AGREEING TO DISAGREE
It happens more often than you’d think. Over a period of years and successive owners, everyone starts thinking that the old hawthorn tree, a big old rock, or even a crack in the curb marks the boundaries between the old homestead and the Smith house next door.
But it isn’t.
These kinds of problems could be avoided if people only hired surveyors regularly or reread their deeds and paced off all of those metes and bounds regularly. Of course, people are by and large normal, so they don’t usually do such things.
Most states have statutes that address what happens when owners jointly misunderstand their boundaries. The thinking is that if enough time elapses, there’s little to be gained by trying to unwind what everything thought was a fact. Or, given enough time, perception becomes reality.
Of course, claiming that a new boundary has been agreed to by acquiescence is fraught with peril because the other party – whose acquiescence must be shown – probably disagrees with the claimant (or they would not be in court to begin with). That’s what happened to the Guthries in today’s case.
Guthrie v. Jones, 780 N.W.2d 248 (Court of Appeals, Iowa, 2010). The Guthries’ property abutted land owned by Jones. A line of shrubs and trees ran along one side of the adjacent properties, and the Guthries had always believed that the tree line marked the property boundary.
It didn’t. Instead, a 2007 survey by neighbor Jones showed the property line to be 10 feet to the west of the line of shrubs and trees. The Guthries had gotten used to thinking they had 10 feet more room in the side yard than they really did, so they brought suit, arguing that under Chapter 650 of the Iowa Code, the shrub and tree line – not the surveyed line – should establish the actual boundary. The Guthries claimed that the Joneses had agreed to the property line being marked by the trees, an argument known as “acquiescence.”
The trial court found that the survey established the boundary line between the two properties because the Guthries did not prove the Joneses’ acquiescence.
Held: The appellate court affirmed the trial court. Iowa law governing boundaries by acquiescence holds that “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.” The owners’ recognition may be evidenced by conduct or by claims asserted by the parties, but it must be by both parties. The acquiescence by both parties is a condition precedent for proving the existence of a boundary by acquiescence.
The party seeking to establish a boundary line that deviates from the surveyed boundary line must prove acquiescence by clear evidence. This is a higher standard than the usual civil standard of proof, which is “preponderance of the evidence” (which means, essentially, by a majority of the evidence).
In this case, the appellate court agreed with the trial court that Jones did not consent to the shrub and tree boundary line for the required 10-year period. The Guthries purchased their lot in 1979. At that time, the seller placed metal pins in the ground to mark the boundary line. Subsequently, the Guthries used the pins as a guide for mowing. Jones did not object to using the land “close to, if not over the surveyed boundary line.” However, the court reasoned that this failure to object constituted nothing more than a neighborly gesture and fell far short of showing Mr. Jones’ consent to a new boundary line.
At trial, Mr. Jones asserted that he maintained the area in question since 1989 and did not recognize the shrub and tree line as the true boundary. The Guthries didn’t have sufficient evidence to disprove this. Thus, the Guthries failed to prove their claim for acquiescence.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 