Saunders v. Snyder-Johnson

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.