IN THE SUPREME COURT OF IOWA
No. 71 / 05-1767
Filed August 10, 2007
JERRY D. LONGFELLOW,
Appellant,
vs.
HAL SAYLER,
Appellee.
Appeal from the Iowa District Court for Taylor County, John D. Lloyd,
Judge.
A landowner appeals a decision of the fence viewers. REVERSED
AND CASE REMANDED.
Richard L. Wilson of Wilson & Spurrier, P.C., Lenox, and Richard O.
McConville of Coppola, Sandre, McConville & Carroll, P.C., West Des
Moines, for appellant.
Stuart D. Nielsen and Stephanie M. Nielsen of Nielsen & Nielsen, P.C.,
Corning, for appellee.
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WIGGINS, Justice.
A landowner and his neighbor had a dispute over an agreement to
erect and maintain a partition fence between their properties. The
landowner requested the fence viewers determine whether the neighbor’s
fence complied with the agreement. The fence viewers determined the fence
complied with the agreement. The landowner appealed the fence viewers’
decision to the district court. The district court agreed with the fence
viewers and entered judgment for the neighbor. On our review, we find as a
matter of law the record establishes the neighbor’s fence did not comply
with the agreement. Therefore, we reverse the judgment of the district court
and remand the case for the district court to enter judgment in favor of the
landowner consistent with this opinion.
I. Background Facts.
Jerry Longfellow and Carolyn Sayler owned adjoining parcels of land
sharing a boundary fence line. Since 1955 Longfellow has operated a cattle
and row crop farm on his property. Originally, there was a fence between
the Longfellow and Sayler farms. However, the fence was not adequate to
keep cattle from mixing between the Sayler and Longfellow operations. Due
to these problems, Longfellow and Carolyn Sayler entered into a voluntary
fence division agreement. Longfellow’s attorney drafted the agreement. The
parties signed the agreement and recorded it with the Taylor county
recorder on September 30, 1977.
After providing the legal description for the Longfellow and Sayler
plots, the agreement defines the duties of each party. The agreement states
for the common fence lying between the Longfellow and Sayler parcels,
Longfellow “shall have the responsibility for the construction, maintenance
and repair of the North 80 rods of such common fence” and Sayler “shall
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have the responsibility for the construction, maintenance and repair of the
South 80 rods of the common fence.” The agreement also provides:
that both parties are to have their portion of said fences so
erected and/or repaired and maintained on or before
December 31, 1977, and thereafter to so maintain the stated
portions assigned to such party as per this Agreement.
Under the agreement, Longfellow and Carolyn Sayler
agreed that should either party bring all of their portion of the
fence to a tight fence condition as defined by Section 113.20 of
the 1977 Code of Iowa, that the other party hereto shall bring
all of their portions of such fence to such tight fence condition
within ninety days.
Section 113.20 of the 1977 Code defined a tight fence. It stated:
All tight partition fences shall consist of:
1. Not less than twenty-six inches of substantial woven wire
on the bottom, with three strands of barbed wire with not less
than thirty-six barbs of at least two points to the rod, on top,
the top wire to be not less than forty-eight inches, nor more
than fifty-four inches high.
2. Good substantial woven wire not less than forty-eight
inches nor more than fifty-four inches high with one barbed
wire of not less than thirty-six barbs of two points to the rod,
not more than four inches above said woven wire.
3. Any other kind of a tight partition fence, which in the
opinion of the fence viewers, is equivalent thereto.
Iowa Code § 113.20 (1977).1 Longfellow and Carolyn Sayler agreed the
fence agreement should be construed as a covenant and as binding against
the parties and their grantees, executors, administrators, heirs, devisees,
successors, or assigns.
Carolyn Sayler passed away and her son, Hal Sayler (Sayler), the
defendant in this action, purchased the Sayler farm. Sayler now represents
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all interests in the real estate described in the fence agreement. When
Sayler purchased the farm, he knew there was a fence agreement between
the Sayler farm and the Longfellow farm. Sayler admits the agreement was
and is a covenant running with the land and is binding on him.
Longfellow’s fence is constructed of thirty-nine-inch woven wire, with
two barbed wires on top and one barbed wire on the bottom of the fence.
Longfellow did not offer any evidence about the condition of the Sayler fence
prior to Sayler’s purchase of the farm. The photographs entered into
evidence show the old Sayler fence had three barbed wires and did not
contain any woven wire. It is not clear from the record when the old Sayler
fence was built or what the condition of the fence was in 1977 when the
fence agreement was recorded.
After Sayler acquired the property, Longfellow approached Sayler and
asked him to bring his fence to a tight condition. Sayler told Longfellow he
was only going to install a barbed-wire fence because Sayler thought a tight
fence was too expensive. Sayler testified he did not want to put a woven-
wire fence in because a woven-wire fence is more difficult to maintain.
Longfellow sent Sayler a letter through the sheriff’s office requesting
Sayler to bring his fence to a tight condition. Longfellow also sent a notice
to the township trustees about the dispute. After Sayler received
Longfellow’s letter he contacted the township trustees and inquired whether
he was required under the agreement to build a woven-wire fence or if a
five-barbed-wire fence would conform to the agreement.
Sayler contends the trustees informed him a fence constructed of five
strands of barbed wire would suffice under the agreement. Sayler went
1All references to chapter 113 are to the 1977 Code of Iowa. In 1993 the Code
editor transferred chapter 113 to chapter 359A.
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ahead, and in the face of Longfellow’s objections, built the five-barbed-wire
fence with posts at approximately every ten or twelve feet of the fence line.
II. Prior Proceedings.
By sending the letter to Sayler and notifying the township trustees,
Longfellow invoked the powers of the fence viewers to determine the fence
controversy. Iowa Code §§ 359A.3, .4, .9 (2003).2 Three trustees, acting as
fence viewers, came out to the fence line and viewed the fence. The fence
viewers issued an order finding the Sayler fence to be lawful and tight. The
fence viewers assessed Longfellow with the costs of the fence-viewing
proceeding.
Longfellow appealed the fence viewers’ decision to the district court.
As an affirmative defense, Sayler asserted he complied with the fence
agreement because the fence viewers determined his fence was lawful and
tight.
Prior to trial Longfellow filed a motion in limine claiming the order of
the fence viewers was not admissible at trial. The district court sustained
the motion. At trial the district court reversed itself and allowed Sayler to
enter the order of the fence viewers. The district court changed its ruling
because it now understood the case involved “an interpretation of a fence
agreement already in existence which incorporates code sections which
specifically provides as one option a finding by the trustees of what is an
equivalent tight fence.” Accordingly, the district court considered the order
relevant.
The district court found the agreement between the parties clearly
refers to Code section 113.20. The court further found although Sayler’s
fence did not comply with either subsection 113.20(1) or (2), it did comply
2All references to chapter 359A are to the 2003 Code of Iowa.
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with subsection 113.20(3), which allows the fence viewers to determine
whether a fence is equivalent to a tight fence.
Further, because the district court found “the Sayler fence has never
been anything but a barbed-wire fence” and, “for 27 years, [Longfellow] did
not seek to enforce the tight fence requirement,” it concluded Longfellow
was precluded from enforcement of the tight fence requirement by the
doctrines of waiver and estoppel by acquiescence. The district court
dismissed Longfellow’s petition and taxed all costs to him.
Longfellow filed a motion to amend or enlarge the findings of fact and
conclusions of law. The district court denied Longfellow’s motion.
III. Issues.
Longfellow appeals claiming the district court erred: (1) in admitting
the order of the fence viewers; (2) in finding the Sayler fence was in
compliance with the agreement; and (3) by applying two affirmative defenses
not pled by Sayler. Sayler agreed he did not plead either of the affirmative
defenses and therefore, he waived these issues. Consequently, we will only
address the first two issues raised by Longfellow.
IV. Standard of Review.
Although the clerk docketed this case in equity, Longfellow filed it as
an appeal of the fence viewers’ decision. In his appeal Longfellow requested
the decision of the fence viewers be reversed and the court to enforce the
agreement. The standard of review on appeal is not governed by how the
clerk docketed the case, but rather by how the parties tried the case in the
district court. Henning v. Security Bank, 564 N.W.2d 398, 399 (Iowa 1997).
The parties tried the case as an appeal from the fence viewers’
decision, which necessarily included an interpretation of the agreement. An
appeal from a decision of the fence viewers is triable as a law action. Moore
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v. Short, 227 Iowa 380, 381, 288 N.W. 407, 408 (1939). Therefore, we
review an appeal from the district court’s decision in a fence-viewing case
for the correction of errors at law. Duncalf v. Ritscher Farms, Inc., 627
N.W.2d 906, 908 (Iowa 2001). Thus, we are bound by the district court’s
well-supported factual findings, but not by its legal conclusions. Falczynski
v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995).
The construction and interpretation of a contract is generally reviewed
as a matter of law. Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa
1999). The construction or interpretation made by the district court is not
binding on us. Id. However, if the district court’s interpretation was
predicated upon extrinsic evidence, the findings of the court are binding on
appeal if supported by substantial evidence. Connie’s Constr. Co., Inc. v.
Fireman’s Fund Ins. Co., 227 N.W.2d 207, 210 (Iowa 1975).
V. Statutory Framework.
In Iowa there is no common law duty for landowners to fence their
property. Jacobs v. Stover, 243 N.W.2d 642, 644 (Iowa 1976) (citing cases).
Instead, the Iowa legislature has created two circumstances in which a
landowner is required to erect and maintain a partition fence.
First, a landowner is required to erect and maintain a partition fence
when an agreement is reached between adjoining landowners. Iowa Code
§ 359A.12. The Code requires the agreement to be in writing,3 describing
each landowners’ land, stating the portion of the partition fence that will be
erected and maintained by each owner, and describing the parts of the
fence so assigned. Id. The agreement is to be signed and acknowledged by
the landowners and recorded in the office of the recorder of deeds of the
3Although the Code requires the agreement to be in writing, this court has enforced
oral agreements between landowners. See Osgood v. Names, 191 Iowa 1227, 1233, 184
N.W. 331, 333 (1921) (recognizing an oral partition fence agreement to keep in repair a
portion of the partition fence).
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county or counties in which the fence is situated. Id. If the written
agreement is recorded, the agreement is binding on the makers, their heirs,
and subsequent grantees. Id. § 359A.13. The parties can also intend the
agreement to be a covenant that runs with the land. Sexauer v. Wilson, 136
Iowa 357, 362, 113 N.W. 941, 943 (1907). A written agreement to erect and
maintain a partition fence is enforceable in district court. 3 Marlin M. Volz,
Jr., Iowa Practice: Methods of Practice § 46:7, at 336 (2006) [hereinafter
Volz].
Second, under Iowa Code section 359A.1A an adjoining landowner
can request another adjoining landowner to maintain a partition fence. See
Iowa Code § 359A.1A (“The respective owners of adjoining tracts of land
shall upon written request of either owner be compelled to erect and
maintain partition fences, or contribute thereto, and keep the same in good
repair throughout the year.”). If a conflict arises between the two adjoining
landowners, the Code provides that one landowner may request the fence
viewers to determine the controversy. Id. §§ 359A.3, .4. Once an order by
the fence viewers is recorded, the order is binding on the makers, their
heirs, and subsequent grantees. Id. § 359A.13. The decision of the fence
viewers can be appealed to the district court. Id. § 359A.23.
VI. Analysis.
A. Procedure employed by Longfellow to enforce the fence agreement.
The fence agreement between Longfellow and Sayler provides:
should either party bring all of their portion of the fence to a
tight fence condition as defined by Section 113.20 of the 1977
Code of Iowa, that the other party hereto shall bring all of their
portion of such fence to such tight fence condition within
ninety days.
Under the doctrine of incorporation, an extrinsic document becomes
part of the contract by reference to that document in the contract.
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Hofmeyer v. Iowa Dist. Ct., 640 N.W.2d 225, 228 (Iowa 2001). The doctrine
of incorporation requires the contract to make a clear and specific reference
to an extrinsic document to incorporate the document into the contract. In
re Estate of Kokjohn v. Harrington, 531 N.W.2d 99, 100-01 (Iowa 1995).
Whether a contract incorporates extrinsic material presents a question of
law. Hofmeyer, 640 N.W.2d at 228. Statutes and administrative rules can
become part of a contract under the doctrine of incorporation. See id. at
229 (holding an administrative rule referred to in the contract became part
of the contract under the doctrine of incorporation); 11 Richard A. Lord,
Williston on Contracts § 30:19, at 202 (4th ed. 1999) [hereinafter Williston on
Contracts] (stating “[w]hen a contract expressly incorporates a statutory
enactment by reference, that enactment becomes part of a contract for the
indicated purposes just as though the words of that enactment were set out
in full in the contract”).
Here, the fence agreement contained a clear and specific reference to
section 113.20 of the 1977 Iowa Code. This incorporation created a
requirement on both parties to bring each party’s portion of the partition
fence to a tight fence condition as defined by section 113.20. The statutory
requirements explicitly set forth in subsections 113.20(1) and (2) require the
fence to be partially made of woven wire. See Iowa Code § 113.20(1), (2)
(stating “[a]ll tight partition fences shall consist of: (1) . . . substantial woven
wire . . . [or] (2) [g]ood substantial woven wire . . . .”).
Sayler admits his fence was made only of barbed wire and did not
contain woven wire. Therefore, the Sayler fence did not meet the specific
statutory requirements contained in subsections 113.20(1) and (2).
Accordingly, the Sayler fence can only comply with the agreement by
meeting the statutory definition of a tight fence contained in subsection
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113.20(3). Subsection 113.20(3) requires the fence viewers to view the
partition fence and determine whether Sayler’s portion of the fence is an
equivalent tight fence. See id. § 113.20(3) (stating “[a]ll tight partition
fences shall consist of: . . . (3) [a]ny other kind of a tight partition fence
which, in the opinion of the fence viewers, is equivalent thereto”).
Longfellow requested the trustees, acting as fence viewers, to
determine the fence controversy. The fence viewers visited the partition
fence, viewed it, and determined the Sayler portion of the fence was lawful
and tight.
B. The effect of using the fence viewers to determine the dispute. The
district court decided in favor of Sayler finding the fence viewers’
determination that the Sayler fence was lawful and tight satisfied any
obligation Sayler had regarding his portion of the fence under the
agreement. We disagree.
Under chapter 359A, when there is no written agreement, a party’s
appeal to the district court of the fence viewers’ decision requires a trial as
in any other case. Iowa Code § 359A.23. Accordingly, the appeal of a fence
viewers’ decision is triable at law. Laughlin v. Franc, 247 Iowa 345, 347, 73
N.W.2d 750, 751 (1955). Either party has the right to demand a trial by
jury. Moore, 227 Iowa at 381, 288 N.W. at 408. As in all civil trials, the
rules of civil procedure and the rules of evidence apply. Iowa R. Civ. P.
1.101; Iowa R. Evid. 5.101.
When a party requests the fence viewers to settle a dispute under an
agreement, the decision of the fence viewers is appealable, just as any other
decision of the fence viewers. See Huber v. Wilkinson, 46 Iowa 458, 459
(1877). In Huber, the plaintiff claimed he entered an agreement with his
neighbor requiring his neighbor to build and maintain a fence capable of
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turning sheep and swine. Id. Instead of bringing an action in district court
to enforce the agreement, the plaintiff first asked the fence viewers to decide
the dispute. Id. The fence viewers found in favor of the plaintiff. Id. On
appeal to the district court, the dispute was settled by a trial anew, rather
than by enforcement of the fence viewers’ decision. Id. at 459-60. On
appeal to this court, we affirmed the district court’s judgment to enforce the
agreement. Id. at 460.
The fence viewers’ decision is appealable in this case because the
provisions and procedures of chapter 359A were incorporated into the
parties’ agreement. See Miller v. Marshall County, 641 N.W.2d 742,
751 (Iowa 2002) (stating there is a presumption that applicable statutes are
incorporated into parties’ contracts); Williston on Contracts, at 203 (stating
“the incorporation of applicable existing law into a contract does not require
a deliberate expression by the parties”). This procedure is consistent with
the legislative scheme enacted regarding the use of fence viewers to settle
disputes. See Iowa Code § 359A.23; Laughlin, 247 Iowa at 347, 73 N.W.2d
at 751.
In a trial held on an appeal from a fence viewers’ decision the finder of
fact is required to determine anew any issues generated regarding the
division, construction, repair, or maintenance of the fence in question.
Volz, at 347. If the fence viewers can find a fence to be equivalent to a tight
fence under subsection 113.20(3), the finder of fact is required to make an
independent determination whether the fence is equivalent to a tight fence
at the district court trial. It is illogical to assume the legislature would
make the decision of the fence viewers binding if a party requests the fence
viewers to settle a dispute under a written agreement, but non-binding
when a party requests the fence viewers to settle a dispute when there is no
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written agreement.
In this case, the district court found “[t]he fence viewers determined
that the 5-strand barbed-wire fence was both ‘lawful’ and ‘tight.’ Thus, the
fence complies with the clear language of the agreement.” Clearly, the
district court found in favor of Sayler without making independent factual
findings about the fence and merely accepted as binding the findings of the
fence viewers. We find this was error. On an appeal of a fence viewers’
decision, the district court is required to make its own factual findings
regarding the division, construction, repair, or maintenance of the fence in
question. Accordingly, the district court should not have relied on the fence
viewers to be the ultimate arbitrators of this partition fence dispute.
C. Admissibility of the fence viewers’ decision. It has long been the
law of this state that in an appeal of a fence viewers’ decision, their decision
is not admissible at trial in the district court. Smith v. Ellyson, 137 Iowa
391, 394, 115 N.W. 40, 41 (1908). The reason for this rule is to allow the
finder of fact to determine the dispute solely based on the evidence admitted
at trial. Therefore, the district court erred in admitting the decision of the
fence viewers into evidence and treating it as the final decision settling the
dispute between the parties.
D. Whether the evidence supports the district court’s finding that the
Sayler fence complied with the terms of the fence agreement. The district
court has the duty to determine the facts based on the evidence admitted at
trial. Therefore, we must determine whether substantial evidence supports
these findings.
The fence agreement incorporated section 113.20’s definition of a
tight fence into the agreement. The 1977 Code distinguishes a tight fence
from a lawful fence. To qualify as a lawful fence under the 1977 Code, the
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fence is only required to have rails, boards, or wire fastened between the
fence posts. Iowa Code § 113.18. On the other hand, the 1977 Code
requires a tight fence to have substantial woven wire and barbed wire
between the posts. Id. § 113.20. The difference between a tight fence and a
lawful fence under the 1977 Code is that a tight fence contains a physical
barrier of woven wire whereas a lawful fence does not. The 1977 Code also
provides that any other fence determined to be “equivalent” to a tight fence
can qualify under the statutory definition of a tight fence. Id. § 113.20(3).
“Equivalent” means “corresponding or virtually identical esp. in effect or
function.” Webster’s Third New International Dictionary 769 (unabr. ed.
2002). Therefore, in order for a fence to be equivalent to a tight fence, it
must contain some sort of physical barrier corresponding or virtually
identical in effect or function to the substantial woven wire specification
described in subsections 113.20(1) and (2).
The district court found although Longfellow’s fence did not comply
with the specifications in subsections 113.20(1) or (2), the parties agreed
Longfellow’s fence is equivalent to a tight fence. The district court also
found Longfellow’s fence consisted of a combination of woven wire and
barbed wire. We believe substantial evidence supports finding that
Longfellow’s fence is equivalent to a tight fence because his fence contains a
physical barrier corresponding or virtually identical in effect or function to
the substantial woven wire specification described in subsections 113.20(1)
and (2).
Sayler’s fence consisted of five strands of barbed wire equally spaced
on the posts. This spacing does not provide a physical barrier
corresponding or virtually identical in effect or function to the substantial
woven wire specification described in subsections 113.20(1) and (2).
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Without an equivalent physical barrier, Sayler’s fence is nothing more than
a lawful fence. Accordingly, not only do we find substantial evidence does
not support the district court finding that Sayler’s fence is a tight fence
under section 113.20, but we also find as a matter of law Sayler’s fence is
not equivalent to a tight fence.
Accordingly, we must reverse the judgment of the district court.
VII. Disposition.
Because the record in this case establishes as a matter of law that
Sayler’s fence is not a tight fence under section 113.20, we conclude the
district court incorrectly entered judgment in favor of Sayler when it should
have entered judgment in favor of Longfellow. Therefore, we reverse the
judgment of the district court and remand the case back to the district
court. On remand the district court shall enter judgment in favor of
Longfellow for the relief he requested. The judgment should require Sayler
to bring his fence to a tight condition as defined by section 113.20 of the
1977 Code of Iowa within ninety days of the judgment, pay all the costs
associated with the fence viewers’ proceeding, and tax Sayler the costs of
this action.
REVERSED AND CASE REMANDED.