IN THE COURT OF APPEALS OF IOWA
No. 21-0531 Filed August 3, 2022
TERRILL A. SAUNDERS and SHIRLEY A. SAUNDERS, Plaintiffs-Appellants/Cross-Appellees,
vs.
CONSTANCE J. SNYDER-JOHNSON and DIANE L. MILLER and their unknown heirs, devisees, grantees, assignees, successors in interest and the unknown claimants of the following described real estate situated in Jackson County, Iowa, legally described as, All that part of The Northeast Quarter of the Southeast Quarter of Section Eight (8) Township Eighty-Four (84) North Range Four (4) East of the Fifth Principal Meridian, lying South and West of the center of the public highway known as the Andrew- Spragueville Road, excepting the Northerly five (5) acres (more or less) thereof; And excluding Parcel A according to Plat of Survey dated November 16, 2001 and filed for record November 30, 2001, in Book 1-M, Page 66 of the Office of the Recorder of Jackson County, Iowa., Defendants-Appellees/Cross-Appellants. ________________________________________________________________
Appeal from the Iowa District Court for Jackson County, Tamra Roberts,
Judge.
Neighboring landowners appeal and cross-appeal a district court ruling on
their competing claims relating to real property. AFFIRMED.
David M. Pillers of Pillers & Richmond, DeWitt, for appellants/cross-
appellees.
Susan M. Hess of Hammer Law Firm, PLC, Dubuque, for appellees/cross-
appellants.
Heard by Bower, C.J., and Schumacher and Ahlers, JJ. 2
SCHUMACHER, Judge.
Terrill and Shirley Saunders (collectively Saunders) appeal a district court
ruling that denied a claim of boundary by acquiescence in which they contend
Constance Snyder-Johnson (Connie) and her daughter, Diane Miller, ceded land
up to a fence line on Connie’s land. Connie cross-appeals, claiming the district
court erroneously found she had not established an easement by prescription on
Saunders’ land. The district court’s determination that Saunders failed to establish
a boundary by acquiescence and that Connie failed to establish an easement by
prescription is supported by substantial evidence. Accordingly, we affirm.
I. Background Facts & Proceedings
Terrill and Connie are first cousins. Their grandparents previously owned
the land in dispute.1 Connie purchased roughly twenty acres from her grandfather
in 1972. Sometime that same year, Terrill was instructed by his grandfather to
replace a fence on Connie’s property that their grandfather had used to keep
livestock off the land suitable for crops. According to a survey done in 2019, the
fence is anywhere from 429 to 211 feet north of the southern boundary of Connie’s
property. The distance varies as the fence meanders along the property. The land
between the fence and Connie’s property line, which is predominately cropland but
bounded by timber on its western edge, is the land subject to this dispute.2 The
fence does not run across the whole property; it shifts north back into Connie’s
1 This farm has been in the family since early 1921, when the parties’ great grandfather, William McCutcheon, was deeded eighty acres, more or less, for consideration of $11,200.00. After his death twelve years later, the land was deeded to Harry McCutcheon, one of William’s nine children, who later deeded the property to his grandson, Terrill. 2 The disputed land consists of approximately 7.9 acres. 3
property on either end. Both parties agree the fence was intended to keep
livestock—particularly horses—off cropland to the south of the fence. Terrill
asserts the fence is a boundary fence separating Connie and his grandfather’s
land. The fence has remained in the same spot since 1972.
After purchasing her property, Connie continued to let her grandfather farm
the cropland up to the fence. Terrill assisted his grandfather with the farming.
Terrill obtained the land to the south of Connie’s property in 1977 on contract from
his grandparents and continued to farm the land, including the disputed property.3
Terrill and Connie’s grandfather passed away in 1987. Terrill retired from farming
sometime in the mid-1980s and rented out the land.
Connie bought another eighty acres in 1992, located to the west of both her
property and Terrill’s property. The deed for this land purchase included a
provision for a right of way over Terrill’s property “to the public road for a means of
ingress and egress to the lands” provided to Connie.4 The Saunders, however,
were not signatories to the deed. The land that connects Connie’s original twenty
acres with the western eighty acres is hilly and forested. There are several deer
trails and all-terrain vehicle (ATV) trails, but Connie cannot move heavy equipment
to her land in the southern half of the property.
Connie has used a path across Terrill’s land that connects to the public road
on the east side of her property and Terrill’s property to access the field in her
western property. She claims she has a right to such path because of the deed
she obtained in 1992. She also claims she has to use the path because of the
3 Terrill received the deed to the property south of Connie’s land in 1980. 4 The grantors of this eighty acres were Terrill’s parents. 4
impracticality of traveling through her own property. Connie requested that Terrill
grant an easement across his property, which he rejected. Despite the rejection
of the requested easement, Connie testified that she continued to cross Terrill’s
land until around 2016, when Terrill fenced off the trail. While Connie previously
rented out the tillable land on her western eighty acres, she has not done so since
the mid-1990s. Since then, the land has been in the Conservation Reserve
Program (CRP).5 Connie eventually sold about two of her original twenty acres
abutting the fence line on its north side to her daughter, Diane.
Connie and Terrill’s use of the disputed land has been consistent for the
past several decades. Connie and Diane’s families ride horses, ATVs,
snowmobiles, and minibikes on the property. They have also used the property to
cut and collect firewood.6 Their land to the north of the fence has consistently
contained horses, which are prevented from grazing in the crop field to the south
by the fence. Connie pays the property taxes for the disputed property. Terrill, in
contrast, has rented the disputed property to several different individuals. The
tenants farmed hay, oats, and corn. Terrill has collected the rent revenue and
included it on his tax returns. He included the disputed land in an appraisal done
on his property. He also placed the property in the CRP from 2003 to 2013. Both
parties contend they performed maintenance tasks on the property—Terrill claims
to have mowed and cleaned out the fence line, while Connie also claims to have
5 The Conservation Reserve Program is a program administered by the United States Department of Agriculture (USDA) that pays property owners to leave farmland idle to conserve wildlife and natural resources. It requires the owner to remove certain invasive species and can require the owner to perform certain maintenance tasks like mowing or burning the field. 6 Diane testified that she used the property pursuant to Connie’s permission. 5
mowed the land and picked up fallen branches. Neither party requested the other
to cease their use of the land until the current dispute began.
The instant controversy began in 2019 when Connie elected to place certain
portions of her land in CRP. During her enrollment in the program, Connie was
informed that some of her land was already enrolled in the program by Terrill.
Connie had the land surveyed in 2019 and erected a boundary fence along the
legal boundary. As a result, Terrill filed a petition in July 2019, alleging trespass
by Connie and sought to quiet title to the disputed land. Terrill also alleged a
boundary by acquiescence along the fence line and claimed to have adversely
possessed the disputed property. Connie filed an answer broadly denying Terrill’s
claims and counter-claimed alleging an easement by prescription over the trail that
connects Connie’s eighty acres to the public road.
A trial was held in early February 2021. The district court denied all of
Terrill’s claims. In particular, the court found that the parties had not mutually
recognized the fence as a boundary and that the fence was not definite enough to
constitute a boundary. The court also found that Connie lacked sufficient notice of
Terrill’s claim to the property to warrant a duty to prohibit Terrill’s use. The court
denied Connie’s counter-claim, finding the easement was unnecessary and that
Connie did not meet her burden of proving her use was hostile and open for ten
years. Both parties appeal.7
7Terrill appeals only the portion of the district court’s ruling denying his claim of boundary by acquiescence. 6
II. Standard of Review
Terrill brought his boundary-by-acquiescence claim under Iowa Code
chapter 650 (2019). An appeal from a chapter 650 action is heard as “an action
by ordinary proceedings.” Iowa Code § 650.15. Thus, our review is for errors of
law.8 Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997). “The district court’s
judgment has the effect of a jury verdict; thus, we are bound by the district court’s
findings of fact if supported by substantial evidence.” Id. “[E]vidence is substantial
if ‘reasonable minds would accept the evidence as adequate to reach the same
findings.’” Lund v. Siegert, No. 20-1525, 2022 WL 1100319, at *2 (Iowa Ct. App.
Apr. 13, 2022) (alteration in original) (citation omitted).
The parties do not address what the appropriate standard of review is for
Connie’s claim of an easement by prescription.
Whether the district court tried a proceeding in equity or at law is determinative of our scope of review on appeal. If the district court tried the case at law, our review is for correction of errors of law. If tried in equity, our review is de novo. If there is uncertainty about the nature of a case, an often-used litmus test is whether the trial court ruled on evidentiary objections. When a trial court does rule on objections, it is normally the hallmark of a law trial, not an equitable proceeding.
Woodroffe v. Woodroffe, No. 13-2034, 2015 WL 1546365, at *2 (Iowa Ct. App.
Apr. 8, 2015) (citations omitted). Here, the district court ruled on objections at trial.
8 The parties disagree as to the appropriate standard of review. We recognize some cases analyzing boundary-by-acquiescence claims have used a de novo review. See, e.g., Albert v. Conger, 866 N.W.2d 877, 879–80 (Iowa Ct. App. 2016); Paseka v. Weaver Farms Ltd. Liab. Co., No. 03-0417, 2004 WL 573788, at *2 (Iowa Ct. App. Mar. 24, 2004). However, our court has only used a de novo standard when the parties agreed it was the proper standard, see Conger, 866 N.W.2d at 880, or when the underlying action did not follow the statutory formalities of chapter 650. See Paseka, 2004 WL 573788, at *2. Neither is applicable here. 7
Thus, the proper review is for correction of errors at law. Id. The court’s findings
of fact are binding on us if supported by substantial evidence. See Iowa R. App.
P. 6.904(3)(a).
III. Discussion
Terrill contends the district court incorrectly rejected his claim that the fence
was the border of his land based on the doctrine of boundary by acquiescence.
Connie counter-claims, claiming the district court should have found she had an
easement by prescription connecting her western eighty acres with the public road.
A. Boundary by Acquiescence
Iowa Code section 650.14 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.” Our supreme court has described the doctrine
as follows:
It is 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.
Ollinger, 562 N.W.2d at 170 (quoting Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa
1980)).
Both landowners “must have knowledge of and consented to the asserted
property line as the boundary line.” Tewes v. Pine Lane Farms, Inc., 522 N.W.2d
801, 806 (Iowa 1994). However, “[a]cquiescence need not be specifically proven; 8
it may be inferred by the silence or inaction of one party who knows of the boundary
line claimed by the other and fails to take steps to dispute it for a ten-year period.”
Id.; accord Conger, 886 N.W.2d at 881–82 (citation omitted) (“It is sufficient
knowledge if both parties are aware of the fence or other line and of the fact that
both adjoining landowners are, for the required period, treating it as a boundary”).
Importantly, “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.’” Conger, 886 N.W.2d at 881
(quoting Tewes, 522 N.W.2d at 807).
Our courts have also recognized that the proposed boundary line “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.” Heer v. Thola, 613 N.W.2d 658, 662 (Iowa 2000) (quoting 12
Am. Jur. 2d Boundaries § 86, at 487 (1997)). Additionally, the parties must
acquiesce to the fence as a boundary, rather than a barrier with some other
purpose. Ollinger, 562 N.W.2d at 170 (quoting Brown v. McDaniel, 156 N.W.2d
349, 352 (Iowa 1968)); see also Heer, 613 N.W.2d at 662 (noting that even where
the fence is a definite boundary “[A] fact question might still exist as to whether the
parties intended that a fence or other marker was to be treated as a boundary
rather than for some other purpose such as a barrier for livestock”). The party
seeking to establish the new boundary must prove acquiescence by clear
evidence. Tewes, 522 N.W.2d at 807. Our analysis “requires an inquiry into the
factual circumstances of each case.” Ollinger, 562 N.W.2d at 171. 9
The district court found Terrill had not established a boundary by
acquiescence. In particular, the court found there was not mutual recognition of
the fence as a boundary, the fence line did not constitute a definite line, and Connie
lacked the notice necessary to establish inferred knowledge of Terrill’s purported
boundary.
Initially, we disagree with the district court that the irregular shape and
construction of the fence preclude its use as a boundary. Our courts have held
that a “wavy” boundary “does not render the demarcation indefinite, where the
landowners recognized the demarcation as the boundary.” Lucas v. Forrester, No.
05-1847, 2007 WL 601567, at *2 (Iowa Ct. App. Feb. 28, 2007); accord Tewes,
522 N.W.2d at 806 (although “the boundary line did not form a perfectly straight
line . . . the three posts and crop residue formed the basis of a sufficiently definite
boundary line”). The somewhat meandering course of the fence between Connie
and Terrill’s property does not preclude its use as a boundary. We also question
whether the material make-up of a fence line that by all accounts has been in the
same condition for nearly fifty years is relevant. The district court noted how
Terrill’s exhibits each showed slightly different boundaries for the contested field.
That said, those differences were largely limited to the southern portion of the field,
which would not make up the boundary Terrill claims. And it was uncontested at
trial that the fence line was visible and consistent over the past fifty years.
But the fence does not run the course of the entire property. Instead, it turns
north on its western and eastern edges, and continues up into Connie’s property.
Such a shape aligns with Connie’s argument that the fence was intended to contain
livestock to a certain area—the looping shape would fully contain the horses. None 10
of the parties could identify where the property line would lay on either end of the
fence. Thus, the fence is not definite enough to form a boundary for the properties.
Terrill also failed to establish both parties acknowledged and acquiesced to
the fence serving as a boundary. Connie and her family did not expressly
acquiesce, unanimously testifying that they believed the fence only served to
contain their livestock.9 Connie also did not acquiesce via notice and silence.
Connie testified that she permitted Terrill to farm the land in question based on
long-standing family practice. Thus, his practice of renting out the farm, performing
maintenance, and placing it in CRP would be insufficient to put Connie on notice
of a new boundary. While this court has previously held that use was not
permissive when the legal owner never authorized the moving party’s use, see
Lund, 2022 WL 1100319, at *3, we must examine each case in light of its unique
facts. Ollinger, 562 N.W.2d at 171. The family’s unique practices, including
Connie permitting her grandfather to keep farming on her land, point to such use
being permissive. And Terrill’s reporting the rental income on his tax returns and
using the land in an appraisal could not put Connie on notice because she would
have no reason to know of either.
Moreover, Connie and her family continued to use the land themselves.
Testimony at trial was consistent concerning Connie and her family’s use of the
land to ride horses, motorbikes, and snowmobiles, as well as to collect firewood.
Diane and her fiancé conveyed that their use was pursuant to Connie’s permission,
9 To the extent both Connie and Terrill offered other witnesses’ testifying to where they believed the boundary was, such is not dispositive to this case. See Tewes, 522 N.W.2d at 807 (“Our decisions and other authorities demonstrate that the landowner [themselves] must satisfy the knowledge requirement.”). 11
suggesting Connie retained the belief that she owned the land. Connie also paid
property taxes on the property, further suggesting she believed she owned the
property.
We recognize that some evidence suggests Connie acquiesced to the
boundary. She put other parts of her property into CRP in the past, but the land in
question was put into CRP by Terrill.10 Connie knew the land was being farmed,
but did not demand rent from Terrill or the tenant farmers.11 She also testified that
she assumed Terrill had placed the land into CRP when it lay uncultivated,
suggesting some level of control over the property by Terrill. And there was some
contradictory testimony about who maintained the land. However, “to the extent
the testimony diverged, it was the district court’s prerogative to resolve the
inconsistencies.” See Lund, 2022 WL 1100319, at *3 (quoting Jaeger v.
Manemann, No. 19-1022, 2020 WL 1888768, at *2 (Iowa Ct. App. Apr. 15, 2020)).
Given our substantial-evidence review, we affirm the district court concerning the
boundary by acquiescence.
B. Easement by Prescription
Connie claims the district court incorrectly found she had not established an
easement by prescription over Terrill’s property. “Under Iowa law, an easement
by prescription is created when a person uses another’s land under a claim of right
or color of title, openly, notoriously, continuously, and hostilely for ten years or
more.” Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001); accord Iowa Code
10 The USDA acknowledged an error in the failure to include the disputed property in Connie’s CRP. 11 One of the tenants also rented property owned by Connie. 12
§ 564.1. The concept is similar to adverse possession, and we apply adverse
possession principles to establish an easement. Collins Tr. v. Allamakee Cnty. Bd.
of Supervisors., 599 N.W.2d 460, 463—64 (Iowa 1999). But whereas adverse
possession is concerned with acquisition of title to property, an easement by
prescription concerns the use of property. Id. at 464. The party seeking an
easement “must also show they claimed an easement as of right, and this must be
established by evidence distinct from and independent of their use.” Kaster, 637
N.W.2d at 178; accord Iowa Code § 564.1. “The facts relied upon to establish a
prescriptive easement ‘must be strictly proven. They cannot be presumed.’”
Woodroffe, 2015 WL 1546365, at *4 (quoting Simonsen v. Todd, 154 N.W.2d 730,
736 (Iowa 1967)).
Connie failed to establish her use of the path leading from the public road
to her property west of Terrill’s land was hostile. “Hostility of possession does not
imply ill will, but only an assertion of ownership by declarations or acts showing a
claim of exclusive right to the land.” Id. Connie testified that she asked Terrill for
an easement. He denied her request. However, Connie clarified that “[Terrill] gave
me permission to go through there.”12 “[P]ermissive use of land is not considered
adverse.” Collins Tr., 599 N.W.2d at 464 n.1. Terrill permitting Connie to use the
pathway shows her use was not hostile. Thus, she fails to establish an easement
by prescription.
12 Terrill’s attorney asked the following clarifying question: Q. Okay. He gave you permission to go through there but he never granted you an easement, correct? A. As I understand it, yes. 13
Connie also failed to establish a claim of right.13 “Evidence tending to show
hostility and claim of right to satisfy the requirements of a prescriptive easement is
of a similar nature.” Kaster, 637 N.W.2d at 178. “A party claiming an easement
by prescription must prove, independent of use, the easement was claimed as a
matter of right.” Collins Tr., 599 N.W.2d at 464; accord Iowa Code § 564.1. A
common example of evidence indicative of a claim of right is maintenance or
construction of the land claimed. See Kaster, 637 N.W.2d at 179 (citing Lynch v.
Lynch, 34 N.W.2d 485, 490 (1948)).
Connie appears to allege a claim of right based on the need for the
easement to access the field on the western side of her property. However, we
agree with the district court that an easement is unnecessary. Connie testified that
she can access the western eighty acres from the twenty acres she lives on via
deer trails and ATV trails. While the terrain is hilly and wooded, she testified that
she was able to move a side-by-side to the field. Moreover, the field she seeks
access to has been in CRP since the mid-1990s. She testified that she must burn
the field rather than mowing it, but such maintenance is permitted under CRP.
Given the limited use of the field, Connie has no reason to bring heavy equipment
through Terrill’s property. Also, Connie owns property contiguous to the property
13 To the extent Connie claims a color of title based on the 1992 deed purporting to include an easement over Terrill’s land, such is unpreserved for our review. “It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Connie’s answer and counter-claim asserted only a claim of right, not color of title. Additionally, the district court expressly declined to consider an allegation of color of title, noting, “the defendant’s did not allege a color of title claim in their counterclaim.” 14
in question. Thus, Connie failed to demonstrate a claim of right, and has not
established an easement by prescription.
AFFIRMED.