ELIZABETH MILLER, DANIEL D. MILLER, JODY J. JOHNSON and CHRISTOPHER L. MILLER, Plaintiffs-Appellants, vs. MICHAEL BURGESS, SUSAN K. BURGESS And DWIGHT GAHM, Defendants-Appellees.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 6-747 / 06-0171
Filed December 28, 2006
ELIZABETH MILLER, DANIEL D. MILLER,
JODY J. JOHNSON and CHRISTOPHER L.
MILLER,
Plaintiffs-Appellants,
vs.
MICHAEL BURGESS, SUSAN K. BURGESS
And DWIGHT GAHM,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Monona County, Dewie J. Gaul,
Judge.
Plaintiffs appeal from a district court decree that denied their request to
establish property boundaries by acquiescence and their claims for trespass.
AFFIRMED.
Sam S. Killinger and Karrie R. Hruska of Rawlings, Nieland, Probasco,
Killinger, Ellwanger, Jacobs & Mohrhauser, L.L.P., Sioux City, for appellants.
Timothy S. Bottaro of Vriezelaar, Tigges, Edgington, Bottaro, Boden &
Ross, L.L.P., Sioux City, for appellees Michael and Susan Burgess.
Jennifer V. Mumm of the Mumm Law Firm, Missouri Valley, for appellee
Dwight Gahm.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
2
MILLER, J.
Plaintiffs Elizabeth Miller, Daniel Miller, Jody Johnson, and Christopher
Miller appeal from the district court decree that denied their request to establish
by acquiescence boundaries between their property and property owned by
defendants Dwight Gahm and Michael and Susan Burgess, as well as their
related trespass claims. We affirm the district court.
Elizabeth Miller holds a life estate in certain real property located in
Section Thirty-Two (32), Township Eighty-Three (83) North, Range Forty-Five
(45) West of the Fifth (5th) Principal Meridian, Monona County, Iowa (Miller
property). Daniel Miller, Jody Johnson, and Christopher Miller hold remainder
interests in portions of the Miller property.
The Miller property abuts real
property, also located in Section 32, that is owned, respectively, by Dwight Gahm
and by Michael and Susan Burgess.
In 2003 the plaintiffs filed a petition to establish by acquiescence a
boundary between the Miller property and the Burgess property. The petition
was later amended to request the establishment of boundaries between the
Miller property and the Gahm property.
The plaintiffs also added claims for
trespass, asserting the defendants had wrongfully taken possession of the land
between the survey boundaries and the boundaries claimed in the petition. In his
answer Gahm requested the district court to “reaffirm” that the boundary lines
between the adjoining properties were those established by deed and survey. 1
1
The plaintiffs also sought to establish by acquiescence a boundary between their land
and land owned by Rick and Cheryl Archer, and alleged trespass by the Archers. In
addition, the Burgesses filed a counterclaim for trespass. Neither the plaintiffs’ claims
against the Archers, nor the Burgesses’ counterclaim, is at issue on appeal.
3
The matter was tried to the district court in October 2005. The court was
presented with testimony and photographic and other documentary evidence that
both supported and refuted the plaintiffs’ contention that the defendants and/or
their predecessors in title had acquiesced in the boundaries claimed by the
plaintiffs. After considering the evidence, as well as the credibility of witnesses,
the district court determined: “There is ample evidence that the Millers and their
predecessors in interest considered the boundaries they are claiming as the true
boundaries, but that the defendants’ predecessors in interest so considered them
has not been shown by clear evidence.”
The court accordingly denied the
plaintiffs’ claims, and found that “[t]he boundary lines between the properties of
the parties are as shown by the pertinent instruments of title of record and the
surveys offered and received in evidence in this case.” The plaintiffs filed a
motion pursuant to Iowa Rule of Civil Procedure 1.904(2), which was denied by
the district court. This appeal by the plaintiffs followed.
On appeal, the plaintiffs contend they presented sufficient evidence to
establish by acquiescence the claimed boundaries between their property and
the Gahm and Burgess properties. Although actions to establish a boundary by
acquiescence are ordinarily tried at law, Ollinger v. Bennett, 562 N.W.2d 167,
170 (Iowa 1997), this matter was filed and tried in equity. As such, our review is
de novo. Iowa R. App. P. 6.4; Molo Oil Co. v. City of Dubuque, 692 N.W.2d 686,
690 (Iowa 2005). Although not bound by the court’s fact findings we give them
weight, especially when assessing witness credibility.
6.14(6)(g).
Iowa R. App. P.
4
An action to establish a boundary by acquiescence is authorized by Iowa
Code section 650.14 (2003), which provides: “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.”
Acquiescence requires mutual
recognition by the adjoining landowners, for ten or more years, that a definitely
marked line is the dividing line between the properties. Ollinger, 562 N.W.2d at
170. As the parties seeking to establish boundaries other than those in the legal
descriptions as disclosed by surveys, the plaintiffs must demonstrate, by clear
evidence, that they and the defendants, or their respective predecessors in title,
had knowledge of and consented to the asserted boundaries. Egli v. Troy, 602
N.W.2d 329, 333 (Iowa 1999). Acquiescence may be inferred from silence or
inaction if it shown that the defendants had knowledge or notice of the claimed
boundary lines yet failed to dispute them for a ten-year period. Id.
The evidence as to whether Gahm and the Burgesses or their
predecessors in interest acquiesced in the asserted boundaries, particularly
whether they had the requisite knowledge or notice, was clearly in dispute. Proof
of acquiescence turned largely on witness testimony, particularly that of Dwight
Gahm, Elizabeth Miller’s husband Gerald Miller, and Russ Lawrenson, who had
farmed what is now the Gahm and Burgess property when it was owned by
Dwight’s parents, Edward and Erma Gahm. In fact, the plaintiffs’ claims rely
heavily upon Lawrenson’s assertion that Edward Gahm had shown him the
boundaries of what are now the Gahm and Burgess property and that the
boundaries Edward identified were the same as those claimed by the Millers.
5
Significantly, the district court determined that Lawrenson was not credible
in his assertions, and provided reasons for its decision. As we readily agree with
most of the reasons underlying the district court’s credibility assessment, and as
the court had the benefit of directly observing the witnesses, we give weight to
and concur in its assessment. Other than Lawrenson’s testimony, there is no
direct evidence of knowledge by the defendants or their predecessors in interest.
Moreover, the circumstantial evidence of knowledge or notice was either
contradicted or subject to more than one reasonable inference.
Our review of the record indicates that the evidence regarding
acquiescence is, at best, in equipoise. We accordingly agree with the district
court that the plaintiffs have failed to present clear proof in support of their
claims. The district court’s decree is affirmed.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.