Minear v. Keith Furnace Co.

• Citation: 213 Iowa 663,239 N.W. 584
• Decision Date: 16 December 1931
• Docket Number: 40918.,Nos. 40909,s. 40909
• Parties: MINEAR v. KEITH FURNACE CO. (TWO CASES).
• Court: Iowa Supreme Court

213 Iowa 663

239 N.W. 584

MINEAR

v.KEITH FURNACE CO. (TWO CASES).

Nos. 40909, 40918.

Supreme Court of Iowa.

Dec. 16, 1931

Appeal from District Court, Polk County; John J. Halloran, Judge.

Two cases consolidated by order of the Chief Justice for submission on appeal. In accordance with the order, separate abstracts were filed, but the causes are submitted upon the same briefs and arguments of the respective parties.

The first case involves a disputed question between the parties as to the boundary line between the property of the plaintiff and that of the defendant Keith Furnace Company. The judgment of the trial court in this case was in favor of the plaintiff.

In the second case, the defendants, shortly after the trial of the first case, filed a petition for a new trial, basing the same on chapter 552, Code 1927. In this case the plaintiff filed a motion to dismiss, which was sustained by the trial court.

The facts relative to the two cases will be more fully stated in the opinion.

Modified as to the first case and affirmed as to the second case.

A. J. Palas and Guy A. Miller, both of Des Moines, for appellants.

Walter F. Maley and I. H. Tomlinson, both of Des Moines, for appellee.

WAGNER, J.

The defendant Iowa National Bank has a mortgage upon the property of the Keith Furnace Company, and the remaining defendants, to wit, Dorsey and Creston Coca Cola Company, are only interested by reason of a contract of purchase of a portion of the real estate owned by the furnace company. A determination of the rights as between the plaintiff and the furnace company will necessarily determine the rights of the remaining defendants. The plaintiff and the furnace company are adjoining lot owners, the plaintiff being the owner of property described as: The west 57 feet of the east 117 feet of the west 2 acres of lot 8, of the official plat of the south 1/2 of section 1, township 78, range 24, now included in and forming a part of the city of Des Moines; and the defendant being the owner of the adjoining property, described as: The west 57 feet of the east 174 feet of the west 2 acres of lot 8, of the official plat of the south 1/2 of section 1, township 78, range 24, now included in, and forming a part of, the city of Des Moines.

The furnace company has erected a two-story brick building upon its premises, approximately 150 feet long from north to south. The footings and foundation of this building were constructed late in the year 1921, and the building was erected the following spring. It is the contention of the plaintiff that the east foundation wall and the brick wall erected thereon encroach upon her property. It is the contention of the furnace company that said wall was constructed upon the line which had been acquiesced in and recognized for many years by the owners of the two tracts as the dividing line between them. The furnace company further relies upon estoppel. Upon trial, the court, basing his finding upon a survey made for plaintiff a few weeks before the commencement of this action, found that the boundary line between the properties of the plaintiff and of the furnace company is 2 feet, 6 inches west of the east wall of the Furnace Company building at the southeast corner thereof, and 1 foot, 8 1/2 inches west of said wall at the northeast corner of said building, and that the boundary line between the two properties is one corresponding therewith, and quieted the title in the plaintiff to said strip occupied by the building of the furnace company, and ordered the removal, within ninety days from the date of the decree, of that portion of the building found to encroach upon said strip. From this judgment and decree, the defendants have appealed.

[1] It is the contention of the furnace company that the east foundation wall, and the brick wall erected thereon, were constructed upon the line or a few inches to the west of a fence which had been constructed years before, and which fence line for more than ten years had been acquiesced in and recognized by the owners of the two tracts as the division line between them. It is the settled law of this state that a line between adjoining tracts, definitely marked by a fence which has been acquiesced in and recognized by the owners of the tracts as the division line for more than ten years, becomes, as between the parties, the true line between said tracts, although a subsequent survey may show otherwise, and although neither of the parties intended to claim more than his deed calls for. A multitude of authorities could be cited on this proposition, but see Bradley v. Burkhart, 139 Iowa, 323, 115 N. W. 597, 130 Am. St. Rep. 328;Miller v. Mills County, 111 Iowa, 654, 82 N. W. 1038;Norton v. Ferguson, 203 Iowa, 317, 211 N. W. 417;Brown v. Bergman, 204 Iowa, 1006, 216 N. W. 731;Stone v. Richardson, 206 Iowa, 419, 218 N. W. 332;Sorensen v. Mosbacher, 210 Iowa, 156, 230 N. W. 656;Kraft v. Tennigkeit, 210 Iowa, 81, 230 N. W. 333. It becomes necessary at this point to consider the facts as shown by the record. It will be noted that the property of the plaintiff lies to the east of that of the furnace company. Both tracts were at one time owned by Edward Minear, a son of the plaintiff, he having purchased the property now owned by his mother July 11, 1903. He built thereon a house in 1906 or 1907. On October 16, 1915, Edward Minear conveyed to his mother, the plaintiff in this action, by a warranty deed, real estate therein described as the east 55 feet of the west 114 feet of the east 174 feet of the west 2 acres, etc. On May 7, 1930, about two weeks before the commencement of this suit, Edward Minear executed unto his mother what is denominated in the record a correction deed, conveying thereby real estate by the same description as that contained in the deed obtained by him July 11, 1903. On October 17, 1904, Edward Minear obtained a deed for real estate described therein as follows: The west 57 feet of the east 174 feet of the west 2 acres of lot 8, of the official plat of the south 1/2 of section 1, township 78, range 24, now included in, and forming a part of, the city of Des Moines.

This is the property now owned by the furnace company. Edward Minear sold and conveyed this property to Carpenter on August 2, 1906, and the furnace company is the record owner thereof by a regular chain of mesne conveyances. It will thus be observed that from October 17, 1904, until August 2, 1906, Edward Minear was the owner of both tracts of real estate herein involved. There is a discrepancy in the testimony between Edward Minear and Carpenter as to when the fence between the two tracts was erected; Minear claiming that the fence was erected before his purchase of the tract now owned by the furnace company, and Carpenter and his wife, disinterested witnesses, testifying for the defendants, claiming that it was afterwards. Carpenter testified that, while Minear built the fence, he paid his share of the expense, and that he suggested to Minear to have the posts stand on the west side of the east line. The testimony of Minear is that, before the fence was constructed, he had a surveyor to give him the corners of the lot now owned by his mother, and that he placed the west fence on that line. There is other testimony in the record to the same effect. Therefore it is established by the record that the fence, whenever erected, was placed on what was believed to be the true line between the two properties. The plaintiff, during her occupancy of the premises, recognized said fence as the line, and has never contended that her property extends west of said fence line. In her argument, she admits that the fence erected by...