired Florus Brummer, a licensed surveyor, to survey the entire 36 acres.

In 1975 the Lowthers decided to build a new home to the west of their farmhouse. They hired Brummer to measure out a lot and provide an appropriate legal description for the property. This property is referred to as the Kendall property because it is now owned by plaintiffs Daniel Earl Kendall and Nancy Kay Kendall (Kendalls). The Lowthers built a new home on this property, then sold it in 1976 to Richard and Linda Nischwitz [Nischwitzes], who thereafter sold it to Kendalls. The description of the property which Lowthers used in the deed of conveyance was a metes and bounds description obtained from Brummer, and the same description was subsequently used when Nischwitzes in 1978 deeded the property to Kendalls. That description was:

That part of the East 110 feet of the West 753.5 feet of the South 940 feet of the Southwest Quarter of Section 6-82-6, Linn County, Iowa, lying Northerly of the public road.

Brummer testified, and the trial court found, that when he provided that description to the Lowthers he told them that the survey was not made as accurately as it could be, since it was only a location survey, and that it should not be relied upon for purposes of conveying title. Lowthers denied being cautioned by Brummer about the survey, but the trial court in its decree noted:

Although defendant Lowther disputes this, the court finds Mr. Brummer's testimony to be credible on this matter.

We find that Brummer told Lowthers that a description sufficient for a deed would be more expensive and would entail much more work than the location survey he had performed for them. Brummer's testimony on this matter is corroborated by his charge of only $40 for the location survey and $20 for the legal description even though, according to the evidence, a survey adequate for transferring title would have cost much more. Subsequent title problems and substantial litigation expenses for all parties can be traced directly to Lowthers' penny-wise and pound-foolish attempt to obtain a cut-rate survey and legal description.

The parties to this appeal do not disagree about the mistakes Brummer made in performing survey work for Lowthers. First, Brummer placed the northwest corner marker for the Kendall property too far to the west, so that it intruded approximately 40 to 45 feet onto the real estate owned by the Janeys whose farm lay along the west boundary of the Kendall property. Secondly, he actually measured on the ground a distance of only 100 feet between the northwest and northeast corners of the Kendall property even though he wrote down on the legal description that the distance was 110 feet. Because of these two mistakes in the Brummer location survey, the parties received the mistaken impression that the Kendall property was located about 40 to 45 feet further west at the north boundary of the property than would accord with the legal description. Subsequently the parties found that when the Kendall west and east property lines were moved east to accord with the legal description used by Lowthers in their deed of conveyance, the Kendall property overlapped and included part of the farmhouse which was located on the property retained by the Lowthers.

When Nischwitzes purchased from Lowthers the property which they later conveyed to Kendalls, Mr. Lowther and Mr. Nischwitz walked the boundaries of the property and Mr. Lowther pointed out the location of pins at the four corners of the parcel as Brummer had surveyed it. Because of Brummer's mistake, however, the pin marking the northwest corner was well to the west of the Janey property line. Mr. Nischwitz thereafter placed a fence and wooden post along a portion of his property's east boundary, running in a roughly north and south direction approximately five feet west of the Lowther farm house. Both Lowthers and Nischwitzes believed that the fence was approximately on the Nischwitzes' (later Kendalls') east boundary.

In 1976 Lowthers hired Brummer to survey and stake boundaries surrounding their farmhouse so they could obtain a home improvement loan. Brummer used the stakes he had placed on the east boundary of the Kendall property as the west boundary for the Lowther farmhouse property, and he set pins in all four corners.

In 1978 Nischwitzes sold their property to Kendalls. Thereafter Mr. Kendall found two or three of the corner pins previously set by Brummer, but the northwest corner pin was never located.

Later in 1978 the Lowthers sold their improved farmhouse and staked property to Larry and Joan Unash (hereinafter Unashes). In the process Lowthers proceeded to subdivide the remainder of the land they had purchased in 1973, and they hired licensed surveyor Archie Conklin to survey and create a plat known as Meadowood First Addition, with lot one being the Unash property. Conklin's employees located the three existing pins at the corners of the Kendall property but could not locate a pin at the northwest corner. Conklin undertook to reestablish the monumented survey previously performed by Brummer, then used the east boundary of the Kendall lot as a west boundary for the plat of the Unash property.

While Conklin was performing surveying work on the Unash lot, Kendalls became alarmed about the width of their property and hired Brummer to resurvey its boundaries. It was while performing this work that Brummer discovered the two mistakes he had made in his original location survey performed for Lowthers. Because of these errors, Brummer undertook a new survey, this time following the legal description in the Lowthers' deeds. The effect of this new survey was to rotate the west and east boundaries of the Kendall property in a mostly easterly direction, around the southwest corner of the Kendall property as an axis, so that the Kendall's west boundary would line up with the east boundary line of the Janey tract. As a result, the east boundary of the Kendall property was moved so far to the east that it overlapped about 10 feet of the Unash farmhouse and created the disputed (overlapping) area between the Kendall and Unash properties.

Kendalls, Unashes and Lowthers first attempted to reach a compromise settlement of the boundary problem, but without success. Thereafter Kendalls brought this action in equity against Unashes to quiet title to the disputed area between their two properties (see rough sketch). Kendalls and Unashes also made claim against Lowthers and the surveyors for money damages, including attorney fees and other costs of litigation. Kendalls and Unashes alleged that the surveyors had been negligent and that Lowthers had been negligent and breached covenants of title in their deeds.

After a several-day trial, the trial court found that although Kendalls had the superior legal title to the disputed property, Unashes had a compelling equitable interest in that portion of the property which overlapped what had been monumented as Unash's property, including the house which was overlapped by about 10 feet. The trial court therefore resolved the boundary dispute by quieting title...