Vander Zyl v. Muilenberg

• Decision Date: 11 November 1947
• Docket Number: 47127.
• Parties: VANDER ZYL v. MUILENBERG et al.
• Court: Iowa Supreme Court

29 N.W.2d 412

239 Iowa 73

VANDER ZYL v. MUILENBERG et al.

No. 47127.

Supreme Court of Iowa

November 11, 1947

Rehearing Denied Jan. 16, 1948.

Robert K. Brannon, of Denison, and William P. Welch of Logan, for appellants.

T H. Klein, of Pella, and J. H. Johnson, of Knoxville, for appellee.

OLIVER, Chief Justice.

The south line of lot 5, block 87, in Pella, is the north line of lot 6. Each lot is 100 feet in width north and south. On the west, or front end of the lots is a paved street. On the east is an alley. The land in dispute is the north 18 1/4 feet of lot 6.

Many years ago one Wheeler owned both lots and occupied a dwelling thereon. In 1906 his heirs conveyed lot 5 to one Yarham who divided the house and moved part of it to the south part of lot 5. There were then no improvements nor visible monuments to indicate the line between lots 5 and 6 and the house protruded south over the line about 7 feet. In 1907 Yarham conveyed the south half of lot 5 to Joe Muilenberg Sr., and the latter, with his family, continuously occupied the dwelling until his death in 1946.

In 1912 the Wheeler heirs conveyed lot 6 to plaintiff Paul Vander Zyl. At that time lot 6 and the adjacent property were part of a field of corn. A survey made for plaintiff indicated the Muilenberg house extended over their lot line and was partly upon the north portion of lot 6. During the survey Mrs Muilenberg, Sr. removed the stakes set by the surveyor in the land occupied by the Muilenbergs and required him to leave. Whether plaintiff was present at this occurrence is in dispute but he admits it was brought to his attention.

Later in the same year plaintiff constructed his dwelling upon lot 6. Dirt was hauled in to fill lot 6. However, when plaintiff's employee attempted to move dirt in the part of lot 6 (north 18 1/4 feet) claimed by the Muilenberg, Mrs. Muilenberg ordered him to desist and he did so. There was no further attempt to grade or fill that part of lot 6. Plaintiff disputed testimony that he was then present but admitted he knew Mrs. Muilenberg stopped the work on the north part of lot 6. He testified he did nothing about it--was too busy to think about the extreme end of his lot--it wasn't in his way--the job was completed. This left a depression or little ditch immediately north of plaintiff's terrace and running from the west to the front of lot 6 about 18 1/4 feet from the north side of the lot.

Since about 1912 Muilenberg, Sr. maintained a garden on the east end of the north part of lot 6. Immediately south of that garden was a garden maintained by plaintiff. The two gardens were separated by a path which ran east and west from the alley and along the depression. This path and depression, which defendants contend mark their south boundary, are 18 1/4 feet south of and parallel to the north line of lot 6. Plaintiff testified the path between the two gardens was there only during the garden season and that each year it was plowed and no two years was it the same. However, a neighbor who took over the Muilenberg garden upon the death of Muilenberg, Sr. in 1946, testified the path had always been there until the man who plowed the Muilenberg garden for the witness, in 1946, 'got too far south' and 'plowed it, or just throwed the dirt over.' Other witnesses testified Muilenberg, Sr. had dug out the path and always maintained it.

The Muilenbergs also erected and maintained a grape trellis east of their house. The south end of this trellis extended to the pathway in question. Plaintiff planted some fruit trees on lot 6. None of these were north of the depression. He testified they were in a line very near its center, 'maybe a little to the south.'

In 1926 the city of Pella paved the street in front of the lots and required adjacent property owners to connect with the water and sewer lines in the street. The pipes for the Muilenberg house were run underground from the street through the strip now in dispute, nearly along the line of the depression. About 1933 the Muilenbergs constructed a garage, part of which was upon the strip in question or in the alley immediately to the rear thereof.

Prior to 1912 the Muilenbergs had maintained a lawn on the west end of the property claimed by them. Members of their family testified they continued to maintain the lawn beside and in front of their house and south to the ditch or depression and that they also removed the snow from the sidewalk in front. Plaintiff Vander Zyl and his sons testified they (the Vander Zyls) mowed part of the lawn on the strip in question and cleared snow from the sidewalk. However, there was much uncertainty and self contradiction in the testimony of the Vander Zyls. A neighbor and his wife, testified Muilenberg, Sr. cared for this lawn. 'I only saw Vander Zyl and his son shovel snow just to that low place and I never saw them shoveling snow north of that trough or low place. I saw them mow grass. I saw the youngest boy. He done it twice after the stakes was set there, which was after the death of Mr. Muilenberg. Before that time I never saw any of them mow any of the lawn.'

Defendants are the heirs at law (sons and daughters) of Muilenberg, Sr., who died in May, 1946. This action was instituted the following month. Its activating cause is indicated by Plaintiff's amended and substituted petition filed July 2, 1946, which alleged the Muilenberg house encroached approximately 8 feet on lot 6, that when plaintiff purchased lot 6, (in 1912) and as a part of that transaction, he granted Muilenberg, Sr. oral permission that the house remain there during Muilenberg's life and Muilenberg ratified and acquiesced in said permit; that defendants were renovating and repairing the house and were excavating in lot 6 for a private sewer connection. Plaintiff prayed an injunction restraining such acts and that his title be quieted. A subsequent amended and substituted petition merely alleged plaintiff owned lot 6, acquired title by deed and by adverse possession and defendants made some claim adverse to his title. It asked that his title be quieted and for general equitable relief. Defendants pleaded adverse possession and acquiescence in the boundary claimed by them. The judgment of the district court quieted plaintiff's title to lot 6, ordered defendants to remove the parts of their house and garage thereon and restore the soil to its original condition, permitted defendants to remove their water pipes and sewer connections and restore the soil, and...