Sieck v. Anderson

• Decision Date: 13 January 1942
• Docket Number: 45457.
• Citation: 1 N.W.2d 647,231 Iowa 490
• Parties: SIECK v. ANDERSON.
• Court: Iowa Supreme Court

1 N.W.2d 647

231 Iowa 490

SIECK v. ANDERSON.

No. 45457.

Supreme Court of Iowa

January 13, 1942

John J. Hess and Wright & Kistle, all of Council Bluffs, for appellant.

Frank E. Northrop and Frank D. Capel, both of Council Bluffs, for appellee.

STIGER Justice.

Plaintiff is the owner of about 200 acres of real estate which adjoins the 240 acres owned by defendant on the north. County Highway G runs north and south along the east side of said lands. Plaintiff claims the boundary line between the two tracts is the south line of a certain ditch and a line fence. The petition states: "That at a time more than thirty years prior to the commencement of this action, plaintiff's grantors erected a line fence along the south line of plaintiff's real estate above described, and at about said time, constructed a ditch running east and west, the south bank of said ditch and said line of fence constituting the south line of plaintiff's property above described. That said ditch has been maintained by plaintiff and his grantors ever since said ditch was constructed and for a period of more than thirty years, and the south line of said ditch forms the boundary line between plaintiff's property above described on the north, and defendant's property above described on the south. That plaintiff's grantors erected said fence and constructed said ditch with the intent to make the same the south boundary line of said above described property, and to claim, occupy, and use all of the ground and real estate lying north of said fence and the south line of said ditch as their own, and plaintiff and his said grantors have, in fact, claimed, occupied, used, and cultivated all of said ground lying north of said line so established, continuously, openly, notoriously, and adversely under claim of right for a period of more than thirty years and that said line, as fixed by said fence and the south bank of said ditch, during all of said time constituted, and now constitutes the south boundary of the land occupied and claimed by plaintiff and his grantors, and by reason thereof plaintiff and his grantors have acquired title to all the lands and real estate lying north of said land above described."

The petition also alleged that plaintiff and defendant and their grantors have for a period of more than 30 years recognized said line as the boundary line between their respective tracts of real estate and that defendant and grantors at no time prior to October 30, 1939, ever made any claim that said line was not the true boundary line. The petition further stated: "That on or about the 30th day of October, 1939 the defendant, without authority or permission from this plaintiff, unlawfully and illegally entered upon plaintiff's property above described and constructed a line of fence running east and west at a point about twenty-one feet north of the south line of plaintiff's property. That said acts of the defendant constitute a trespass upon plaintiff's land, and plaintiff is informed and believes that the defendant makes some claim to the real estate of plaintiff located south of the line of said fence extended."

The trial court found that the division line for many years and more than 10 years was marked by a line fence commencing at County Highway G on the east and extending in a westerly direction to Mosquito Creek and that the boundary line west of the creek to the west side of the land extended due west in line with the said fence and that said line, by reason of adverse possession and acquiescence, is, as claimed by plaintiff, now the true boundary line between the premises.

The decree further states: "That more than 25 years prior to the commencement of this action there was constructed a ditch along the north side of a portion of said fence commencing with County Highway "G" and extending westerly therefrom. That the original fence along the south side of said ditch is no longer in existence, but that the south bank of said ditch conforms to said original line of fence and has constituted the south boundary line of plaintiff's property above described for more than ten years prior to the commencement of this action, and has been acquiesced in by plaintiff and defendant and their grantors and has been recognized by them as the division line between said properties during all of said period. That the fence now on said premises and extending westerly from approximately the west end of said ditch to Mosquito Creek is substantially the same location as the original fence along said division line, and is and constitutes the division line between said premises and that said line now marked by said fence has been acquiesced in by plaintiff and defendant, and their grantors for more than ten years prior to the commencement of this action, and has been recognized by said parties and their grantors during all of said period."

The court also found that plaintiff and his grantors had established title to the land to said boundary line by adverse possession and that defendant had wrongfully erected the fence 25 feet north of said true division line.

We are in full accord with the findings and adjudication of the trial court.

Harvey Lewis owned the land now owned by plaintiff from 1900 to 1918 and lived on and farmed the place during the period of his ownership. He testified that the original fence on his south line was directly in line with the east and west fence east of County Highway G which was the division line between the farm land east of plaintiff's and defendant's property. In 1908, he constructed a drainage ditch about 18 inches deep and 2 1/2 feet wide about 2 feet north of his south line fence. The ditch extended west from County Highway G about 100 rods. All during the time Mr. Lewis owned this land he farmed it right down to the ditch. No occupant of the land, now owned by the defendant, claimed the fence was not the true division line and all owners and occupants of the Anderson land farmed only to the fence or ditch. The fence now running west from the ditch to the creek is in the same place that the original fence was, on his south line, when he bought the premises in 1900. He testified the fence, built by defendant Anderson, is 24 feet north of the original division line fence; that this west fence is in the same place as where the fence was when he lived on the farm. He maintained the original fence all of the time he owned this farm and a portion of this fence is still there to the west.

Plaintiff purchased his farm in 1929. He testified the fence between the two farms was a real good fence in 1913; that it was about two feet south of the present ditch; that the fence, running west from the ditch, is in line with the south bank of the ditch; that in 1913 the ditch was about two feet north of the division fence; that the fence west of the ditch is in the same place as it was in 1913; that he intended to claim and did claim to this ditch and fence when he acquired the property in 1929; that he at all times claimed the fence and ditch constituted his south line; that during the 26 years he has known this land no person occupying the land of defendant has ever farmed across said line; that the owners and occupants of said land only farmed to the fence or ditch; that defendant never made any claim to any part of the property north of the line until he put his fence in his wheat field in 1939, which fence was 24 feet north of said line; that when defendant built his fence there were about 60 rods of division fence from the creek east to the ditch and in line with the south bank of the ditch.

That part of the fence that was formerly along the south bank of the ditch has not been maintained during recent years by the several owners of plaintiff's land.

Owners of land in the neighborhood of the lands in controversy and tenants who had rented the lands now owned by plaintiff and defendant, and who were familiar with said lands for many years, testified that the occupants of plaintiff's land farmed south to the ditch and fence and the occupants of the defendant's land farmed north to the ditch and fence and that occupants of neither farm would cross this line in their farming operations but would turn at said line. Their testimony covered an uninterrupted period of over 30 years. They...