Olson v. Clark
| Decision Date | 13 June 1961 |
| Docket Number | No. 50279,50279 |
| Citation | 252 Iowa 1133,109 N.W.2d 441 |
| Parties | Francis J. OLSON and Emma J. Olson, Appellees, v. Hazel CLARK, Howard Queen, Maud Seubert, Harold Queen, Rose Loraditch, Mary Brannen, Dorothy Mercer, Phylis Nelson, Virginia Statter, Leslie Hickman, Albert Hickman, Shirley Fender, and Robert Hickman, Appellants. |
| Court | Iowa Supreme Court |
John D. Beardsley, Onawa, for appellants.
Crary & Huff, Sioux City, for appellees.
Plaintiffs bring this action to quiet title to high bank and accretion land along the Missouri River. They describe their land by metes and bounds. Defendants deny only the west boundary. The trial court granted the relief prayed thus establishing the west boundary as claimed by plaintiffs. Reference to the parties will hereafter be in the singular.
The land involved is located in Section 28, Township 85 North, Range 47, West of the 5th P.M. in Monona County and lies along the Missouri River. The high bank land in controversy is a small triangular tract commencing at the quarter corner between Sections 21 and 28, thence West 112.62 feet ot the high bank, thence Southeasterly along the high bank to the West line of the Northeast Quarter of Section 28, thence North to the quarter corner. Plaintiff contends the west boundary commences at the point of intersection of the high bank with the section line between Sections 21 and 28. (This is the point 112.62 feet West of the quarter corner above mentioned.) Thence South 33? 23' West 329.80 feet, thence South 45? West 1792.90 feet to the present high bank of the Missouri. Defendant contends the west boundary is as follows: Commencing at the Northwest corner of the Northeast Quarter of Section 28-85-47 (), thence South 1860 feet, thence Southwesterly at a 45? angle for 1500 feet. It was agreed by the parties that the angle from the land in question over to the river should be South 45? West, that the question remains where the angle should commence.
Plaintiff's evidence is that he went into possession of land bought by him in Sections 28 and 27 east of the triangular piece in 1919. And at that time he went into possession of the triangular tract and farmed it continuously to the time of trial along with other land to the east. Plaintiff does not claim record title to the triangular tract. In 1922 plaintiff put in a fence along the west line now claimed by him down to the water's edge. This fence has been maintained and extended to the water's edge as the river moved to the south either naturally or as the government engineers changed the channel to stabilize the river. The southerly 1792.20 feet was erected in 1959 South 45? West.
I. Defendant contends plaintiff's evidence neither establishes adverse possession nor acquiescence in the 1922 fence as a boundary. We believe from a consideration of the whole record plaintiff has proved acquiescence in the fence as a boundary. This action is in equity and our review is de novo. The burden of proof rests on plaintiff and his proof as to the claimed boundary being acquiesced in for ten years or more must be clear. Trimpl v. Meyer, 246 Iowa 1245, 1248, 71 N.W.2d 437, 438. The Trimpl case states the Iowa rule on acquiescence, at page 1248 of 246 Iowa, at page 438 of 71 N.W.2d, as follows:
II. The situation of the parties as to being adjoining owners is unique. Neither claims record title to the triangular tract. Plaintiff has farmed and fenced the same and there is some evidence he paid taxes thereon and the accretion thereto. Defendant claims some right therein by virtue of the claimed 1936 agreement dividing the accretion land. From the record it appears plaintiff owns land in Sections 28 and 27 lying east and southeast along the high bank. Defendant owns land in Section 21 lying northwest along the high bank. However, the failure of either to hold record title here would not defeat the acquiescence in the boundary line if it is otherwise proved. Either party could gain title to land held by record title by the other upon such proof. See authorities last above cited and Leeka v. Chambers, 232 Iowa 1043, 6 N.W.2d 837, and Morley v. Murphy, 179 Iowa 853, 162 N.W. 63. If others have rights here they are in no way affected.
III. Plaintiff's evidence as to the building and maintaining of the fence is clear and that he claimed ownership of the land up to the fence is equally so. The claim of ownership to a line or fence implies that is the boundary claimed, that that is the point or line marking the limits of his land. We do not think plaintiff's testimony on cross-examination that the fence was built 'to keep my cattle from going around' and 'I didn't decide it (where to put the fence) I just put it in' shows an intent on his part that the fence was a barrier only to turn cattle. The whole import of his testimony is that he claimed ownership of the land to the fence and this was the boundary between his land and that of defendant. See Kotze v. Sullivan, 210 Iowa 600, 603, 231 N.W. 339, and Fullmer v. Beck, 105 Iowa 517, 520, 75 N.W. 366. Six witnesses in addition to plaintiff testified to the existence of the fence for well over the statutory perior. They also testify to the farming of the triangular tract with the land to the east and pasturing the accretion land south and west of the high bank.
The farming activities west of the quarter corner between Sections 21 and 28 to the edge of the high bank are substantiated by Exhibit 39, an aerial photograph taken in 1949. The existence of the fence claimed for over the statutory period is substantiated by Exhibit 34, a picture showing the tree growing around the wire. There is undisputed evidence it would take all of 20 years for wires to be imbedded in the trees as shown in Exhibit 34.
The evidence of defendant's witnesses is that they did not see this fence until 1959. The one defendant to testify did say, 'There has been a fence from the corner of Section 28 extending west to the high bank part of the time.' This is the fence along the east-west road on the north side of the triangular tract. The west end of this fence forms the corner with, and is, the north end of the boundary line fence going south and west through the accretion land. This defendant also stated he had never seen any crops on the triangular tract. The witnesses for defendant testified to the same effect but qualified to the extent if the fence existed or there were farming operations on the triangular tract they had not noticed them.
This testimony of defendant goes to notice or knowledge of plaintiff's claim of the fence as a boundary. Acquiescence which will establish a boundary line is consent inferred from silence, a tacit encouragement involving notice or knowledge of the other parties' claim; it exists when a person who knows that he is entitled to impeach a transaction or enforce a right neglects to do so for such a length of time that under the circumstances the other party may fairly infer he has waived or abandoned his right. Atkins v. Reagan, 244 Iowa 1387, 1390, 60 N.W.2d 790, 791, and citations. However, mere denial of the existence of the fence or of plaintiff's claim thereto will not defeat his claim if the circumstances are such that defendant should be required to take notice thereof.
Here the accretion land is covered with trees and brush and is used only for pasture. A fence through this land is not readily discernible from the road, but the starting point at the road is. The farming operation is readily discernible. A land owner is charged with more than a glance from the road. The denials of knowledge by defendant are not convincing. This is particularly true here because the defendant who did testify had not lived in the immediate vicinity for years, though he did frequently return for hunting and fishing. His brother, one of the defendants who lived on and farmed their land in Section 21 and had since 1937, was not a witness. His absence was not explained. His knowledge of the activities of plaintiff and the location of the fence should have been greater than any witness called by defendant. Shover v. Iowa Lutheran Hospital, Iowa, 107 N.W.2d 85, 96. Under the circumstances presented the defendants had such knowledge as to put them on notice of plaintiff's claim and they have remained silent for the statutory period. The circumstances are such that an agreement ought to be implied. Leeka v. Chambers, 232 Iowa 1043, 6 N.W.2d 837, and citations.
The circumstances here differ from those in Petrus v. Chicago, R. I. & P. R. Co., 245 Iowa 222, 227, 61 N.W.2d 439, 441, where the claimant recognized at least some right in the defendant in negotiations within a year or two before trial. They likewise differ from the...
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