mary-virginia-mcmahon-plaintiff-appellantcross-appellee-v-david ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0421
Filed February 11, 2015
MARY VIRGINIA MCMAHON,
Plaintiff-Appellant/Cross-Appellee,
vs.
DAVID ROUSSELOW, PAMELA S. ROUSSELOW
a/k/a PAMELA S. ROUSSELOW, et al.,
Defendants-Appellees/Cross-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Poweshiek County, Myron L.
Gookin, Judge.
Mary McMahon appeals the denial of her petition to establish a boundary
by acquiescence. AFFIRMED.
Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West
Des Moines, for appellant.
John W. Harris of Law Offices of C. Kevin McCrindle, Waterloo, for
appellees.
Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
2
POTTERFIELD, J.
Mary McMahon appeals the denial of her petition to establish a boundary
by acquiescence between adjoining properties. Adjoining property owners,
David and Pamela Rousselow contend the trial court was correct in denying
McMahon’s petition and in granting their counterclaim to quiet title in the disputed
land.
“[T]he party seeking to establish a boundary line other than the boundary
line in accordance with a survey must prove acquiescence by clear evidence.”
Tewes v. Pine Lane Farms, Inc., 522 N.W.2d 801, 806 (Iowa 1994). “[A]
boundary line may be established by a showing that the two adjoining
landowners or their predecessors in title have recognized and acquiesced in a
boundary line for a period of ten years.” Id. (emphasis added). “Each of the
adjoining landowners or their grantors must have knowledge of and consented to
the asserted property line as the boundary line.” Id. (emphasis added); Sille v.
Shaffer, 297 N.W.2d 379, 381 (Iowa 1980).
Upon our de novo review,1 we find no reason to disturb the trial court’s
rulings. We agree with the trial court’s finding that “[n]either party knew where
the actual boundary line was located.” Nor was there a consistent, recognized
property line. As the trial court stated, “Because there was never any mutually
1
A claim for boundary by acquiescence is ordinarily brought “as an action by ordinary
proceedings.” See Iowa Code § 650.15 (2013). Thus, our review would normally be for
correction of errors of law. Iowa R. App. P. 6.907. However, the parties tried this matter
as one in equity, and therefore, our review is de novo. See Sille v. Shaffer, 297 N.W.2d
379, 381 (Iowa 1980) (“Since this matter was tried by the court in equity it will be so
considered by us and reviewed de novo.”). “In equity cases, especially when
considering the credibility of witnesses, the court gives weight to the fact findings of the
district court, but is not bound by them.” Iowa R. App. P. 6.904(3)(g).
3
recognized boundary between the parties, the issue of whether such boundary
was mutually recognized for a period of ten years is irrelevant.” We affirm.
AFFIRMED.