Kennedy v. Oleson

• Decision Date: 09 February 1960
• Docket Number: No. 49899,49899
• Citation: 100 N.W.2d 894,251 Iowa 418
• Parties: Betty KENNEDY, Appellee, v. W.B. OLESON and William Oleson, Appellants.
• Court: Iowa Supreme Court

Page 894

100 N.W.2d 894

251 Iowa 418

Betty KENNEDY, Appellee, v. W.B. OLESON and William Oleson, Appellants.

No. 49899

Supreme Court of Iowa.

Feb. 9, 1960.

Westfall, Laird & Burington, Mason City, for appellants.

Mason & Stone, Mason City, for appellee.

THORNTON, Justice.

The parties are the owners of adjoining lots on the south shore of Clear Lake. Plaintiff Betty Kennedy is the owner in fee simple of the following described property in Cerro Gordo County.

"Lot Two (2) in Block Two (2) in Patriarch's Militant I.O.O.F. Park as laid out and platted on Lot 1 in Lot 1, Section 22, Township 96 North, Range 22 West of the 5th P.M."

Defendant William Oleson is the owner of Lot One (1) in said addition. Lot One lies west of Lot Two. The boundary line between them is in controversy here. Plaintiff acquired title to Lot Two from her mother in 1934 and has paid taxes thereon since. Defendant William Oleson acquired title to Lot One on June 28, 1958, from his father, W.B. Oleson, the other defendant. W.B. Oleson acquired title October 5, 1950 from the executor of the estate of Charles H. Schechter. Schechter had owned Lot One for a number of years and in the 1920's built a cottage and garage on Lot One. From the time it was erected until moved by defendants in the spring of 1957 a corner or side of the garage encroached about a foot on plaintiff's property according to what will be referred to herein as the Bogardus line. There is a cottage on plaintiff's lot built in 1918 or 1920 and used as a family cottage since that time. Both parties occupy their cottages only in the summer months. The Kennedys have not used their cottage overnight since 1946.

In 1951 defendants employed one Mahone, a civil engineer and surveyor, to make a survey of the line between the two lots. Mr. Mahone is now residing out of Iowa. He did not testify and field notes and plats made by him were not offered in evidence. Defendant William Oleson testifies Mr. Mahone placed two stakes, one visible in Exhibit D-1 near the middle of the lots from north to south, east of the addition built by defendants, and one shown in Exhibit D-2 near the north end of the lots not far from the high water line. He also testified he thinks Mr. Mahone placed one upon the road. This last stake would presumably be at the southeast corner of Lot One.

In the spring of 1957 defendants moved the garage to the rear or south part of their lot and commenced to build an addition to their cottage. The addition consists of two rooms and bath and cost about $2,500. Plaintiff claims this addition extends 2 feet 11 inches onto her lot. When plaintiff heard of the commencement of the work on this addition she had the boundary line between the lots surveyed by Mr. Bogardus, a professional engineer and surveyor. Mr. Bogardus was deceased at the time of the trial and his notes and plat were received in evidence over the objection of the defendants. The two surveys and other evidence will be discussed further in connection with the matters urged for reversal.

Defendants raise three propositions for reversal, first, that plaintiff failed to prove an encroachment by a preponderance of the evidence, second, acquiescence and adverse possession, and third, estoppel.

On the issues presented plaintiff has the burden of proving the encroachment by a preponderance of the evidence. Defendants have the burden of proving their affirmative defenses, and such proof should be clear. Trimpl v. Meyer, 246 Iowa 1245, 1248, 71 N.W.2d 437, 438. Our review of this equity action is de novo.

I. In their first proposition defendants urge Exhibits P-1, P-2 and P-3 were inadmissible and the opinions of two witnesses based thereon were inadmissible. Exhibit P-1 is in three parts, it consists of a drawing or plat of the two lots in question, Lots One and Two and also Three, Four and Five in Block Two, and Lots Five, Six and Seven in Block One, and two streets or drives. Dimensions, stakes found, and the location of one stake set are shown. At the top of the page is shown the words, "For Todd Kennedy. (Plaintiff's husband, who acted for her in all matters here.) Lot 2 Blk. 2 Patrarcks Militant I.O.O.F. Park." It is dated, "4/3/57." Below the plat are the following notes: "Found original G.P.stakes on E. side Lot 2 & E. end Lots 5 & 6 Blk. 1.-Found iron pin and checked at S.W. Cor. Lot 1, Blk. 2. Set G.P. at SW Cor. Lot 2." Below this is the following encircled by a penciled line: "Found iron pins set by Mahone on E. line Lot 1 which were set 40 due East of West line of Lot 1 which I consider in error."

Part two of Exhibit P-1 is a pencil drawing showing the boundary line between Lots One and Two, various measurements, the location of pins or stakes, one Mahone pin and its distance from the west line of Lot One, the addition to defendants' cottage and that it extended 2 feet 11 inches east of the boundary line.

Part three of Exhibit P-1 is a pencil drawing of Blocks One, Two, Three, Four, Five, and part of Ten in the subdivision. It also shows the waiver of notice and consent to the filing of the plat, the auditor's statement that the plat was filed under his direction and his acknowledgement taken by the clerk of the District Court. At the top of the page are words and figures as follows: "4116 Plat Aud. Cerro Gordo Co. to Public." and "Filed Oct. 18, 1915 Irene M. Bell Recorder."

Exhibit P-2 is a scale drawing made by the witness, Charles W. Newell, from the field notes of the deceased surveyor. Newell was a son-in-law and former employee of Bogardus. At the time of trial and for ten years previous he was employed as an engineering associate by the City of Mason City. This scale drawing is a composite of Exhibits P-1 and P-3 and conforms to Exhibit P-4, a photostatic copy of a plat of the subdivision from the Recorder's office.

Exhibit P-3 is a blueprint, identified as a plat of the east line of Lot One at the top of the page and shows such line and the addition to defendants' cottage extending over the line onto plaintiff's lot a distance of 2 feet 11 inches.

Defendants contend Exhibits P-1 and P-3 are inadmissible because they are hearsay, contain conclusions of the deceased surveyor and do not come within section 622.42, Code of Iowa, 1958, I.C.A. In their reply brief defendants contend section 622.27 is a general statute, section 622.42 deals exclusively with field notes and surveys and is applicable here and section 622.27 cannot be resorted to for matters in the special statute.

Plaintiff contends the Exhibits P-1 and P-3 are admissible under section 622.27 and as business entries made in the regular course of business, as an exception to the hearsay rule and as part of the res gestae. Section 622.27 provides:

"The entries and other writings of a person deceased, who was in a position to know the facts therein stated, made at or near the time of the transaction, are presumptive evidence of such facts, * * * when made in a professional capacity or in the ordinary course of professional conduct, * * * ."

We do not find that section 622.27 has been construed by us on the writings or entries of an engineer or surveyor. However, see discussion in Cummins v. Pennsylvania Fire Ins. Co., 153 Iowa 579, 585, 134 N.W. 79, 82 37 L.R.A., N.S., 1169, and as having some bearing, Allely v. Fickel, 243 Iowa 105, 108, 49 N.W.2d 544.

The testimony shows Ray Bogardus was a professional engineer and land surveyor. That he was deceased at the time of trial, he made the survey in the last part of March or first part of April, 1957, his notes are dated April 3, 1957, and are in his own handwriting, except Exhibit P-3, a blueprint. Both exhibits are shown to be a part of his permanent records as an engineer and surveyor. Clearly the writings come within section 622.27 and we hold they are admissible in evidence under such section. They are presumptive evidence subject to contradiction by any proper method.

Whether coming under a similar statute or as an exception to the hearsay rule, as business entries or as part of the res gestae such evidence has been held admissible. Warczynski v. Barnycz, 208 Md. 222, 117 A.2d 573, 576; Wightman v. Campbell, 217 N.Y. 479, 112 N.E. 184, 185; Jones on Evidence, 5th Ed., Vol. 2, section 272, page 526, section 290, page 552; Wigmore on Evidence, 3rd Ed., Vol. 5, sections 1521-1527, pages 366-375, and sections 1563-1570, pages 421-428; Ann.Cas. at page 874; Clark, Surveying & Boundaries, 2nd Ed., section 234, n. 9, page 247.

The contention that section 622.27 is a general statute and controlled by section 622.42, a special statute, is without merit. Both statutes have as their purpose the introduction of evidence which was otherwise inadmissible. Both sections have been a part of our law since the Code of 1851 and appear in the same words today. Section 622.42 provides:

"A copy of the field notes of any surveyor, or a plat made by him and certified under oath as correct, may be received as evidence to show the shape or dimensions of a tract of land, or any other fact the ascertainment of which requires the exercise of scientific skill or calculation only."

This section deals with a copy of the survey or plat certified under oath as correct and provides the same shall be received as evidence to show certain things. There is nothing about the section to indicate it is the exclusive way to admit field notes or a plat. It deals with a small facet of evidence that was inadmissible as secondary evidence prior to its passage. It certainly does not prevent the introduction in evidence of a survey or plat upon the oral testimony of the surveyor. Section 622.27 deals with a small facet of evidence providing for the introduction of entries and other writing of persons deceased, (a) against interest, (b) in a professional capacity, and (c) when enjoined by law, clearly providing an exception to the hearsay rule, and evidently passed in conjunction with out books of account st...