Knowledge that fence was not on boundary not necessary to establish boundary by acquiescence

by Melanie Thwing

Georgia Pacific Gypsum v. National Gypsum Company
(Iowa Court of Appeals, February 9, 2011)

Georgia-Pacific, L.L.C. (GP) and National Gypsum Company own adjoining properties in Webster County, IA. Since the 1950’s a wire fence had separated the south property, owned by National, and the north property, owned by Georgia-Pacific. In 2000 National had the property surveyed and found the  fence was encroaching on their property.  In 2007 National removed the fence even though GP objected. Then, in 2009 GP filed a petition under Iowa Code chapter 650 to establish the fence line as the boundary line between the properties.  In support of its position GP cited Iowa Code 650.14 which states:

If 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, such recognized boundaries and corners shall be permanently established.

In response to GP’s petition National submitted an affidavit stating: (1) there was never any knowledge that GP was claiming the fence as a boundary, (2) there was no consent to the treatment of the fence as a boundary line. Finding that from 1952 to 2000 both parties recognized the fence line as a boundary, the district court granted summary judgment for GP.  National then filed a motion to modify findings, but after the district court denied the motion National appealed to the Iowa Court of Appeals.

The Court of Appeals observed that under 650.14, acquiescence has always been defined as adjoining landowners having mutual recognition for more than ten years of a line dividing them. This line is clearly marked by a fence or in some other manner. Landowners do not need to have specific knowledge that the fence is not located on the legally defined boundary line.  When the mutual recognition of the boundary persists for more than ten years that line becomes the true boundary even if a survey shows otherwise.

National argued that GP did not prove acquiescence because in its affidavits GP never claimed the fence to be anywhere other than the legal boundary line. The Court of Appeals rejects this claim. Both GP and National demonstrated maintenance and usage of only land on their respective sides of the fence.

Secondly, National argued that their affidavits created an issue of material fact. National had paid property taxes and insured the legally defined propertu. The Court of Appeals rejected this argument. The court states that, “tax and insurance bills are typically based on legal descriptions; if that consideration were dispositive, it would be difficult to conceive any case where acquiescence could be found.” Further, even though National recognized the legal boundary line in 2000, it does not preclude that National acquiesced in the fence-line boundary before 2000.

National then argues that it never agreed to treat the fence as a boundary line. The Court of Appeals rejects this claim as well. The claim does not set forth, “specific facts showing that there is a genuine issue for trial.” It is undisputed that GP exclusively maintained and used the land to the north, and that National was fully aware of this usage and never objected to it.

Finally, National argues that the claim of acquiescence is barred by the statutes of limitations in Iowa Code §614.1(5) and §614.17A.  §614.1(5) states that actions for recovering real property must be brought within 10 years after their cause accrues. §614.17A holds, “providing that an action shall not be maintained to recover or establish an interest in or claim to real estate if the action is based upon a claim arising more than ten years earlier.”

The Court of Appeals dismisses this claim as well. Chapter 650 is a special action to establish lines or corners, and that prior caselaw has settled that the statutes of limitations cited by National do not apply to any actions under chapter 650. The district court’s decision in favor of GP was affirmed.

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