Black v. Jorgensen

IN THE COURT OF APPEALS OF IOWA

No. 19-1576
Filed December 16, 2020

BETTY BLACK,
Plaintiff-Appellant,

vs.

ROBERT JORGENSEN, JR., Individually and as Trustee
of the ROBERT JORGENSEN, JR. TRUST,
Defendants-Appellees.
________________________________

ROBERT JORGENSEN, JR., Individually and as Trustee
of the ROBERT JORGENSEN, JR., TRUST,
Counterclaim Plaintiffs,

vs.

BETTY BLACK,
Defendant to Counterclaim
________________________________________________________________

Appeal from the Iowa District Court for Lucas County, Michael Jacobsen,

Judge.

Betty Black appeals a district court ruling quieting title of disputed property

to the Robert Jorgensen, Jr. Trust. AFFIRMED.

Stephen P. Dowil of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman,

P.C., West Des Moines, for appellant.

Bradley M. Grothe of Craver Grothe & Cox, LLP, Centerville, for appellee.

Heard by Bower, C.J., and Vaitheswaran and Greer, JJ.
 2

BOWER, Chief Judge.

This case arises from a boundary dispute between Betty Black and the

Robert Jorgensen, Jr. Trust.1 Black seeks quiet title and damages relating to a

disputed area where her property adjoins the Jorgensen property. We affirm the

district court ruling finding the Jorgensen Trust to be the owner of the disputed

area and dismissing Black’s trespass and damages claims.

I. Background Fact & Proceedings

Black’s parents purchased eighty acres of land in 1956. Her brother Glen

acquired the property in 1979, transferred it to his family trust in 2010, and Black

purchased the property in 2014. The property is primarily wooded, and the tillable

ground has been in the conservation reserve program (CRP) since 1998. 2 Black

does not live on the property. Glen does most of the work for Black’s property with

help from his son Galen.

In 2006, Jorgensen acquired the eighty acres directly to the east of Black’s

property. Before Jorgensen, Raymond and Helen Labatut owned the property until

1970, and then Warren and Helen Rush owned it until 2005. The Rushes sold the

land in 2005. In 2006, Jorgensen acquired it under a corporate name, transferred

it to his own name, and eventually transferred title to his nominative trust.

Jorgensen owns additional land abutting this property to the north and east.

The boundary of record concerning the disputed area is a government

survey line. The district court found the line between the Black and Jorgensen

1We will refer to both Robert Jorgensen and the Trust as “Jorgensen.”
2The disputed property is not part of the CRP. The USDA map shows the eastern
border of the Black property as the government survey line.
 3

properties “lies in and through a steep and wide drainage ditch. The drainage ditch

is densely wooded and vegetated. The drainage ditch and creek drains water from

both the Jorgensen and Black parcels. The drainage ditch and creek renders

fencing along the majority of the government boundary line essentially

impossible.”3 Until the early 1990s, the ditch had flood events. Then, a dam was

built up stream to curtail flooding, but the ditch still carries a lot of water at times.

Each deed transfer over the past sixty years for both properties describes

the properties in fractional terms of section 18. Neither property’s deed includes

an exception or easement, nor otherwise indicates a property line different from

the government survey line.

In 1960, Raymond Labatut, then the owner of Jorgensen’s property, hired

Black’s father to replace a fence along the top of the ridge on the east side of the

ditch. Neither Labatut nor Black’s father was alive to testify whether they

understood the fence to be a boundary fence or interior barrier fence. Glen and a

neighbor, who were teenagers at the time, helped Black’s father construct the

fence. The fence ran along the boundary of record at the north end of the ditch,

curved along the ditch footprint, and returned to near the survey line on the

southern end of the property.4 The Labatuts and then the Rushes kept cattle in a

pasture bordering Black’s, and the fence kept them out of the ditch.5

Black and her predecessors in title have maintained the northern portion of

the fence, including replacing the fence around 2005, and Jorgensen and his

3 The parties stipulated Jorgensen is the owner of record of the disputed area.
4 Black’s father had a fence on the west side of the ditch to keep his cattle out of
the ditch.
5 Jorgensen has not run cattle or other livestock near the disputed area.
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predecessors were responsible for maintaining the southern portion.6 Warren

Rush did not replace the southern portion of the fence when Glen had the north

portion replaced. Glen told Jorgensen shortly after his purchase of the property

that he and Rush had maintained the fence on a “left hand rule,” rather than the

traditional “right hand rule,”7 and said Jorgensen’s portion needed to be replaced.

The disputed property consists of 6.44 acres between the boundary of

record east to the fence that had been maintained by Black’s and Jorgensen’s

predecessors. Witnesses described the property as “worthless” for cultivation, and

Black and her predecessors have not harvested trees from the area. Galen would

occasionally graze cattle on it, and Black’s family and friends used the land for

hunting.8 Neither Black nor Glen ever discussed with Jorgensen or the Rushes

that they considered the old fence to be the boundary line rather than the

government survey line, reasoning they “all knew” where the boundary was.

Warren Rush Jr. said his understanding was the boundary was an old fence

running through the ditch “along the creek,” the fence up on the hill east of the ditch

was an interior fence, and his family maintained all of it as it curved around the

ditch.

6 Neither abstract of title references a fence agreement between property owners.
See Iowa Code § 359A.12 (2017) (establishing adjoining landowners may enter
into an enforceable and conclusive agreement as to who maintains each part of a
fence between their lands and have it recorded as part of the property deeds).
7 The “right-hand rule” means that if two adjoining property owners were to face

each other at the center of the fence along their shared boundary line, each would
be responsible for the half of the fence to his or her right. See David S. Steward,
Note, Iowa Agricultural Fence Law: Good Fences Make Good Neighbors, 43 Drake
L. Rev. 709, 713 (1995).
8 The Black family’s deer stands were not on the disputed property.
 5

The Black family and friends, the Rushes, and other neighbors had all

hunted in and near the disputed area for many years. Evidence of trespassers has

been found in the area, and Jorgensen complained about trespassers to his

neighbors soon after he purchased the property. Jorgensen encountered people

hunting and running dogs on his land, some of whom claimed to have been

directed there by the Black family. In late 2015, Jorgensen advised Galen he would

install a high fence to keep out trespassers and protect the equipment he stored

on the property.

In 2016, Jorgensen built a new, eight-foot fence on three sides of his

property, including along the boundary shared with Black.9 As part of the fence

construction, Jorgensen cleared seventy to eighty feet along the edge of the ditch

and his property line of trees and brush. He also filled small drainage ditches and

installed culverts and sediment basins to control erosion.

The new fence runs along the government survey line on the north end of

the Black-Jorgensen boundary, curves along the east embankment of the drainage

ditch, and ends close to the government survey line in the south. Black claims the

new fence was built to the west of the 1960 fence, though Jorgensen claims the

old fence was not where Black and Glen indicated. Just under two acres of land

falls between where the old fence allegedly ran and Jorgensen’s new fence.

Another four and a half acres between the new fence line and the government

survey line in the ditch. Black claims ownership of the land between the survey

9Jorgensen’s fence enclosed approximately 480 acres, including the eighty acres
acquired from the Rushes.
 6

line and where she estimates the 1960 fence sat. In the map below from Daniels’s

survey, Black’s property is on the left and Jorgensen’s is on the right.
 7

In May 2017, Black sent a cease-and-desist letter to Jorgensen, alleging

the new fence was on her property and that his construction was eroding her

property. Jorgensen ceased any work he had planned on the fence, which

included erosion mitigation work.

On August 30, 2017, Black filed a petition to establish a boundary, and

included claims of trespass, nuisance, and conversion. Black sought a permanent

injunction against Jorgensen and requested punitive damages. Black also

asserted alternative theories of boundary by acquiescence and quiet title (adverse

possession). Jorgensen counterclaimed with a petition to quiet title and requested

an injunction.

Black and Jorgensen each hired a surveyor to examine the boundary area

in dispute. Glen painted lines where he estimated the prior fence had been placed

before Jorgensen’s work for the surveyors to observe. The surveyors—Chad

Daniels and Todde Folkerts—worked together and created their maps based on a

shared set of coordinates.

When asked about why no fence remnants were found on the government

survey line, Daniels testified,

It is almost impossible or impractical to build a fence on the deed line,
and that is why we didn’t find any fence on the southern end of this
property. The northern end is within limits of where a fence should
be, where you think it would be in a spot that has never been
surveyed.
....
Q. Why would you say this is impractical to put a fence on that
section line? A. Because of rain washing out the fence all of the time.
It would just not last. It would be a waste of money.

No witness suggested a fence down in the drainage ditch could have been

maintained through the flooding waters.
 8

A bench trial was held June 19 through 21, 2019. In addition to testimony

and exhibits, the court inspected the property at the request of both parties. When

the court issued its ruling, it found Black did not prove a boundary by acquiescence,

boundary by practical location, or adverse possession, and the disputed area

belonged to the Jorgensen Trust. The court also denied Black’s conversion,

nuisance, trespass, damages, and injunctive relief claims.

Black appeals.

II. Standard of Review

“[O]ur appellate standard of review of an acquiescence claim is statutorily

defined as correction of errors at law.” Albert v. Conger, 886 N.W.2d 877, 879

(Iowa Ct. App. 2016). However, we may review the disposition de novo if the

parties agree “that the claims were equitable and tried in equity” and if we resolve

the issue the same way as if reviewed for correction of errors at law. Id. Here, the

parties agree and the court noted at trial that all matters were tried in equity,

therefore we review de novo. See Iowa R. App. P. 6.907. “The doctrine of practical

location is equitable in nature” and is also reviewed de novo. Jager v. Bracker W.

Farm Corp., No. 07-0268, 2007 WL 2713003, at *2 (Iowa Ct. App. Sept. 19, 2007).

Likewise, our standard of review for adverse possession in a quiet-title action is de

novo. Albert, 886 N.W.2d at 879.

III. Analysis

A. Boundary by Acquiescence.

A boundary by acquiescence is established “[i]f 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.” Iowa Code § 650.14. “A
 9

party seeking to establish a boundary other than a survey line must prove it by

‘clear’ evidence.” Egli v. Troy, 602 N.W.2d 329, 333 (Iowa 1999) (quoting Tewes

v. Pine Lane Farms, Inc., 522 N.W.2d 801, 806 (Iowa 1994)). Acquiescence “may

be inferred from 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.”

Tewes, 522 N.W.2d at 806. “There is no requirement of some overt act in order to

establish acquiescence.” Ollinger v. Bennett, 562 N.W.2d 167, 171 (Iowa 1997).

“Acquiescence in the existence of a fence as a barrier, not as a boundary, is not

such recognition as will establish it as the true line.” Brown v. McDaniel, 156

N.W.2d 349, 352 (Iowa 1968). “Each of the adjoining landowners or their grantors

must have [had] knowledge of and consented to the asserted property line as the

boundary line.” Tewes, 522 N.W.2d at 806.

Factors considered in the past to determine if acquiescence has been

established include maintaining and improving the property, cultivation up to a

fence line, requesting permission for an activity on the property, or one party telling

the other the fence was not the true boundary during the period of acquiescence.

See Ollinger, 562 N.W.2d at 171–72 (collecting cases); Tice v. Shangle, 164 N.W.

246, 249 (Iowa 1917).

The district court found Black failed to establish acquiescence by clear

evidence. Among important indicators, the court noted, “[n]one of the adjoining

landowners ever discussed that the old fence was the boundary line” and Warren

Rush Jr. testified that his family believed the fence was a barrier and the boundary

was in the ditch to the west of the fence. Black’s alleged ten years of acquiescence

would necessarily require some years the Rushes were living on the property.
 10

Acquiescence is determined in light of the facts presented. Albert, 886

N.W.2d at 880. We accord great weight to the district court’s factual findings

because it “is in a far better position to weigh the credibility of witnesses than the

appellate court.” Id. Here, Black failed to establish by clear evidence Jorgensen

or his predecessors knew of or consented to Black’s claim the boundary was the

fence line where it curved around the drainage ditch on the

Labatut/Rush/Jorgensen property. Black’s father was hired to replace the fence in

1960, and Labatut dictated the wood used for the posts; if it had been a boundary

fence, Black’s father would have had control over the fencing decisions for the

north forty and would not have been paid for replacing that part of the fence.

Friends and family of both property owners have used the ditch area for

recreational purposes, with neither side improving it. Moreover, testimony from

both sides indicated any fence which may have existed along the government

survey line would have been washed away by significant flooding through the ditch

over the years. The evidence shows Black and her predecessor never discussed

the boundary with their neighbors, and the neighbors—since at least 1970—

considered the survey line to be the boundary line. We affirm the district court’s

ruling on the claim of boundary by acquiescence.

B. Doctrine of Practical Location.

The doctrine of practical location is similar to acquiescence. “The doctrine

of practical location, as recognized and defined in Iowa cases, is grounded on

principles of express agreement, estoppel and equity.” Kendall v. Lowther, 356

N.W.2d 181, 188 (Iowa 1984). Practical location does not include the ten-year

requirement for a boundary by acquiescence, but has the prerequisite that “the
 11

true boundary must first be disputed, indefinite and uncertain, and the parties must

have the intent to settle the boundary line in dispute.” Id.

The district court ruled,

In the case before the court Black and Jorgensen had no intent to
settle a dispute over their parcels at the time of transfer because they
were not aware of a dispute. Further, the deeds to their properties
were consistent with each other by legal description. Finally, Black
has not shown by evidence in the record that at the time of
conveyance to either Betty Black or Jorgensen (including his
immediate predecessors from Rush) that the boundary was evident
or pointed out to them. Finally, there is no evidence in the record
that the parties accepted the marked boundary by their words or
actions which amount to express approval of the marked boundary.
Black has failed to prove by clear evidence boundary by practical
location.

Black has not established the boundary was disputed, indefinite, or

uncertain. Rather, the county plat maps, assessor’s aerial photos, the USDA maps

used to identify the CRP land, and the legal descriptions all indicate a straight line

border between the properties while only testimony from Black and her family

supports a different border. Nor has she established the parties or their

predecessors had the intent to establish a new boundary with the prior fence. The

fact that the government survey line was not easily observable and it was

impossible to maintain a fence along that survey line does not mean the first fence

was by default the new boundary and approved by both property owners. Black

has failed to establish a boundary under the doctrine of practical location.

C. Adverse Possession.

Black claims that if we find no boundary by acquiescence or practical

location at the fence line, then she should be quieted title under the theory of

adverse possession.
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To establish adverse possession, the party “must establish hostile, actual,

open, exclusive and continuous possession under claim of right or color of title for

at least ten years.” Louisa Cnty. Conservation Bd. v. Malone, 778 N.W.2d 204,

207 (Iowa Ct. App. 2009) (citation omitted). “Proof of these elements must be

‘clear and positive.’” C.H. Moore Tr. Est. v. City of Storm Lake, 423 N.W.2d 13, 15

(Iowa 1988) (citation omitted). “Since the law presumes possession is under a

regular title, the doctrine of adverse possession is strictly construed.” Id.

“The possession must be such ‘as ordinarily marks the conduct of owners

in general in holding, managing, and caring for property of like nature and

condition.’” Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 818 (Iowa 2000)

(citation omitted).

The disputed area was not often used by either party or their

predecessors.10 Members of the Black family would occasionally hunt in the area

but never established hunting stands in the disputed area. Their cattle wandered

into the area for brief periods when grazing was permitted under the CRP

agreement. No other use was asserted, including any economic use such as

cultivation or tree harvesting. The only improvement asserted was the fence

upkeep for the north forty, which Warren Rush Jr. testified he also maintained

around the disputed area. We note testimony indicated hunting and wandering

cattle also extended onto undisputed Jorgensen property. Rush Jr. testified he

10Black concedes “neither party substantially used the disputed 6.44 acres near
the ditch” but asserts her family used the area “more” so title should be quieted to
Black.
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had hunted in the area since he was a child. Jorgensen and his friends used the

disputed area for mushroom hunting and deer hunting.

Black failed to establish by “clear and positive” evidence that her family had

exercised hostile, actual, open, exclusive, and continuous possession of the

disputed area for at least ten years.

We affirm the district court ruling and reject Black’s boundary and property

claims, and confirm ownership of the disputed area lies in the title holder Robert

Jorgensen, Jr. Trust.

D. Trespass and Punitive Damages.

Black reiterates her claim of trespass on appeal and requests punitive

damages and attorney fees. Black’s appealed trespass and damages claims—

that Jorgensen’s excavation, grading, and fence work damaged her property—rely

on the premise the disputed area belongs to Black and not Jorgensen.

Because we affirm the district court’s finding on the boundary claims and

confirming ownership by the Robert Jorgensen, Jr. Trust, Black’s trespass and

punitive-damage claims fail.

AFFIRMED.