Trimpl v. Meyer

• Decision Date: 27 July 1955
• Docket Number: No. 48738,48738
• Citation: 71 N.W.2d 437,246 Iowa 1245
• Parties: W. W. TRIMPL and D. Lorene Trimpl, Appellees, v. Victor J. MEYER and Mildred Meyer, Appellants.
• Court: Iowa Supreme Court

Page 437

71 N.W.2d 437

246 Iowa 1245

W. W. TRIMPL and D. Lorene Trimpl, Appellees, v. Victor J. MEYER and Mildred Meyer, Appellants.

No. 48738.

Supreme Court of Iowa.

July 27, 1955.

Loth & Melton, Fort Dodge, for appellants.

Rider & Bastian, and L. F. Beisser, Fort Dodge, for appellees.

GARFIELD, Justice.

This is a dispute over the boundary line between adjoining residence properties in Fort Dodge. Since about September, 1948, plaintiffs have owned and occupied as their home the south 30 feet of Lot 1 in Struble and Hellen's Subdivision of Block 6, Morrison and Duncombe's Addition to Fort Dodge. Since about September, 1947, defendants have owned and occupied as their home the south half of said Lot 1 except the south 30 feet thereof. Defendants thus adjoin plaintiffs on the north.

The plat of the addition shows Lot 1 is 165 feet north and south by 58.5 feet east and west. Fifteenth street runs north and south along the east side of Lot 1. Both properties face east toward the street. Thus according to the plat plaintiffs' frontage on Fifteenth street is 30 feet, defendants' is 52.5 feet. Each property extends back (west) 58.5 feet from the street. An east and west alley about 20 feet wide abuts plaintiffs on the south. There is a sidewalk along the west side of Fifteenth street in front of both properties. A sidewalk also leads west from the street sidewalk to a grade door in about the center of the north side of plaintiffs' dwelling.

In October, 1953, at defendants' request the city engineer made a survey to locate the boundary between defendants' and plaintiffs' properties. He found the line about two feet south of where plaintiffs claim it is. When defendants started to erect a fence close to the line found by the engineer, plaintiffs commenced this suit in equity to enjoin its erection on the theory the line as claimed by them had been established by mutual acquiescence for more than 10 years and also by estoppel. Following trial to the court in June, 1954, there was a decree for plaintiffs from which defendants have appealed.

While we give weight to the trial court's decision our review in this and other equity cases is de novo. Rule 334, Rules of Civil Procedure, 58 I.C.A. However, a special statutory proceeding under chapter 650, Code 1954, I.C.A., like three of the cases plaintiffs have cited, is not reviewable here de novo and the judgment has the effect of a jury verdict which will be affirmed if there is substantial evidence to support it. Code section 650.15; Concannon v. Blackman, 232 Iowa 722, 723-724, 6 N.W.2d 116, 117, and citations; Eggers v. Mitchem, 239 Iowa 1211, 1213, 34 N.W.2d 603, 605; DeViney v. Hughes, 243 Iowa 1388, 1392, 55 N.W.2d 478, 480; 11 C.J.S., Boundaries, § 88 e, p. 670.

Although we have given weight to the learned trial court's decision we are unable to reach the same result. We are convinced plaintiffs have failed to establish the boundary line as claimed by them either by mutual acquiescence or estoppel.

The burden of proof rests upon plaintiffs. Insofar as the boundary claimed by them varies from the true line the proof should be clear. 11 C.J.S., Boundaries, § 68; Eggers v. Mitchem and DeViney v. Hughes, both supra. Barnes v. Bishop, Iowa, 192 N.W. 254, 255, states that in the absence of proof of the true location of a boundary convincing evidence is necessary that a claimed boundary has been acquiesced in for 10 years or more.

I. The rule of law upon which plaintiffs mainly rely is well settled, especially in Iowa. Where two adjoining owners for 10 years or more mutually acquiesce in a line, definitely marked by a fence or in some other manner as the dividing line between them, such line becomes the true boundary although a survey may show otherwise and neither party intended to claim more than called for by his deed. Minear v. Keith Furnace Co., 213 Iowa 663, 666, 239 N.W. 584, and citations; Concannon v. Blackman, supra, 232 Iowa 722, 724, 6 N.W.2d 116, 117, and citations; Vander Zyl v. Muilenberg, 239 Iowa 73, 79, 29 N.W.2d 412, 415; Eggers v. Mitchem, supra, 239 Iowa 1211, 1216, 34 N.W.2d 603, 606. See also Atkins v. Reagan, 244 Iowa 1387, 1390, 60 N.W.2d 790, 791; Petrus v. Chicago, R. I. & P. R. Co., 245 Iowa 222, 61 N.W.2d 439, 442. Many other Iowa decisions which recognize this rule are cited in the annotation 69 A.L.R. 1430, 1491-2, supplemented in 113 A.L.R. 421, 432.

Acquiescence in a boundary must continue for the statutory period of 10 years in order to become effectual. Evert v. Turner, 184 Iowa 1253, 1260, 1261, 169 N.W. 625; City of Cedar Rapids v. Marshall, 199 Iowa 1262, 1269, 203 N.W. 932; Annotations 69 A.L.R. 1430, 1500, 113 A.L.R. 421, 435; 11 C.J.S., Boundaries, § 80; 8 Am.Jur., Boundaries, section 80. See also decisions cited last above.

Code section 650.6 in effect requires a plea and proof of acquiescence 'by the parties or their grantors for a period of ten consecutive years, * * *.' Although this provision is in the chapter relating to the special statutory proceeding to which we have referred we have no doubt it is declaratory of the law applicable here.

It is doubtful at best that there is sufficient proof plaintiffs and defendants or their grantors acquiesced for any period in a definite boundary line. In any event we are clear there is insufficient evidence of such mutual acquiescence for the requisite period of 10 years. This is fatal to plaintiffs' claim of a boundary by acquiescence.

There is no evidence the boundary in question has ever been marked by a fence or in any other manner except at the front and rear. The sidewalk that was in front of plaintiffs' property when they moved there in the fall of 1948 was put in when the house was built in 1912 or before. Plaintiffs replaced this walk in June, 1949. The sidewalk in front of defendants' property was built at some other time, has a somewhat different appearance and the contractor who put it in stamped his name in the south end of the walk.

When plaintiffs moved in there were spirea bushes near the rear (west) line of their property which plaintiffs immediately cut down because they took up too much room. In the fall of 1953 plaintiffs built a north and south fence along their west line. They testify the fence is in the same location as the bushes were. Defendant Mrs. Meyer says the fence extends farther north. Plaintiffs claim and the trial court held the boundary is a straight line from the division between the sidewalks on the east to the north end of the fence on the west.

There is evidence that between the fall of 1948 and June, 1953, plaintiffs and defendants acquiesced in a line about where the trial court fixed it. During this period of less than five years the adjoining owners mowed the grass, and shoveled snow from their sidewalk, up to such a line. There is testimony, denied by Mrs. Meyer, that she pointed out to plaintiffs the division in the front sidewalk as marking the boundary. It is not claimed this was before plaintiffs purchased or occupied their property. Sometime after plaintiffs replaced their front sidewalk in 1949 they put in a clothesline, generally north and south, east of where the rear fence now stands. The north pole of the clothesline was set in concrete just south of the line as claimed by plaintiffs.

In the spring of 1951 defendants drove three stakes and connected them with rope along all or part of the claimed line, to protect new grass. The stakes and rope were there only a month or two. The testimony regarding the stakes and rope is of little if any aid to plaintiffs. Mrs. Meyer says and it is not disputed that someone presumably Mr. Trimpl, moved the stakes farther north, she then moved them back south and Trimpl commented to her regarding what she did. This is evidence the line as claimed by plaintiffs was not then mutually acquiesced in but was disputed.

As we have intimated, there is no testimony plaintiffs and defendants mutually acquiesced in a definite boundary line before plaintiffs moved into their home. Mrs. Trimpl says this was October 23, 1948. It appears from plaintiffs' own evidence there has been no acquiescence by defendants in a line since about June, 1953, a year before the trial. Throughout this year the location of the boundary has been in dispute. The only testimony of acquiescence in a boundary at any time other than 1948 to 1953 is that of Mr. Webster who from 1912 to 1914 owned and occupied the property plaintiffs now own. Webster's evidence is confined to the two years of his ownership.

Mr. Webster says he put up a clothesline probably 25 feet long with two posts in the area two feet wide now in dispute. The east post was north of his grade door and the clothesline ran west from there. When Webster purchased the property 'this line was marked with a stake on the northwest corner, next to the dividing line.' There is no other evidence regarding this stake or the clothesline Webster built. It is not shown either remained in place after he left in 1914. A division between the front sidewalks was visible during Webster's occupancy and he and the adjoining owner on the north cut the grass to that line. This is the substance of competent testimony by Mr. Webster that adds anything to plaintiffs' case.

As before indicated, there is no clear proof the parties hereto or their predecessors in title have for 10 consecutive years mutually acquiesced in the boundary line as claimed by plaintiffs. Indeed there is no clear proof of any such acquiescence for as long as seven years all told. And the first two of the seven years are separated from the rest by a gap of 34 years (1914 to 1948) as to which the evidence is silent.

In Evert v. Turner, supra, 184 Iowa 1253, 1260, 1261, 169 N.W. 625, and City of Cedar Rapids v. Marshall, supra, 199 Iowa 1262, 1269, 203 N.W. 932, claims of acquiescence in a boundary line were denied because acquiescence for the statutory period of 10 years was not shown. A like...