David Baculis and Karen Baculis v. Diana B. Baculis ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1873
Filed August 31, 2016
DAVID BACULIS and KAREN BACULIS,
Plaintiffs-Appellants,
vs.
DIANA B. BACULIS,
Defendant-Appellee.
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Appeal from the Iowa District Court for Johnson County, Paul D. Miller,
Judge.
Property owners appeal the district court’s decision denying their petition
to establish a boundary line by acquiescence. AFFIRMED.
Robert S. Hatala and Chad D. Brakhahn of Simmons Perrine Moyer
Bergman PLC, Cedar Rapids, for appellants.
Desirée A. Kilburg of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for
appellee.
Considered by Mullins, P.J., Bower, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, Senior Judge.
This case involves a boundary line dispute between two adjacent property
owners in Johnson County. David and Karen Baculis filed a petition seeking to
establish the boundaries of the property under Iowa Code chapter 650 (2013)
and to quiet title under Iowa Code chapter 649 against Diana Baculis. David and
Karen assert Diana acquiesced to the location of the boundary line. The district
court found in favor of Diana, dismissing David and Karen’s petition. David and
Karen appeal claiming substantial evidence does not support the district court’s
decision.
The parties agree the standard of review for this appeal is for correction of
errors at law. See Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997). While
there is some dispute about the proper standard of review for boundary-
acquiescence cases, see Albert v. Conger, No. 15-1638, 2016 WL 4384102, at
*1 & n.2 (Iowa Ct. App. Aug. 17, 2016), in light of the fact the parties agree
regarding the standard of review and the fact this case was tried at the district
court at law, we will review this case for the correction of errors at law. See
Johnson v. Kaster, 637 N.W.2d 174, 177 (Iowa 2001) (“Generally, we will hear a
case on appeal in the same manner in which it was tried in the district court.”).
Under this standard of review, “[t]he trial court’s findings carry the force of a
special verdict and are binding on us if supported by substantial evidence.”
Johnson, 637 N.W.2d at 177.
A boundary line between two properties can be established by
acquiescence if the party seeking to establish the boundary proves by clear
evidence there is a “mutual recognition by two adjoining landowners for ten years
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or more that a line, definitely marked by fence or in some manner, is the dividing
line between them.” Egli v. Troy, 602 N.W.2d 329, 333 (Iowa 1999) (citation
omitted). “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.” Id.
(citation omitted).
Here, the district court, after hearing testimony from a number of
witnesses, concluded:
The Court finds no clear evidence that [Diana] knew about
any definite or certain boundary line that [David and Karen] claimed
as the boundary line. There is no clear evidence as to the exact
location of the alleged acquiescence line. [David and Karen]
offered contradictory evidence on this issue. David’s testimony was
that the acquiesced boundary line was the fence line. However,
David wrote letters stating that the fence line moved at least once
and perhaps more than once during [Diana’s] and [Diana’s ex-
husband]’s ownership of the property. No party offered testimony
as to the previous location of the fence. In their Petition, [David and
Karen] describe the alleged acquiesced line as being marked by
fence lines, bushes, trees, or other shrubbery, but the testimony
presented at trial established that the arborvitae trees were planted
two to three feet south of the fence. These lines are not the same
line.
....
There simply is no evidence in the record of consent on the
part of [Diana] to the boundary line claimed by [David and Karen].
[David and Karen] and [Diana] have maintained and used the
disputed tract, and there clearly has been an ongoing dispute over
the location of the boundary line. There is no evidence that the
maintenance provided by [David and Karen] was the exclusive
maintenance provided in the disputed area, and [David and Karen]
have not provided proof that [Diana] and [Diana’s ex-husband]
consented to [David and Karen’s] boundary claim after [Diana] and
[Diana’s ex-husband] purchased the property in 1993. The Court is
persuaded by [Diana]’s testimony that [the former owner] also did
not give consent to the acquiesced boundary line. . . . With respect
to the partial fence, there simply is no clear evidence that the partial
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fence ever was treated mutually as a boundary by [David and
Karen] and [Diana] for ten years. Further, as to the allegation that
the tree line marks the acquiesced line, the evidence was clear that
there was a two to three foot gap between the fence and the trees,
and the trees were not planted until 1995. This also does not
constitute evidence of a mutual agreement by the parties to
establish an acquiesced line for a ten year period anytime between
1995 and the present date.
[David and Karen] have failed to show by clear evidence that
the asserted property line was being treated as a boundary; that the
parties acknowledged and treated the line as a boundary; or that
there was acquiescence that persisted for ten years. Therefore, all
of [David and Karen’s] claims necessarily fail, as [David and Karen]
are not entitled to injunctive relief or a decree quieting title in their
name where they cannot prove boundary by acquiescence.
Upon our review of the record, we conclude substantial evidence supports
the district court’s decision, and we affirm without further opinion pursuant to
Iowa Court Rule 21.26(1)(d) and (e).
AFFIRMED.