Kruse v. Vail

• Decision Date: 16 December 1947
• Docket Number: 47124.
• Citation: 30 N.W.2d 159,238 Iowa 1277
• Parties: KRUSE v. VAIL et al.
• Court: Iowa Supreme Court

30 N.W.2d 159

238 Iowa 1277

KRUSE v. VAIL et al.

No. 47124.

Supreme Court of Iowa

December 16, 1947

Smith & Swink, of Montezuma, for appellant.

Bray Carson & McCoy, of Oskaloosa, for appellees.

HALE Justice.

Plaintiff Frank W. Kruse, is the owner of 160 acres of land and Hugh L Dye is the owner of 80 acres adjoining the north half of plaintiff's land on the west. The fence in controversy is that running north and south on the west line of plaintiff's land and the east line of Dye's land. Defendants are the township trustees of Pleasant Grove township.

Apparently some dispute had arisen between the two adjoining landowners as to the portions of the line fence to be maintained by each. At any rate, plaintiff Kruse visited attorneys in Montezuma who wrote Dye under date of July 27, 1946. This letter addressed to Dye, and Dye's reply thereto through his attorney being matters of controversy, are set out at length:

'Dear Mr. Dye:

'Frank Kruse and his son have consulted us regarding the maintenance of the partition fence between your farm and the Kruse farm. From our information it appears that there has been an agreement between the owners of the Kruse farm and the owners of your farm, made years ago, whereby the South half of said fence should be and was erected and maintained by the owners of the Kruse farm, and whereby the North half of said fence should be and was erected and maintained by the owners of your farm. That being the situation there is nothing that either you or they can do about it unless you voluntarily get together and mutually make a new agreement. Neither of you could change ends of the fence without the consent of the other. That does not mean, however, that a new agreement cannot be made. Cooperation is always desirable between neighbors.

'Yours very truly,

'Smith & Swink

(Signed) 'L. J. Swink.'

Under date of July 29, 1946, the reply follows:

'Gentlemen:

'Your letter of July 27th to Mr. Hugh L. Dye has been referred to me. Therein you refer to an agreement pertaining to a division of the partition fence. I write to inquire whether this agreement was in writing, and if so, whether the same was recorded in the office of the Recorder of Mahaska County. Of course, any agreement that may have been entered into must have been in writing and recorded to be enforcible. If there is such a written agreement recorded, of course Mr Dye will abide thereby. If there is no such recorded written agreement, then he will expect to maintain the south end of the fence.

'Thanking you for this information, I remain

'Yours very truly,

(Signed) 'Thomas J. Bray.' On August 2, 1946, Hugh L. Dye filed a written request to the trustees asking them to determine all the controversies relating to the fence, to notify Kruse, and asking for a determination of the portions of the partition fence on the boundary line between the two tracts. On the same day notice was given to Kruse by the township clerk alleging plaintiff's request and notifying him of the time fixed for a meeting of the trustees. The trustees, acting as fence viewers, met pursuant to the notice and rendered a decision dividing the fence on the boundary line by giving to Dye the north 81 rods, 9 feet, and to Kruse the south 81 rods, 9 feet of the boundary line; the decision being signed August 13th by the trustees.

At this meeting Kruse was present and filed with the trustees a statement signed by his attorneys in which he, in substance, told them that he did not appear in response to any notice but appeared as an onlooker only, and objected to any action that the trustees might take under their notice respecting the fence. Objecting further that there was no jurisdiction, and alleging that no written request had been made by Dye; that no controversy existed between said adjoining landowners as contemplated in Chapter 113 of the 1946 Code, and further alleging that an oral agreement existed since prior to 1920 in regard to the portions of the fence to be maintained by the adjoining owners.

Thereafter, on September 15, 1946, Frank W. Kruse, plaintiff, filed his petition for writ of certiorari reciting the actions of the trustees, alleging that they were illegal and without jurisdiction, and, in substance, alleged what was contained in his objections filed with the trustees. Writ was issued as prayed and return made, and answer filed. A motion to strike by plaintiff was overruled and the cause came on for trial.

There was introduced in the trial what is called statement and acknowledgment respecting shares of the partition fence and the maintenance thereof. This was dated August 5, 1946, and it will be noticed that the date is after the exchange of letters between the attorneys of the parties in July, and filed in the recorder's office the day before the trustees met, on August 12, 1946. It consists of a statement by Taylor, one of the former owners of the property, and Kruse, and alleges that it is executed for the purpose of reciting the terms of an oral agreement made prior to 1920 and sets out what the alleged agreement consisted of. This was properly objected to on various grounds, but the record does not disclose the ruling except in the court's finding and decision.

On November 18th the court rendered its findings and decision, holding that the trustees had jurisdiction of said action and the cause was dismissed. Apparently the only question presented in this appeal is: Did the township trustees have jurisdiction to determine the rights of the parties in any particular? Plaintiff insists that another question is: Could the trustees modify a verbal agreement regarding the fence agreement between former adjoining landowners?

I. Kruse, plaintiff and appellant, assigns 26 alleged errors which he relies upon for reversal. Of course it is not practicable to attempt to review all of these claimed errors, nor is it necessary to do so. The first group of errors relates to certain rulings on evidence. We find no error on overruling of plaintiff's objections to the admission of testimony. There is no serious disagreement about the facts and we consider it unnecessary to review all these assignments.

II. One question raised, in the sixth assignment of error, relates to the letters from the attorneys and representatives of the parties to the dispute about the fence which plaintiff insists should have been stricken because purely evidentiary in nature. These letters constituted what defendants claim was the notice to the plaintiff of a controversy, and it is argued by the plaintiff, under a later assignment, that these letters fall short of constituting a written request by one landowner to an adjoining landowner to erect a fence. We think they were properly attached to the defendants' answer and properly admitted in evidence. They are not merely evidentiary in character but are really the basis of part of defendants' claim.

III. The principal claim of plaintiff is that there was no written request made by the defendant Dye of Kruse. It is true, as alleged by plaintiff Kruse, that there must be a request. Section 113.1, Code 1946, relating to the duties of the trustees as fence viewers provides: 'The respective owners of adjoining tracts of land shall upon written request of either owner be compelled to erect and maintain partition fences, or contribute thereto, and keep the same in good repair throughout the year.'

Section 113.3 provides: 'The fence viewers shall have power to determine any controversy arising under this chapter, upon giving five days notice in writing to the opposite party or parties, prescribing the time and place of meeting to hear and determine the matter named in said notice. Upon request of any landowner,...