Leeka v. Chambers

• Decision Date: 15 December 1942
• Docket Number: 46052.
• Citation: 6 N.W.2d 837,232 Iowa 1043
• Parties: LEEKA et al. v. CHAMBERS.
• Court: Iowa Supreme Court

6 N.W.2d 837

232 Iowa 1043

LEEKA et al. v. CHAMBERS.

No. 46052.

Supreme Court of Iowa

December 15, 1942

Nichols & Nichols, of Sidney, for appellant.

Genung & Genung, of Glenwood, for appellees.

WENNERSTRUM Chief Justice.

The litigation that has occasioned this appeal involves the location of a division fence line between the land of the plaintiffs and that of the defendant. Plaintiffs brought an action in equity to enjoin the defendant from interfering with the fence which they had built on a line claimed to have been established between the land owned by the plaintiffs and that of the defendant. Plaintiffs also asked for damages for the destruction by the defendant of fences which the plaintiffs had at different times built. By cross-petition the defendant asked that the title to the land he claimed be quieted. The trial court granted the injunction asked for by the plaintiffs and dismissed defendant's cross-petition. The defendant has appealed.

The petition of the plaintiffs alleges that a division line fence eighty rods long between the respective tracts of the parties had been maintained for a number of years; that in the month of June 1940 the defendant removed the fence then existing and threw portions of it upon the land of the plaintiffs; that the plaintiffs thereafter rebuilt the line fence and the defendant again removed it; that the plaintiffs again rebuilt the fence on the line claimed by them and that it was again removed by the defendant. The plaintiffs' action to enjoin the defendant from interfering with plaintiffs' line fence was then brought. The defendant filed a general denial and thereafter filed a cross-petition in which he asked the court to find and determine the true line between lands of plaintiffs and defendant. He also asked that a decree be entered quieting the title to the land alleged to belong to the defendant.

The line fence in controversy is between the NW1/4 of the SE1/4 of Section 17, owned by the plaintiffs, and the SW1/4 of the SE1/4 of Section 17, owned by the defendant. These respective properties are all in Township 70, Range 43 in Fremont County, Iowa. The land of the plaintiffs is north of the land of the defendant and the line of fence which is in controversy is an east and west partition fence between the two forty acres.

The defendant, Charles Chambers, bought his land in 1907 from his father. At the time of defendant's purchase, the tract of land adjoining on the north, which is now owned by the plaintiffs, was owned by defendant's uncle who had acquired it about the year 1876. It is defendant's contention and there is some testimony to substantiate his claim that some 40 or 45 years ago a small drainage ditch was dug along the north side of the land now owned by the defendant. It is further contended that a fence was built on the south side of the ditch across the full length of the forty acres in order to turn stock. It is defendant's claim that the fence was not on the quarter section line and he asserts ownership to the land beyond where the ditch was located. This ditch has filled up and there is only slight evidence to indicate its original use.

Defendant, in his efforts to ascertain the true line, employed a civil engineer to survey the land. The engineer testified that he ran a line, which it is asserted is the correct line. He stated that the fence is south of the true line of these two forties. In connection with this survey the engineer stated that he could not find any government monuments of any kind in the neighborhood from which to begin; that he made his survey in accordance with some other fences and stated that if some of these fences were off the line his survey would be incorrect; and that if the center of the highway where he started was not true to governmental division lines then his line would not be correct. He further stated that the point from which he started was from information given him by persons who claimed to know where the corners were.

It will thus be observed that the testimony of the civil engineer is of little value in ascertaining as to where the governmental division line is. If the contention of the plaintiffs is not sustained in this case, it is apparent that it will be difficult to ascertain just where the true line should be because of the indefiniteness of the civil engineer's findings.

The facts in the case of Sieck v. Anderson, 231 Iowa 490, 1 N.W.2d 647 are very similar to the facts in the present case. In the Sieck case the trial court found that the division line had been marked by a line fence for more than ten years and that by reason of adverse possession and acquiescence now constituted the true boundary line between the properties in question. This court sustained the trial court. As in the present litigation there was a survey made by a civil engineer who had difficulty in locating the governmental division lines.

In the present case there is a dispute as to whether the defendant has acquiesced in the establishment of the fence line as contended for by the plaintiffs. There is no dispute that the fence line in controversy has existed in its present location for over 35 years. Inasmuch as it has been definitely shown that the civil engineer could not find and ascertain as to a true governmental line and it has been shown that this line has been a recognized divisional fence line for over 35 years it appears to us that the trial court was correct in its conclusion in finding that the line as contended for by the plaintiffs had been established by acquiescence.

Our cases have been numerous in connection with litigation in relation to controversies of this character.

I. We have previously announced the rule that a line marking the boundary between adjoining owners which is recognized and acquiesced in as such for a period of at least ten years becomes the true boundary line, regardless of the fact that it is not the line established by a survey. Sieck v Anderson, supra, and ca...