LON LINDSEY and JODI LINDSEY, RON ABEL, DAVID STAAKE and KORENE STAAKE, and GARY STAAKE and CATHY STAAKE, Plaintiffs-Appellees, vs. MILFORD KOEHN, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-215 / 06-1427
Filed June 13, 2007
LON LINDSEY and JODI LINDSEY,
RON ABEL, DAVID STAAKE and KORENE STAAKE,
and GARY STAAKE and CATHY STAAKE,
Plaintiffs-Appellees,
vs.
MILFORD KOEHN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clayton County, Monica L. Ackley,
Judge.
Defendant appeals the district court decision quieting title to certain
property in plaintiffs over his claims of boundary by acquiescence. AFFIRMED.
Terry D. Parsons of Olsen & Parsons Law Firm, Cedar Falls, for appellant.
Andrew P. Nelson of Meyer, Lorentzen & Nelson, Decorah, for appellees.
Considered by Zimmer, P.J., and Baker, J., and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
2
BROWN, S.J.
I.
Background Facts & Proceedings
In August 2005, Lon Lindsey, Ron Abel, David Staake, Gary Staake, and
their spouses filed a petition against Milford Koehn seeking to quiet title to certain
real estate in Clayton County.
The petition stated plaintiffs were credibly
informed and believed that Koehn made some claim to the premises adverse to
their title.
Koehn raised as an affirmative defense the failure to mitigate
damages, and reserved the right to amend his answer to raise further affirmative
defenses.
On the morning of trial, held on June 1, 2006, Koehn submitted a trial brief
which raised for the first time the issue of boundary by acquiescence under Iowa
Code section 650.14 (2005). Plaintiffs advised the court they would not try that
issue by consent, and asked that the case be tried solely on the pleadings.
Koehn stated he had claimed during discovery that a fence had become the
boundary line through the acquiescence of the adjoining landowners. Koehn
orally requested to amend his answer to include the affirmative defense of
boundary by acquiescence. The district court ruled the hearing would go forward
based only on the pleadings in the record. The court further offered the parties a
continuance if either party believed that it was necessary “to conform the
pleadings to what it is you believe your evidence will support.” Neither party
requested a continuance.
After the close of the evidence, Koehn orally moved to amend his answer
to conform to the proof in the case. Plaintiffs resisted Koehn’s motion. The court
3
stated it would take the matter under advisement and the decision on that matter
would be part of the court’s ruling.
The district court issued a judgment on the quiet title action on August 2,
2006. The court found plaintiffs had established ownership in the property. The
court did not specifically rule on the pending motion to conform to the proof and
did not mention boundary by acquiescence.
The court discussed adverse
possession and stated, “The Court therefore does not find that the Defendant’s
efforts to utilize the fence as the demarcation line by adverse possession have
been successful.”
The district court entered a decree quieting title in plaintiffs. The court
stated, “All claims raised by the Defendant as to the subject property are deemed
failed and the Defendant therefore has no interest or rights to the subject parcel.”
Koehn was assessed treble damages for removing two trees from the disputed
area. Koehn did not file any post-trial motions. He appealed the decisions of the
district court.
II.
Standard of Review
Our review of an action to quiet title is de novo. Iowa R. App. P. 6.4;
Garrett v. Huster, 684 N.W.2d 250, 253 (Iowa 2004). In equity cases, especially
when considering the credibility of witnesses, we give weight to the fact findings
of the district court, but are not bound by them. Iowa R. App. P. 6.14(6)(g).
III.
Merits
On appeal, Koehn asserts that he established a boundary by
acquiescence under section 650.14. Plaintiffs respond that this issue has not
4
been preserved for our review because it had not been ruled upon by the trial
court, and Koehn did not file a post-trial motion.
A claim of boundary by acquiescence may be brought as a defense in an
action to quiet title. Ivener v. Cowan, 175 N.W.2d 121, 122 (Iowa 1970). A
defendant has the burden of proving an affirmative defense, such as
acquiescence. Kennedy v. Oleson, 251 Iowa 418, 421, 100 N.W.2d 894, 896
(1960). A party’s failure to plead an affirmative defense normally results in its
waiver, unless the issue is tried by the consent of the adverse party. Dutcher v.
Randall Foods, 546 N.W.2d 889, 893 (Iowa 1996).
Iowa Rule of Civil Procedure 1.457 permits a party to make a motion to
amend the pleadings to conform to the evidence, even after judgment in a case.
An amendment to conform to the proof should not be allowed if the amendment
will substantially change the claims before the court.
Tomka v. Hoechst
Celanese Corp., 528 N.W.2d 103, 108 (Iowa 1995). A court’s decision to grant a
motion to amend to conform to the evidence will be reversed only upon a clear
abuse of discretion. Scott v. Grinnell Mut. Reins. Co., 653 N.W.2d 556, 561
(Iowa 2002).
In this case, the district court did not specifically rule on the motion to
amend to conform to the evidence. It appears, however, that the court must
have granted the motion, but believed the issue raised as an affirmative defense
was adverse possession.
The court discussed the elements of adverse
possession, which are that a party claiming title by adverse possession must
5
establish hostile, actual, open, exclusive and continuous possession, under claim
of right or color of title, for at least ten years. See Garrett, 684 N.W.2d at 253.
The elements necessary to show a boundary by acquiescence under
section 650.14 are not the same. To prove a boundary by acquiescence, a party
must show by clear evidence that two adjoining landowners or their predecessors
in title have recognized and acquiesced in a boundary line for a period of ten
years. Tewes v. Pine Lane Farms, Inc., 522 N.W.2d 801, 806 (Iowa 1994).
"It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal." Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The district
court did not discuss whether a boundary had been established by acquiescence
nor did it mention the elements of that doctrine. Even assuming that issue was
before the court, a party must file a post-trial motion to preserve error on the
claims which the court failed to address. Stammeyer v. Division of Narcotics
Enforcement, 721 N.W.2d 541, 548 (Iowa 2006). A “party must still request a
ruling from the district court to preserve error for appeal on an issue presented
but not decided.” Meier, 641 N.W.2d at 539.
We conclude Koehn has failed to preserve for our review the issue of the
affirmative defense of boundary by acquiescence. We affirm the decision of the
district court.
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.
