In re the Detention of James Dake

• Court: Court of Appeals of Iowa
• Decided: October 23, 2019
• Docket: 18-1372
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-0190 Filed October 23, 2019

DAN BREWER and LINDA BREWER, Plaintiffs-Appellees,

vs.

SCOTT PLAGMAN and RANDY DEARDORFF, as Trustee of the Randy G. Deardorff 2009 Revocable Trust, dated July 2, 2009, Defendants-Appellants. ________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Bradley McCall,

Judge.

The defendants appeal the district court order granting the plaintiffs a

boundary by acquiescence. AFFIRMED.

Jeffrey N. Bump of Bump & Bump, LLP, Panora, for appellants.

Matt O’Hollearn of Brick Gentry, P.C., West Des Moines, for appellees.

Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ. 2

DOYLE, Judge.

In this appeal of a boundary dispute between neighboring landowners, we

must determine whether the district court erred in finding the plaintiffs established

a boundary by acquiescence. Because any error in admitting hearsay evidence

was not prejudicial and substantial evidence supports finding a boundary by

acquiescence, we affirm.

I. Background Facts and Proceedings.

Between 1873 and 1911, John Royer acquired three adjoining farms in

Dallas County. Over the next century, the farms passed down to Royer’s

descendants. Dan Brewer—Royer’s great grandson—inherited one farm in 1992,

and he and his wife, Linda, acquired the deed to a second farm in 2005. Their

property consists of the northernmost and southernmost farms that Royer originally

bought.

The remaining Royer farm lies between the parcels owned by the Brewers,

with the Brewers’ property bordering it on the north, east, and south. It remained

in the Royer family until 2000, when Merlin Royer’s estate sold it to Randy

Deardorff. In 2016, Deardorff sold the southern portion of his parcel to Scott

Plagman.

The subject of this litigation is the boundary running north and south on the

eastern side of Deardorff’s and Plagman’s properties and the western side of the

Brewers’ property. A fenced corridor the parties call a “jungle lane” also runs north

and south at the point where the parties’ properties meet. At the north end of the

jungle lane is a triangle-shaped area the parties call “the neck,” which connects

the north pasture to the south pasture. 3

Exhibit D shows the location of the jungle lane and neck in white. The Brewers’ property sits to its right. Deardorff’s property is on the top half to its left, and Plagman’s property is on the bottom half to its left.

The boundary dispute arose after Plagman obtained a survey of the land in

2016. Although the Brewers believed the jungle lane’s western fence line marked

the boundary between the farms, the survey revealed the boundary in the legal

description does not match the fence’s location. The surveyor determined the

boundary was “in between” the fences.

The Brewers filed an action to quiet title, alleging a boundary by

acquiescence along the western fence. Deardorff and Plagman counterclaimed, 4

alleging a boundary by acquiescence along the eastern fence. Following a trial,

the district court found the Brewers established a boundary by acquiescence along

the western fence line.

II. Hearsay.

We first address Deardorff’s and Plagman’s claim that the district court

permitted inadmissible hearsay at trial. Over their objection, Dan Brewer testified

about an oral land agreement his father and Merlin Royer made in 1977 or 1978.

According to Dan Brewer, Merlin Royer wanted to install a pond on his property

but could not do so without some of the pond entering the pasture owned by Dan

Brewer’s father. He testified that his father and Merlin Royer entered into a

“handshake deal to trade the land from the pond for the land of the neck.”

Iowa Rule of Evidence 5.803(20) permits hearsay evidence on “[a]

reputation in a community—arising before the controversy—concerning

boundaries of land in the community.” The term “community” means “the

neighborhood and those persons who had knowledge predating the litigation

concerning the boundary line.” Egli v. Troy, 602 N.W.2d 329, 334 (Iowa 1999). In

Egli, our supreme court acknowledged that boundaries “are usually proven by

reference to deeds and other documentary evidence” and that reputation evidence

“is multiple hearsay” or “glorified gossip” that “is not extraordinarily trustworthy.”

Id. (quoting David F. Binder, Hearsay Handbook § 21.03, at 358 (3d ed.1991)).

But the court found a “practical necessity” for reputation in cases involving

boundaries or customary usage of land because it is often the only evidence

available. Id. “Evidence in the form of statements by neighbors and the real estate

agent, as well as the fence maintenance arrangement under which the then- 5

owners acknowledged the fence as a boundary provides sufficient trustworthiness

to justify the application of this exception.” Id.

The defendants argue Dan Brewer’s testimony is unlike that in Egli, where

“neighbors and the real estate agent” testified about the reputation. Id. They claim

that Dan Brewer is a family member rather than a member of the community, citing

Joyce v. Barnes, No. 2007-G-2809, 2008 WL 2173860 at *4 (Ohio Ct. App. May

23, 2008) (holding testimony of family members connected to the property at issue

did not fall within the hearsay exception). In that case, however, the testimony of

those family members was “controverted by four longtime neighbors to the

properties concerned.” Joyce, 2008 WL 2173860 at *4. That is not the case here.

Even if the evidence does not fall within the hearsay exception, the district

court noted in overruling defendants’ objection the testimony was “not essential to

the conclusions reached by the court in his ruling.” In other words, its admission

was not prejudicial. See See Hawkins v. Grinnell Regional Med. Ctr., 929 N.W.2d

261, 265 (Iowa 2019) (noting that we presume the admission of hearsay evidence

is prejudicial unless the record shows otherwise). We find no reversible error.

III. Substantial Evidence.

Even disregarding the evidence about the “handshake deal,” we agree that

substantial evidence supports the district court’s finding that the Brewers

established a boundary by acquiescence. See Ollinger v. Bennett, 562 N.W.2d

167, 170 (Iowa 1997) (noting the district court’s judgment has the effect of a jury

verdict and we need only decide whether substantial evidence supports its

findings). “Acquiescence exists when both parties acknowledge and treat the line

as the boundary. When the acquiescence persists for ten years the line becomes 6

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).

Though the party seeking to establish a boundary other than a survey line must prove it by clear evidence, some overt act is not required in order to establish acquiescence. Moreover, the mere denial of knowledge of the existence of a fence or some other marker demarcating a boundary, or of a claim of ownership thereto will not defeat the claim of acquiescence to the boundary if the circumstances are such that the landowner should be required to take notice thereof.

Albert v. Conger, 886 N.W.2d 877, 880 (Iowa Ct. App. 2016) (cleaned up).

The evidence shows that the Royer family used the jungle lane and neck to

move cattle between properties for more than a hundred years before Deardorff

bought his land. Ruth Brewer, Dan Brewer’s ninety-seven-year-old mother,

testified that the purpose of the jungle lane was to move cattle between the

northernmost farm’s pasture and the barn located on the southernmost farm. She

testified that the lane has been in use throughout her lifetime and estimated it dates

to 1886. The Brewers and their son testified in kind, and physical evidence of

various fences used along the jungle lane over the years supports their testimony.

The evidence even shows that Deardorff acquiesced in Brewers’ use of the jungle

lane and neck during the sixteen years he owned it before selling part of his land

to Plagman. For these reasons, we affirm.

AFFIRMED.