Russell T. Mapes and Debra S. Kuehl-Mapes v. U.S. Bank National Association, N.D., and Jerome R. Eledge Sr. and Linda P. Eledge ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1770
Filed October 28, 2015
RUSSELL T. MAPES and
DEBRA S. KUEHL-MAPES,
Plaintiffs-Appellees,
vs.
U.S. BANK NATIONAL
ASSOCIATION, N.D.,
Defendant,
and
JEROME R. ELEDGE SR.
And LINDA P. ELEDGE,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, J. C. Irvin,
Judge.
The defendants appeal the establishment of a boundary by acquiescence.
AFFIRMED.
Aimee L. Lowe of Telpner, Peterson, Smith, Ruesch, Thomas & Simpson,
L.L.P., Council Bluffs, for appellant.
Michael J. Winter of The Law Office of Michael J. Winter, Council Bluffs,
for appellee.
Considered by Vogel, P.J., Tabor, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, Senior Judge.
Jerome Eledge Sr. and Linda Eledge appeal from the order establishing a
boundary by acquiescence between their property and property owned by
Russell Mapes and Debra Kuehl-Mapes. They contend the court erred in finding
the existence of a boundary by acquiescence and in denying their counterclaim
to have the Mapeses’ encroaching swimming pool removed. Because the
Mapeses have proved the existence of a boundary by acquiesce, we affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
The Mapeses and the Eledges own adjoining property in Council Bluffs.
The Mapeses purchased their property in October 2000 and at some point
thereafter placed an above-ground swimming pool on what they believed to be
their property. After the Eledges purchased the adjoining property in May 2011,
a land survey revealed the boundary line between the properties was six feet
from where the Mapeses had believed it to be, and their swimming pool
encroached 3.2 feet into the Eledges’ property.
The Mapeses filed a petition seeking to quiet title in the six feet of property
they had believed to be their property under an acquiescence theory. The
Eledges answered and counterclaimed to seek removal of the swimming pool
from their property.
The matter went to trial in September 2014. Russell Mapes testified a
split-rail fence ran between the properties when he purchased his home in 2000.
His realtor informed him the fence, which ran in a straight line between a red post
and a phone box, was on the property line. Before the Eledges moved in next
door, his neighbors observed the same property line, maintaining the land on
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their side of the fence. After the property was surveyed, Jerome Eledge removed
the fence.
Frank Wise, who owned the Eledges’ property from 1978 until 2002,
testified regarding his understanding of the location of the property line during the
time he resided on the property. Wise testified, “There was a phone box sitting
up on the street, and I used that—that, and then there was a metal post down to
the west. And it was a straight line down from that was what I perceived as the
property line.” Wise testified he found a stake in the ground marking the
northeast corner of his property and measured the distance from that stake 112.5
feet south to find the southwest corner of the property, which matched the
location of the phone box, the only landmark in that area. Wise further testified
he believed the western border of his property was also marked by a red metal
post with a white tip, which had been placed in the ground to the north by an
unknown person before he had purchased the property. The pole was never
moved and remained in the ground when Wise sold the property. Wise testified
both he and the owners of the adjoining property recognized the same property
line, and both parties maintained the property on their side of that line. The split-
rail fence was eventually placed along a portion of the property line.
Frank Pechacek Jr. lives across the street from the Mapeses and the
Eledges. The two lots now owned by the parties were vacant when Pechacek
moved into his residence, and he has observed the practices of the various
property owners of each parcel of land over the years. He testified there is a
telephone box on his property he and his neighbors always treated as the
property line between their properties. He further testified the telephone box
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located directly across the street between the properties at issue is what the
owners of those properties always treated as the property line. Pechacek
recalled a split-rail fence erected between the lots “basically lined up with the
telephone box.” He further testified, “Each property owner would mow to the line
that would consist of the telephone box and the corner post.”
Julie Eggerling and her husband at the time, Thomas Muhlbauer,
purchased the property now owned by the Eledges from Wise in 2003. She
testified she understood the property line to run between a phone box and a red
metal post. She and her husband put up a partial privacy fence along that line.
They mowed up to that line but not beyond it.
Michael Ryder was called as a witness for the Eledges. He and his wife
bought the property the Mapeses now own in 1978 and sold it in 1997. Ryder
recalled a survey was conducted when he purchased the home. His recollection
of where the survey stakes were placed is consistent with where the survey
conducted when the Eledges purchased the property revealed the boundaries to
be. It is also consistent with his testimony he understood the property line to run
along the center of a slope constructed between the homes for water drainage
purposes. Ryder testified he did not recall a phone box or red post on the
property when he lived there. He also testified Frank Wise was his neighbor the
entire time he lived on the property and they never had a property dispute.
In an order filed September 23, 2014, the district court specifically found
Wise’s testimony “to be consistent with other evidence and to be credible.” After
considering his testimony and the other evidence in the record, the court
concluded the Mapeses established a boundary by acquiescence. It determined
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the boundary line between the parties’ property to be “a straight line marked by
the phone box . . . to a red post.” After the Eledges filed a motion to enlarge, the
court corrected an error contained regarding the location of the red post but
otherwise overruled the motion.
II. SCOPE OF REVIEW.
Ordinarily our review of an action brought under Iowa Code chapter 650
(2013) is for correction of errors at law. Ollinger v. Bennett, 562 N.W.2d 167, 170
(Iowa 1997) (stating an action chapter 650 to establish a boundary is heard on
appeal as an ordinary action and reviewed for errors at law). However, the
parties agree this case was tried in equity and our review is de novo. See Iowa
R. App. P. 6.907. Although we are not bound by the district court’s fact findings,
we give them weight and are especially deferential to assessments of witness
credibility. Perkins v. Madison Cnty. Livestock & Fair Ass’n, 613 N.W.2d 264,
267 (Iowa 2000).
III. ANALYSIS.
The Eledges challenge the sufficiency of the evidence establishing a
boundary by acquiescence. Specifically, they challenge the definiteness of the
claimed boundary. They also contend constructive or actual notice of an
acquiesced boundary must be given to a bona fide purchaser.
Iowa Code section 650.14 states: “If it is found that the boundaries and
corners alleged to have been recognized and acquiesced in for ten years have
been so recognized and acquiesced in, such recognized boundaries and corners
shall be permanently established.” “Acquiescence” is defined as
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the mutual recognition by two adjoining landowners for ten years or
more that a line, definitely marked by fence or in some manner, is
the dividing line between them. Acquiescence exists when both
parties acknowledge and treat the line as the boundary. When the
acquiescence persists for ten years the line becomes the true
boundary even though a survey may show otherwise and even
though neither party intended to claim more than called for by his
deed.
Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980). The Mapeses have the
burden of establishing acquiescence by clear evidence. See Tewes v. Pine Lane
Farms, Inc., 522 N.W.2d 801, 806 (Iowa 1994).
The Eledges first argue there lacks clear evidence concerning the location
of the claimed boundary because it is not definitely marked. They claim the
boundary found by the district court “is not predicated upon a line or fence having
physical properties such as visibility, permanence, stability, and definite location.”
They note no fence or landscaping has marked the boundary for the requisite
ten-year period.
In order to establish a boundary by acquiescence, the boundary must be
definitely marked “in some manner.” Sille, 297 N.W.2d at 381; see also Mensch
v. Netty, 408 N.W.2d 383, 386 (Iowa 1987) (“We may not resort to conjecture
and speculation in locating the boundary lines.”). For instance, our supreme
court held tire marks were insufficient to establish a boundary line where “[t]he
photographic evidence admitted at trial indicated that there are no clearly defined
tire marks that have served as a basis for a boundary line for the past ten years.”
Mensch, 408 N.W.2d at 386. However, “a fence or some other consistently solid
barrier” is not necessary to establish the boundary line. Tewes, 522 N.W.2d at
806. Marked posts through which a boundary line runs can provide “the basis of
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a sufficiently definite boundary line” where the posts “represent a distinct division
of the parties’ property.” Id.
The Mapeses have established the boundary by clear evidence. There
are two definite landmarks on which the property owners had acknowledged as
the basis of determining the property line over the years. The phone box and the
red post were in place and unchanged for more than ten years, and the evidence
shows the property owners recognized and treated these landmarks as
establishing the property line.
The Eledges also allege the claim of a boundary by acquiescence “is void
against public policy for failure to give notice to a bona fide purchaser for value of
a claim against title.” We have already determined the boundary was clearly
established by the phone box and red post located between the properties. This
boundary had been observed by the prior owners of the property for more than
ten years before the Eledges purchased it. “‘It is well settled that purchasers of
property cannot question a boundary line acquiesced in by predecessors in title
for more than ten years.’” Dart v. Thompson, 154 N.W.2d 82, 84 (Iowa 1967)
(quoting Boyle v. D-X Sunray Oil Co., 191 F. Supp. 263, 271-272 (N.D. Iowa
1961)).
Because the evidence supports the Mapeses’ claim of a boundary by
acquiescence, we affirm. We need not address the Eledges’ claim regarding
encroachment by the Mapeses’ swimming pool.
AFFIRMED.