Swim v. Langland

• Decision Date: 16 November 1943
• Docket Number: 46315.
• Citation: 11 N.W.2d 713,234 Iowa 46
• Parties: SWIM v. LANGLAND et al.
• Court: Iowa Supreme Court

11 N.W.2d 713

234 Iowa 46

SWIM v. LANGLAND et al.

No. 46315.

Supreme Court of Iowa

November 16, 1943

F. W. Ganoe, of Boone, for appellant.

E C. Schroeder, of Boone, for appellees.

SMITH Justice.

This controversy involves the question of ownership of about 58 hundredths of an acre of ground in Boone County, lying along the east bank of the Des Moines River, immediately south of the easterly end of the Elk Rapids highway bridge. It is on the west side of the highway which comes from the east at or near its southern end, turns north and extends along its easterly side some 400 feet to the easterly end of the bridge, thence west and across said bridge. The location is 3 1/2 or4 miles from the town of Madrid.

At the south end of the tract in question a fence runs from the corner of the highway west to the river approximately 100 feet. The fence is said to be about on a line with the south side of the highway before it turns north-that is, about on a line that would be the south line of the highway extended westerly to the river. The tract narrows almost to a point at the north end near the bridge.

The question here is whether this somewhat triangular tract is a part of Lot 3, for which defendants have a deed from the county, or of Lot 6, owned by plaintiff by purchase some 14 years ago. If it is not a part of lot 6, plaintiff nevertheless makes some nebulous claim of ownership by adverse possession under claim of right.

Defendants on July 7, 1941, purchased from Boone County for $30 the land described as all of lot 3 in the southeast quarter of the northwest quarter of section 34. They assumed this tract in question to be a part of said lot 3 and started to tear down the fence at its south end.

Plaintiff brought this suit to enjoin them; defendants answered denying plaintiff's ownership, and by counterclaim asked for decree quieting title. The district court dismissed plaintiff's petition and granted defendants a decree quieting title against plaintiff who appeals.

We are furnished with no official plat or competent survey that attempts to show what are the boundaries of lot 3 and lot 6, respectively. Plaintiff's petition describes the tract in question as a part of lot 3 but does not say in what part of the section lot 3 is situated. In his testimony, however, plaintiff insists he makes no claim to lot 3 and states his understanding that the tract is a part of lot 6 which his petition describes as in the southwest quarter of the northeast quarter. The deed to defendants from the county describes lot 3 as being in the southeast quarter of the northwest quarter.

We have read the transcript with care. The oral testimony is too confused and indefinite to aid us much. In fact, the case is presented on both sides with considerable disregard of the exactness desirable where title and description of real estate are concerned.

I Plaintiff-appellant has the burden of showing his right to an injunction. He bases his claim upon ownership of the tract and asserts no other right of possession. We agree with the finding and decree of the district court at this point.

In the first place, there is no evidence upon which we can find this tract to be any part of lot 6 to which we assume appellant holds the title. We have no way to examine the official records and the recorded plats and deeds which were offered in evidence. The railway blueprint offered by appellant, which we will comment on later, does not show lot 6 at all.

The trial court correctly found there was not sufficient evidence to support title by adverse possession. There is no color of title shown or claimed and we see nothing upon which appellant can base a claim of right. He bought, by deed from Martin, and by tax deed on certificate assigned to him by Cedarquist, whatever he owns in that neighborhood but dealt with witness Larson as Martin's and Cedarquist's agent. Larson testifies he told appellant when the latter asked him if the land conveyed by this deed included this tract: "Well, I think it does. People that have lived here and owned it or rented it, always used that for pasture."

Plaintiff testifies as to his deal with Larson:

"Q. Was there anything said about the land on the west side of the road? A. He said when he was showing me the land that that across the road went with the east place where I live, and during that time it had to go through the court.

"Q. To quiet title? A. To quiet title, and I understood that Cedarquist,-I understood it didn't go with the place. I didn't know exactly and Mr. Larson didn't, but he says afterwards, he said Cedarquist had it and he would turn it to me.

"Q. Had the land? A. Yes, had the land next to the river.

"Q. All right, did you close up the deal? A. Well, no, *** I says, I understand that I don't get a deed for that across the road. Well, he says, Mr. Cedarquist has it and he will turn it to you. I said, you promised me that it went with the place. It has got the spring on it. If I don't get that I don't want any of it. He went over to Cedarquist's office and had him transfer it over."

Subsequent testimony seems to indicate that what was obtained from Cedarquist was the assignment of a tax sale certificate covering Lot six. Plaintiff did not get his tax deed to lot 6 until 1942. It left still unanswered the question whether the tract in question was included with lot 6.

This testimony falls far short of showing a claim of right upon which plaintiff can base a title by adverse possession. An early decision of this court is exactly in point and reasoning there is conclusive. It is there held squarely that one acquiring title to a described lot cannot acquire title by adverse possession of a part of an adjoining lot by occupying it under the mistaken belief that it was a part of the lot to which he really held title. Grube v. Wells, 34 Iowa 148.

No subsequent case we have found, and none cited by appellant, overrules or in the slightest degree discredits the unanswerable logic of that opinion by Chief Justice Beck. See 34 Iowa at pages 150...