United States v. Wilcox

• Decision Date: 29 September 1966
• Docket Number: Civ. No. 63-C-3029-W.
• Citation: 258 F. Supp. 944
• Parties: UNITED STATES of America, Plaintiff, v. Douglas WILCOX, Francis Small, and Alfred Small, Defendants.
• Court: U.S. District Court — Northern District of Iowa

258 F. Supp. 944

UNITED STATES of America, Plaintiff, v. Douglas WILCOX, Francis Small, and Alfred Small, Defendants.

Civ. No. 63-C-3029-W.

United States District Court N. D. Iowa, W. D.

September 29, 1966.

Donald E. O'Brien, U. S. Atty., Sioux City, Iowa, for plaintiff.

Ronald E. Runge, Sioux City, Iowa, for defendants.

MEMORANDUM AND ORDER.

WILLIAM C. HANSON, District Judge.

The United States is the owner of the legal title to the land lying south of the east and west center line of Section twenty-eight, Township eighty-six north, Range 47 west, in Woodbury County. The defendant Wilcox owns approximately forty acres having a common boundary with the United States land along the east and west center line of Section 28 in Woodbury County. (The defendant Wilcox has deeded all of his forty acres except that now in question.) There is no dispute on the legal description of the land.

The Indians hold equitable title to that land described as being owned by the United States and defendant Small farms it as a tenant of the Indians and has done so since 1952.

The disputed land runs the entire length of the common boundary along the east and west center line of Section 28. For purposes of this action, it is not necessary to describe this land with any greater detail. It is all part of what was once called Flowers Island.

There was what was alleged to be a fence along this disputed boundary which was replaced by a new fence in 1952 or 1953. The United States did not purport to show that the alleged fence followed the center line of Section 28 and the evidence indicated the contrary. For purposes of this case, it is not necessary to decide just how far off the alleged fence was, although the evidence did tend to clearly show it was off 128 ft. on the east and 199 ft. on the west end.

The United States relies on acquiescence, adverse possession, and estoppel and these theories will be discussed in that order.

It may be assumed without actually being decided that there was acquiescence in the new fence for a year or two following 1953. The tenant for the Indians put in a new fence along the line where the old fence had been. This was completed in 1953. Wilcox apparently knew of the fence at least at the time it was completed. The evidence indicates that it was not until a year later in 1954 that he notified the Indians that the fence was incorrect.

The actual date when Wilcox notified the Indians and their tenant that the fence was incorrect is somewhat in dispute. The tenant of the Indians testified that it was into 1957 before they were notified that the fence was incorrect. However, a letter from the Indians' agent, Allen Adams, to Wilcox shows that at least sometime prior to June 1956, Wilcox had informed the tenant of the Indians that the fence was not correct. The United States, who had the burden of proof, did not call Adams or attempt to explain this discrepancy. In any event, the real question is whether there was any acquiescence prior to 1953 to join with the year or two after 1953. Ten years of acquiescence is required. Brown v. Bergman, 204 Iowa 1006, 216 N.W. 731.

Acquiescence means a consent to the conditions and involves knowledge of them. 12 Am.Jur.2d Section 86, p. 621. Merely a fence is insufficient if there is no knowledge and consent that it is the boundary, for a fence can be constructed for purposes other than a boundary. 12 Am.Jur.2d Section 89, pp. 624, 625; 170 A.L.R. 1147; Feight v. Hansen, S.D., 131 N.W.2d 64; Fitch v. Slama, 177 Neb. 965, 128 N.W.2d 377. Where a party builds a fence along what is even close to his boundary and the other party knows of it and does nothing, that is generally acquiescence, and such is what happened after 1953. However, this is not what happened prior to 1953. Neither party involved in this case built that fence. It was built by Wilbur Flowers at a time when he claimed ownership of the whole of what is called Flowers Island. Why he built the fence, how he built it, and what he meant it to signify is not disclosed in the record. So we do not have a case here where a fence was built by a person to set off his land from the land of someone else.

The defendant Wilcox denies that he ever recognized the old fence as the boundary. His testimony was that the area was heavily wooded, that the old fence was built by sight, that it was just put through the woods at the most convenient spot, and that even if it was to mean roughly the center line, still it was never intended to mean the actual center line. There is nothing here that in any way convincingly disputes this position.

There is some evidence that the Indians paid a tenant in 1938 or 1939 to do some repair work on their fences. Only by inference could it be said that possibly some repair work was done on the old fence in question. In Moffitt v. Future Assurance Associates, Inc., 140 N.W.2d 108 (Iowa) and Olson v. Clark, 252 Iowa 1133, 109 N.W.2d 441 the court said that the evidence must be clear. The tenants stated that they saw a sign on a post of the old fence saying Tribal Land. Wilcox never saw such a sign, and if the sign was there, it has disappeared. This evidence of the sign and repairing fences was some evidence that the Indians believed it to be the boundary. Yet there is no evidence that the defendant Wilcox or anyone in privy with him knew of such intentions of the Indians. Sometimes there can be such opportunity to know that a person should be required to take notice. Loghry v. Capel, 132 N.W.2d 417 (Iowa); Olson v. Clark, supra. It is doubtful that Wilcox, or those in privy with him, had such an opportunity to know what the Indians' intentions were that he should be held to know. It is impossible to say that he had such opportunity to know of the Indians' intentions that he would be held to have known. This is not like the Olson case where one defendant lived on the land, the plaintiff built the fence, and the farming operation by plaintiff was readily discernible. The Olson case is like the present case after 1953.

The land here in question was heavily wooded and was badly flooded in 1952. Prior to 1952, the Missouri River often flooded twice a year. Wilcox did not live on the land except possibly sometime back in the 1930s. A few cattle of the Indians' tenants may have strayed on the land but there was nothing for them to eat. It was not pasture land. The fence, if it can be called one, was in very bad shape due to the fact that the Missouri River flooded the land. In many places, the wire or posts were down or wire was nailed to trees, although it was testified that it would hold cattle. The Court concludes that the plaintiff failed to prove acquiescence.

ADVERSE POSSESSION

In the present case, Smith, a realty officer of the Indians, testified that the Indians only intended to claim Indian land and never intended to take any land that belongs to Wilcox. This defeats any claim for adverse possession. In Boyle v. D-X Sunray Oil Co., 191 F.Supp. 263 (D.C.Iowa), the court held that:

"Ever since the holding in the early Iowa case of Grube v. Wells, 1871, 34 Iowa 148, it has been the rule in this state that there can not be adverse possession of a disputed strip up to a particular line unless there is an intention to claim title to that line even though it might not be the true line."

While at one time there might have been a question as to the validity of the strict doctrine of Grube v. Wells (see Kotze v. Sullivan, 210 Iowa 600, 231 N.W. 339), the Iowa Court in Swim v. Langland, 234 Iowa 46, 11 N.W.2d 713 laid all doubt to rest. The court stated:

"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 * * * in the slightest degree discredits the unanswerable logic of that opinion."

The Iowa Court apparently considers Kotze v. Sullivan, supra, to be a case of acquiescence. The Iowa Court has adhered to the rule. Nichols v. Kirchner, 241 Iowa 99, 40 N.W.2d 13; Clear Lake Amusement Corporation v. Lewis, 236 Iowa 132, 18 N.W.2d 192. See also 80 A.L.R.2d 1174 to 1183; Brewer v. Claypool, 223 Iowa 1235, 275 N.W. 34; Patrick v. Cheney, 226 Iowa 853, 285 N.W. 184.

No contention of claim of title was asserted and they did not testify that it was the intention to claim the land up to the old fence in all events whether it was the true boundary or not but rather stated that they intended to claim only the Indians' land as opposed to the Wilcox land. Under such testimony, the rule as carefully explained in the D-X Sunray case applies. Hence, no sufficient proof of claim of right was established.

Not only was there insufficient proof of claim of right but there was insufficient hostile use and possession to establish adverse possession. There are many cases which hold the mere fact of a fence is insufficient even where (contrary to the present case) the claiming party built the fence. See e. g. Deweese v. Logue, 208 Ark. 79, 185 S.W.2d 85; West Production Co. v. Kahanek, 132 Tex. 153, 121 S.W.2d 328 (claimant had repaired an old fence); Waters v. Madden, 197 Ark. 380, 122 S.W.2d 554; Tricket v. Lucas, 211 Ark. 954, 203 S.W.2d 400; Ennis v. Stanley, 346 Mich. 296, 78 N.W. 2d 114; Orlando v. Moore, Tex.Civ.App., 274 S.W.2d 86; Patrick v. Cheney, supra; 80 A.L.R.2d 1179; and 170 A.L.R. 854-856.

In order to establish adverse possession by pasturing of livestock, it is necessary that evidence show at least a reasonable continuous use during the entire period. Feight v. Hansen, S.D., 131 N.W.2d 64; 12 Am.Jur.2d Section 89, p. 625. There was not the necessary use prior to 1953 and, as has been determined with respect to acquiescence, the aspect of notoriety...