Novotny v. Robbins

492 N.W.2d 216, 1992 Iowa App. LEXIS 258, 1992 WL 322262
CourtCourt of Appeals of Iowa
DecidedAugust 27, 1992
DocketNo. 91-1196
StatusPublished
Cited by1 cases

This text of 492 N.W.2d 216 (Novotny v. Robbins) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Novotny v. Robbins, 492 N.W.2d 216, 1992 Iowa App. LEXIS 258, 1992 WL 322262 (iowactapp 1992).

Opinion

SCHLEGEL, Judge.

The defendants, Ernest and Lois Robbins, appeal an action to quiet title. The district court ruled the plaintiff, Kenneth Novotny, proved a fence line was a boundary line and the Robbins had acquiesced to this boundary line for more than ten consecutive years. The Robbins contend the district court erred in finding Novotny achieved his burden of proving that the establishment of a fence and the circumstances surrounding its position and duration constituted a boundary line at the fence line and of demonstrating the Robbins’s conduct constituted acquiescence to the fence line as a boundary line.

Kenneth Novotny owns a 100-acre farm just off Winslow Road north of Marion, Iowa. Novotny’s parents owned the property from 1950 until 1964. When Novot-ny’s parents purchased the property, there was a north-south fence starting on the northwest corner running south on what was believed to be the west boundary of their farm. Novotny and his father replaced the fence sometime between 1953 and 1958. Novotny bought the farm in 1964 from his mother and took a deed to the property in November 1971.

In the mid 1960s Rolling Glen Acres, a residential development, was platted immediately to the west of Novotny’s property. Lots eight and nine of Rolling Glen Acres were located immediately adjacent to No-votny’s farm. The plat surveyor had earlier determined the boundary fence did not coincide precisely with the east line of the quarter section. The boundary fence, however, was not disturbed during the plat proceeding, and Novotny was not told the fence did not fall directly on the quarter section line. Novotny continued to farm the land east of the fence.

Ernest and Lois Robbins are the current owners of lot eight in Rolling Glen Acres. Bryon Wiscons and Sandra Miller are the current owners of lot nine.

In 1988 Wiscons threw some weeds, grass and other items from a garden over the fence. Novotny asked Wiscons to remove the dumpings. Wiscons said, “I think I own that property.” The parties did not reach an agreement, and Novotny eventually cleared the dumpings. Also, Robbins asked to dig a hole east of the fence which Novotny later filled.

In March of 1990 Wiscons and Robbins came to Novotny and told him they were going to move the fence to where it belongs. They took down the existing fence and put up a new fence.

On April 20, 1990, Novotny brought this action to quiet title to the strip of land immediately west of his property and on the east side of Rolling Glen acres. The disputed strip of property varied from 10.6 feet to 14.1 feet in width. Novotny claimed he acquired the strip of land either through adverse possession or through acquiescence.

During the trial, Novotny testified the fence which he and his father installed was in the same location as an older fence. The fence he helped to install in the 1950s remained in the same location, although not maintained after 1977. Novotny testified the fence was intended to be a western boundary as well as a barrier fence. No-votny stated he always believed either his father or he owned the land east of the fence. Novotny testified he farmed right up to the fence.

Novotny testified different owners, including prior owners of lots eight and nine, have told him the fence was not the boundary line, but no one did anything about moving the fence. Mr. Robbins testified they first learned in the fall of 1989 the fence was west of the deed line. Wiscons testified he talked to neighbors to the west in October of 1986 and learned the property [218]*218line was east of the old fence. All of the defendants paid taxes on the disputed strip. Novotny testified he lost approximately one-tenth of an acre of tillable ground and did not produce as much crop as a result of the new fence.

Based upon these facts, on June 14,1991, the district court concluded Novotny proved his claim to the strip of property by virtue of acquiescence. On June 18, 1991, Novotny filed a motion to amend or enlarge findings or conclusions pursuant to Iowa Rule of Civil Procedure 179(b). Novotny requested a more precise description of the real estate and an injunction requiring the defendants to remove the new fence and restore the original fence.

The Robbins filed a motion for new trial, asserting they had discovered material evidence. They also filed a resistance to the motion to amend.

On July 10, 1991, the district court overruled the Robbins’s motion for a new trial. The district court stated if Novotny had a better description for the property, he should submit it. The district court sustained Novotny’s request for an injunction requiring the defendants to remove the new fence, but overruled his request the old fence be restored.

On July 18, 1991, Novotny filed a supplement to his motion to amend which included a description of Novotny’s property. On August 2, 1991, the Robbins filed a notice of appeal. Wiscons and Miller have not filed a notice of appeal. On August 7, 1991, the district court sustained Novotny’s supplemental motion to amend.

The Robbins contend the district court erred in concluding Novotny proved the fence line constituted a boundary line to which the Robbins had acquiesced for more than ten consecutive years. Novotny responds the district court could have ruled in his favor under the theory of adverse possession which he argued at trial. The district court did not reach the issue of adverse possession as it found Novotny proved the boundary by acquiescence.

In an action pleaded and tried in equity, our review is de novo. Iowa R.App.P. 4; Schauland v. Schmaltz, 252 Iowa 426, 428, 107 N.W.2d 68, 70 (1961). The burden is upon the party claiming a boundary line, other than as disclosed by a surveyor, to establish the requisite mutual acquiescence by clear proof. Davis v. Hansen, 224 N.W.2d 4, 6 (Iowa 1974). Having carefully considered the record, we conclude the plaintiff has proved acquiescence in the fence as a boundary.

A suit to establish title by acquiescence is contemplated by statute. Iowa Code section 650.6 (1991) provides:

Either the plaintiff or defendant may, by proper plea, put in issue the fact that certain alleged boundaries or corners are the true ones, or that such have been recognized and acquiesced in by the parties or their grantors for a period of ten consecutive years, which issue may be tried ...

Iowa Code section 650.14 (1991) continues:

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.

Several cases have construed these code sections. In Sieck v. Anderson, 231 Iowa 490, 497, 1 N.W.2d 647, 650 (1942), the court stated:

Commencing with Miller v. Mills County, 111 Iowa 654, 82 N.W. 1038, this court has continuously held that where a line marking the boundary between adjoining owners is recognized as such for a period of ten years and has been acquiesced therein for that period, such line becomes the true boundary, notwithstanding it is not the line fixed by government survey. The cases recognizing and applying this rule are too numerous in this state to require citation.

Sieck,

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Bluebook (online)
492 N.W.2d 216, 1992 Iowa App. LEXIS 258, 1992 WL 322262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/novotny-v-robbins-iowactapp-1992.