Witting v. Schinstock-McConnell

IN THE COURT OF APPEALS OF IOWA
No. 22-1301
Filed August 9, 2023
SYLVIA WITTING,
Petitioner-Appellee,
vs.
RUTH A. SCHINSTOCK-McCONNELL and LAWRENCE W. McCONNELL,
Respondents-Appellants.
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Appeal from the Iowa District Court for Henry County, Joshua P. Schier,
Judge.
Ruth Schinstock-McConnell and Lawrence McConnell appeal the district
court’s finding of a boundary by acquiescence. AFFIRMED.
William R. Jahn, Jr. of Aspelmeier, Fisch, Power, Engberg & Helling, P.L.C.,
Burlington, for appellants.
Chad D. Brakhahn and Matthew L. Roth of Simmons Perrine Moyer
Bergman PLC, Cedar Rapids, for appellee.
Considered by Schumacher, P.J., and Chicchelly and Buller, JJ.
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BULLER, Judge.
This dispute arose over a contested boundary between two neighbors and
their plots of land: a farm lot and a house lot. The owners of the farm lot, Sylvia
and Leonard Witting,1 filed a petition for declaratory judgment seeking to establish
the contested boundary as the true boundary with the house lot, belonging to Ruth
Schinstock-McConnell and Lawrence McConnell (the Schinstock-McConnells).
The district court ruled for the Wittings, finding a boundary by acquiescence on the
Schinstock-McConnells’ property. The Schinstock-McConnells appeal, and we
affirm the district court’s ruling in light of our deferential standard of review.
I. Background Facts and Proceedings
The Wittings and Schinstock-McConnells are neighbors who own a farm lot
and a house lot, respectively, in Henry County. The Wittings bought the farm from
Leonard’s parents in 1959, which included the house lot that was enclosed by a
fence. In 1976, the Wittings separated the house lot from the farm, with the intent
to sell the house lot, and moved to West Point, Iowa. Before selling the house lot,
the Wittings developed a legal description of the lot, with Leonard measuring out
the lot’s boundaries.
After moving, the Wittings rented their farm to Howard Steffensmeier and
his family, who have been farming the land ever since. While the fence was still
standing, the Steffensmeiers tended to farm within a few feet of it.
The Wittings sold the house lot to Paul and Becky Hunold. At this time, the
fence still enclosed the lot, and the Hunolds treated the fence as the boundary
1 Leonard was initially a named petitioner, but he died before trial. For consistency,
we continue to refer to the owner of the farm lot as the Wittings.
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between their property and the farm. The southeastern portion of the fence fell
into disrepair during the Hunolds’ ownership, but most of the eastern portion
remained standing.
In 1983, the Hunolds sold the house lot to Lawrence and Susan Schinstock,
who owned the property until 1996, when they sold it to Lawrence’s brother
Kenneth. Lawrence, Susan, and Kenneth all treated the fence as the eastern
boundary of the house lot. However, sometime between 1998 and 2001, Kenneth
removed most of the eastern fence, leaving only a northeast corner post. After the
fence’s removal, the Steffensmeiers still tended to farm in line with the post,
although not always at the same bearing, and they farmed “a little bit” west of the
post some years.
In 2019, Kenneth sold the house lot to the Schinstock-McConnells. Before
the sale, Kenneth showed the property and remaining fencepost to the Schinstock-
McConnells, explaining that the post demarcated the boundary between the house
lot and the farm. In March 2020, the Schinstock-McConnells contacted surveyor
Rob Lance to determine the exact boundary lines of the house lot so they could
erect a new fence. Lance’s survey came up with an eastern property line thirty-
three feet west of the fencepost, and, once finished with the survey, Lance set up
markers to demarcate these new boundaries.
In response to these new markers, the Wittings petitioned for declaratory
judgment to find a boundary by acquiescence along the fencepost line. The matter
proceeded to trial in March 2022, where both sides presented several witnesses
speaking to different bearings of the fence, and Lance testified to his findings and
conclusions surrounding his survey. The district court ruled for the Wittings, finding
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a boundary by acquiescence at the fencepost line. The Schinstock-McConnells
appeal.
II. Standard of Review
The parties dispute the standard of review. The Schinstock-McConnells
urge de novo review, relying in part on the district court’s musing that the case
“sound[ed]” in equity. The Wittings counter by relying on old (but seemingly
controlling) supreme court precedent favoring review for correction of errors at law.
See McGovern v. Heery, 141 N.W. 435, 436 (Iowa 1913). We think the Wittings
have the better argument, considering our own published case law and the plain
language of the Iowa Code chapter authorizing our appellate review of boundary
disputes. See Iowa Code § 650.15 (2021) (providing for appeal heard “as in an
action by ordinary proceedings”); Albert v. Conger, 886 N.W.2d 877, 879 (Iowa Ct.
App. 2016) (“[O]ur appellate standard of review of an acquiescence claim is
statutorily defined as correction of errors at law.”). We therefore defer to findings
of fact by the trial court, which are binding on us if supported by substantial
evidence. Iowa R. App. P. 6.904(3)(a); Tewes v. Pine Lane Farms, Inc., 522
N.W.2d 801, 804 (Iowa 1994).
III. Discussion
A claim of boundary by acquiescence requires that both parties or their
predecessors “acknowledge and treat the line as the boundary” and “the
acquiescence persists for ten years.” Ollinger v. Bennett, 562 N.W.2d 167, 170
(Iowa 1997) (citation omitted); see also Iowa Code § 650.14. Acquiescence may
be inferred, but the parties must treat the fence as a boundary, not merely a barrier.
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Ollinger, 562 N.W.2d at 170. The burden of proof is “by clear evidence.” Tewes,
522 N.W.2d at 806.
A claimed boundary line must be definite and specific to support a
successful acquiescence claim:
The line acquiesced in must be known, definite, and certain,
or known and capable of ascertainment. The line must have certain
physical properties such as visibility, permanence, stability, and
definite location. The edge of a hayfield is not a sufficiently visible
line, but a hedge or a roadway are visible lines.
Heer v. Thola, 613 N.W.2d 658, 662 (Iowa 2000) (quoting 12 Am. Jur. 2d
Boundaries § 86 (1997)).
There is little debate that the prerequisites for a boundary by acquiescence
were satisfied between 1976 and 1998. During that time, the border was visible,
known, and definite, and the owners of both properties treated the fence as the
eastern boundary of the house lot for at least ten years. See Iowa Code § 650.14.
The poor state of the southeastern fence during this time means little, as the crop
line and remaining fence still demarcated a definite boundary. See Tewes, 522
N.W.2d at 808 (finding three posts and a line of crop residue sufficient to constitute
a boundary by acquiescence). The prerequisites for a boundary by acquiescence
were fulfilled in 1986. See Iowa Code § 650.14; Heer, 613 N.W.2d at 662.
Although these prerequisites were satisfied decades ago, a definite line
must “currently” exist to succeed on a boundary-by-acquiescence claim. See
Heer, 613 N.W.2d at 662 (holding that a finding of boundary by acquiescence must
include a currently definite line, “even if the prerequisites . . . have been in
existence for some time”). The Schinstock-McConnells dispute whether the
boundary is still known and definite, as the fence has been torn down, the
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Steffensmeiers have not always farmed in line with the fencepost, and witnesses
have given slightly differing testimony as to the fence’s bearing.
We find substantial evidence supports the district court’s finding of a
boundary by acquiescence, and we are bound by the facts found by the district
court in reaching that conclusion. After the fence was torn down, the
Steffensmeiers continued to generally farm within a few feet of the former fence
line, which was confirmed through several witnesses’ testimony. Even though
some witnesses testified to negligible differences in the fence’s bearing and the
Steffensmeiers did not always farm exactly up to the old fencepost, we find these
points do not detract from the continued existence of a sufficiently definite
boundary line. See Knutson v. Jenson, 440 N.W.2d 260, 262 (N.D. 1989) (finding
a crop line that varied a few feet each year in location sufficiently definite to form
a boundary by acquiescence); Tewes, 522 N.W.2d at 806 (finding slight variations
in a boundary line sufficient to form a boundary by acquiescence).
IV. Disposition
We find substantial evidence supports the findings of fact rendered by the
district court, reject the Schinstock-McConnells’ arguments on appeal, and affirm
the district court.
AFFIRMED.