Bernard A. Nelson, Vicki Toomsen, Rodney Nelson, Ricky Nelson, and Sherri Brown v. Bobette Cross and Gidget Cross Trask ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-2006
Filed August 30, 2023
BERNARD A. NELSON, VICKI TOOMSEN, RODNEY NELSON, RICKY
NELSON, and SHERRI BROWN,
Plaintiffs-Appellees,
vs.
BOBETTE CROSS and GIDGET CROSS TRASK,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Humboldt County, Kurt L. Wilke,
Judge.
Defendants appeal the boundary determination in favor of the plaintiffs.
REVERSED AND REMANDED.
Brian L. Yung of Johnson, Mulholland, Cochrane, Cochrane, Yung & Engler,
PLC, Fort Dodge, for appellants.
George A. Cady III of Cady & Rosenberg Law Firm, PLC, Hampton, for
appellees.
Considered by Chicchelly, P.J., Buller, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
2
BLANE, Senior Judge.
In this boundary dispute, property owners Bobette Cross and Gidget Cross
Trask1 appeal the district court order finding adjoining property owners Bernard A.
Nelson, Vicki Toomsen, Rodney Nelson, Ricky Nelson, and Sherri Brown were
entitled to a boundary establishing their possession of a disputed 8.5-foot strip of
land between the properties.2 Finding the trial court misapplied the law as to
acquiescence and adverse possession, and the Nelsons failed in their proof as to
declaratory judgment, we reverse.
I. Factual background and proceedings.
The sliver of land in dispute is in Renwick, Iowa. In 1999, the Nelsons first
acquired a home on a parcel with 130 feet of frontage on the west side of Smith
Street. In 2002, the Nelsons purchased 46 feet to the south so they could build a
garage. In 2010, they purchased an additional 20 feet to the north of their property.
Their frontage on Smith Street then consisted of 196 feet. In 2013, the Nelsons
purchased a 100-foot lot to the north of their 196-foot lot, which contained a house.
On May 12, 2014 the Nelsons sold the 100-foot lot and house to the Crosses,
legally described in the warranty deed as:
A parcel of land in the Northeast Quarter of the Northwest
Quarter (NE ¼ NW ¼) in Section Thirty-six (36), Township Ninety-
three (93), Range Twenty-seven (27), West of the 5th P.M.,
Humboldt County, Iowa, described as follows: Commencing at a
1 Bobette owns a life estate in the real estate and Gidget has the remainder
interest.
2 Bernard and Anne Nelson purchased and sold all of the real estate as husband
and wife. On May 12, 2014, Bernard and Anne conveyed a remainder interest in
their property to their children Vicki Toomsen, Rodney Nelson, Ricky Nelson, and
Sherri Brown and retained a life estate. Anne Nelson died in 2018. For simplicity
we refer to them collectively as the Nelsons. And, except as otherwise noted, we
refer to Bobette and Gidget as the Crosses.
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point 296 feet North of the Southeast corner of the Northeast Quarter
of the Northwest Quarter, thence running West 165 feet, thence
South 100 feet, thence East 165 feet, thence North 100 feet to place
of beginning. Subject to easements and restrictions of record.[3]
The Nelsons and the Crosses got along as neighbors for a period. No fence, trees,
hedge row, or any other markings visibly delineated the property line.
In 2020, Bernard became irritated with Bobette’s dog coming onto his
property. To resolve the problem, Bobette decided to fence her yard and hired a
professional land surveyor (PLS), David L. Wilberding, to survey her lot.
Wilberding located the lot lines and installed pins. Bobette marked her south lot
line pin with a visible stake. Bernard disputed the lot line, and the Nelsons filed
their petition in equity alleging a boundary had been established by acquiescence
for more than ten years and seeking an order establishing the boundary 8.5 feet
north of the surveyed boundary. The Nelsons later amended their petition to also
allege a claim of adverse possession and for declaratory judgment, seeking the
same remedy.
At trial, the Nelsons called Susan Reed, an employee of the North Central
Title Company of Humboldt. Her work includes preparing new and continuing
existing abstracts, and performing lien searches. She identified the deeds filed
regarding the Nelsons’ purchases of the various properties as well as the original
city of Renwick plat map from 1882, and a survey filed in 1992. All of the Nelsons’
deeds as well as the Crosses’ deed contain legal descriptions that have their point
of beginning as “the Southeast corner of the Northeast Quarter of the Northwest
3 This is the identical legal description that is in the warranty deed that conveyed
the lot to the Nelsons.
4
Quarter.” Reed also reviewed the 2020 survey plat and “corner certificate” filed
by Wilberding, the PLS who performed the 2020 survey and plat. The corner
certificate states:
MONUMENT DESCRIPTION AND REMARKS:
SOUTHEAST CORNER NE ¼ - NW ¼. SEPT. 3, 1992 SURVEY
CALLS FOR A NAIL AT THIS CORNER. FOUND A 1” PK NAIL
WITH RED RIBBON 3” DEEP IN ACC ROAD. REMOVED NAIL
AND REPLACED WITH A 5/8” X 30” BLUE CAPPED REROD
FLUSH WITH ROAD SURFACE. CORNER MEASURES 1313.15
SOUTH FROM THE N ¼ CORNER WHICH MATCHES SEPT. 3,
1992 SURVEY.
Reed testified that quarter sections are usually 1320 feet square. Reed was of the
opinion that the 1992 survey misplaced the corner pin 8.5 feet further south than
as shown on the 1882 plat and so did the 2002 survey. Reed believed the 1992,
2002, and 2020 surveys did not start from a correct point of beginning. Reed did
not personally view the area in dispute, nor observe where the pins are located,
nor locate the southeast corner of the section, other than on the plat maps.
Bernard testified that after he acquired the forty-six-foot parcel in 2002 he
had it surveyed to identify the south lot line since he was going to build a garage.4
The 2002 survey shows the south lot line of the forty-six-foot parcel (Tract 2) is
187 feet north of the north edge of McCurry Street and is the boundary line
between Tracts 1 and 2. He personally observed the four corner pins for this lot.
Exhibit 3 is a photo that shows a black pole that Bernard identified as the southwest
corner of the forty-six-foot lot (the southwest corner of his properties), which is
identified on the 1992 survey plat.
4 This is also referred to as the Sidwell survey.
5
Bernard relied on the 1992 survey to establish his southern boundary when
he built his garage. He agrees that his north lot line is 196 feet north from the pin
that marks the south lot line of his property, which is the south lot line of his forty-
six-foot lot. After the sale to the Crosses, Bernard did not put in any stakes or pins
to show his lot line on the north. There were no survey corner pins for the twenty-
foot lot. Bernard claims that he mowed the 8.5-foot area and the Crosses mowed
up to that line on her side.
Bobette testified that when she purchased the property from the Nelsons in
2014, she did not know the specific location of her southern lot line and there were
no markers. She never discussed or agreed with Bernard where the lot line was
located. Bernard never identified or claimed the 8.5-foot area as his. The area
south of her house was mowed by both of them as there was no designation or
agreement on where the property line was located. Pursuant to the 2020 survey
and the pin placed for her north lot line, her propane tank is on her lot and the
neighbor to the north has his propane tank on his lot. If the lot line is moved south
8.5 feet as claimed by the Nelsons, then Bobette’s propane tank would be on the
north neighbor’s lot.
Following the bench trial, on November 18, 2022, the district court found for
the Nelsons as follows.
Here, Mr. Nelson purchased the land containing the disputed
8.5 strip of land in 2010. Mr. Nelson testified that he solely
maintained that property including the 8.5 foot strip until the 2020
survey when Ms. Cross began mowing over the same strip. This
court finds that Mr. Nelson should prevail in both arguments of
acquiescence and adverse possession. In addition, this court further
finds that Mr. Nelson had a right to rely on the Renwick city plat as
well as the 1992 survey in determining what portion of land he was
purchasing. So too did Ms. Cross. Ms. Cross purchased 100 feet of
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frontage and there has been no significant evidence that she has
received less.
It Is Ordered that the boundary line between the parties’
properties shall be established along a line 8.5 feet north of the 2020
surveyed boundary line. Court costs assessed to Defendants.
The Crosses appeal.
II. Standard of review.
We must first determine the appropriate standard of review. The Crosses
in their appeal brief acknowledge our review of an adverse-possession claim on
appeal is de novo. Sille v. Shaffer, 297 N.W.2d 379, 380 (Iowa 1980) (stating
“[a]dverse possession is established by a quiet title action, an equitable proceeding
under [Iowa Code] chapter 649”; our review of an adverse-possession claim on
appeal is de novo) As to acquiescence, the Crosses identify it “is a special action”
citing Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997) and Iowa Code §
650.4, and that the standard of review is for correction of errors at law. See Iowa
Code § 650.15. But the Crosses conclude by “request[ing] the appeal be reviewed
de novo because the case was tried as an equitable action” citing Albert v. Conger,
886 N.W.2d 877, 879–80 (Iowa Ct. App. 2016). As to the standard of review, the
Nelsons in their brief simply posit: “This is an equitable proceeding and with a de
novo standard of review.”
In Albert, a panel of our court applied a de novo standard of review to the
appeal involving claims of adverse possession and acquiescence, stating:
In any event, we will review the district court’s disposition of this claim
de novo for two reasons: (1) the parties appear to be in agreement
that the claims were equitable and tried in equity and (2) our ultimate
resolution of this issue is the same under a de novo review as it would
be if we were reviewing for correction of errors of law. See City of
Davenport v. Shewry Corp., 674 N.W.2d 79, 82 (Iowa 2004)
(choosing to review that case de novo for these reasons).
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886 N.W.2d at 879–80. Although technically not the correct standard for reviewing
the acquiescence claim, for the same reasons as set forth in Albert, we will apply
de novo review. We have a duty to examine the entire record and adjudicate anew
rights on the issues properly presented. We give weight to the fact findings of the
trial court, especially when considering the credibility of witnesses, but are not
bound by them. Iowa R. App. P. 6.904(3)(g).
III. Discussion.
A. Acquiescence and adverse possession.
Iowa Code section 650.14 (2022) provides: “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.” A boundary line between two properties can
be established by acquiescence if the party seeking to establish the boundary
proves by clear evidence there is a “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.” Egli v. Troy, 602 N.W.2d 329, 333
(Iowa 1999) (citation omitted). “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.” Id. (citation omitted).
The doctrine of adverse possession is based on the ten-year statute of
limitations for recovery of real property in Iowa Code section 614.1(5). See
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Carpenter v. Ruperto, 315 N.W.2d 782, 784 (Iowa 1982). “A party claiming title by
adverse possession must establish hostile, actual, open, exclusive and continuous
possession, under claim of right or color of title for at least ten years.” C.H. Moore
Tr. Est. v. City of Storm Lake, 423 N.W.2d 13, 15 (Iowa 1988). The doctrine of
adverse possession is strictly construed because the law presumes possession is
under regular title. Mitchell v. Daniels, 509 N.W.2d 497, 499 (Iowa Ct. App. 1993).
The burden is on the plaintiff to show all the elements of adverse possession by
clear and positive proof. Carpenter, 315 N.W.2d at 784.
The district court found the Nelsons entitled to prevail based on both
acquiescence and adverse possession. The court found that the Nelsons had
purchased the twenty-foot parcel in 2010 and maintained it until 2020 when the
Crosses obtained the survey and disputed it. The evidence does not support this.
Bernard and Anne bought the 100-foot property to their north in 2013. Bobette
and Gidget bought it from them in 2014. Bobette had the property surveyed in
2020 and thereafter considered the disputed 8.5 feet as part of her lot. There is
no evidence that predecessor owners from whom the Nelsons purchased ever
agreed to a lot line now claimed by the Nelsons. Bernard testified about where he
mowed since selling to the Crosses in 2014, but did not testify about mowing it
before 2014. See Huebner v. Kuberski, 387 N.W.2d 144, 147 (Iowa Ct. App. 1986)
(finding that mowing in a disputed area did not establish adverse possession.)
The Nelsons signed a warranty deed containing a legal description that, if
the survey is correct, conveyed the disputed 8.5 feet to the Crosses. The lot line
is not delineated by a fence, trees, or hedge row. Bernard testified there were no
pins, stakes, or other markers identifying the boundary between the properties.
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There is no basis to find that the Crosses acquiesced in a boundary as claimed by
the Nelsons. The law also requires adverse possession for a ten-year period. That
length of time simply has not existed between these parties as owners or
previously. The Nelsons failed to prove by clear and positive proof entitlement to
the disputed sliver of land.
B. Declaratory Judgment.
We then must turn to the Nelsons’ claim for a declaratory judgment raised
in their amended petition. The district court found: “In addition, this court further
finds that Mr. Nelson had a right to rely on the Renwick city plat as well as the 1992
survey in determining what portion of land he was purchasing. So too did Ms.
Cross.” The Nelsons argue
[t]he dispute between the parties arises out of a 2020 survey
obtained for Cross that had a different starting point than the previous
surveys. The point of beginning of the Cross survey started at
approximately 8.5 feet out into the middle of McCurry Street rather
than at the corner of the lot abutting McCurry Street.[5]
This argument is based on comparing the 1882 Renwick city plat and the 1992
survey with the 2020 survey and the corner certificate. The general rule is that
“lines of a senior plat survey will prevail over conflicting lines in a junior survey.”
Pearson v. City of Guttenberg, 245 N.W.2d 519, 527 (Iowa 1976). The critical
question is whether the 2020 survey correctly identified the point of beginning from
which to conduct the measurements. The section platted in 1882 for the city of
Renwick is for the quarter section south of the section that contains the Nelson
5 We observe that the reference to “8.5 feet out into the middle of McCurry Street”
is not supported by the evidence. Exhibit 11, the 1992 survey shows the reference
to 8.5 is the corner pin in Smith Street.
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and Cross properties. A review of the 1882 plat shows McCurry Street, the last
east-west street platted on the north edge of Renwick. Smith Street had not yet
been created and is not platted. The 1882 plat does not specify the number of feet
in the section north of McCurry Street where the properties in question are located.
The north boundary of the platted section is shown to be 187 feet north of McCurry
Street, which would be the south boundary of the section in question.
The 1992 survey platted Tracts 1 and 2. Tract 2 is the forty-six-foot lot later
purchased by the Nelsons in 2002. It shows “N.E. COR S.E. ¼ N.W. ¼ NAIL” at
a point in the street east of the north-south lot line with “8.5” shown on the survey
plat. The 1992 plat also states the distance from the northeast corner pin is
1313.15 feet from the “N. ¼ COR. SEC. 36 I PIN.” The lots along Smith Street
later purchased by the Nelsons and the Crosses are not specifically shown on the
1992 plat. The point of beginning (stated on the plat as “POB”) is at the southeast
corner of Tract 2, which is eventually the south boundary line of the Nelsons’ 196-
feet of frontage.
The 2002 survey requested by the Nelsons as to their forty-six-foot tract,
shows Smith Street that runs north-south. Tract 1, with 187 feet of frontage on
Smith Street, is directly north of McCurry Street.6 To the north is the forty-six-foot
lot (Tract 2) the Nelsons purchased in 2002.7 To the north is the 130-foot lot and
house the Nelsons purchased in 1999. Next to the north is the twenty-foot lot the
Nelsons purchased in 2010. Finally, to the north, is the 100-foot lot (and house)
the Nelsons purchased in 2013 and sold to the Crosses in 2014.
6 The plat shows the number 187, as well as 185.7.
7 The plat shows the number 46, as well as 45.7.
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From the 2020 Cross survey, the filed plat shows the surveyor located the
“government section” designated by the nail with a red ribbon consistent with the
1992 survey. This is represented by a triangle symbol.8 This is consistent with the
location of the point of beginning for the 1992 survey. Having determined the point
of beginning, that being the southeast corner of the section, surveyor Wilberding
measured 296 feet north, the frontage of the Nelson’s property, and then marked
the south lot line of the Cross lot. From there he measured north 100 feet on the
east line, west 165 feet, south on the west line 100 feet and then east to the starting
point 165 feet, installing his corner pins.
In deciding the declaratory judgment in favor of the Nelsons, the district
court indicated that the Nelsons and the Crosses had “a right to rely on the Renwick
city plat as well as the 1992 survey in determining what portion of land he was
purchasing.” Yet, Reed testified that it was the 1992 survey that misidentified the
southeast corner and incorrectly placed the pin. She based her opinion on the
assumption that the section should have 1320 feet of boundary. She also
acknowledged that there are exceptions to this distance.
From our review, we cannot credit Reed’s opinion that the survey pin
installed by the surveyor in 1992 and located by Wilberding in performing the 2020
survey had shifted or moved. We also find that Reed’s opinion as an abstractor,
and one who has not viewed the properties, is not more credible than the surveyor.
8 The plat, as in the corner certificate, indicates surveyor Wilberding replaced the
nail with a blue capped thirty-inch rerod driven into the street. The 2020 survey
plat also shows the distance of this pin is 1313.15 feet from the north section pin,
the same distance as shown on the 1992 survey plat. This measurement indicates
that the location of the pin had not moved.
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The Nelsons did not establish clear and positive proof of the lot line and ownership
of the disputed land. The lot line established by the 2020 survey is the most clear
and positive evidence of its location. For this reason, we reverse the judgment of
the district court and remand for entry of a decree consistent with this opinion.
REVERSED AND REMANDED.