When a boundary dispute arises between neighboring property owners, the legal principle of “adverse possession” is often tossed around. Adverse possession is a legal doctrine whereby ownership of property can change without payment and against the will of the “true” owner. A person claiming title to land based on adverse possession must establish by clear and positive proof all of the elements of hostile, actual, open, exclusive and continuous possession, under claim of right or color of title for at least ten years. C.H. Moore Trust Estate v. City of Storm Lake, 423 N.W.2d 13, 15 (Iowa 1988).
A claim of adverse possession does not often fit a particular factual situation. Boundary disputes may also be resolved under the doctrine of “acquiescence.” Boundary by acquiescence may apply when adjoining landowners, or their predecessors in title, are both mistaken about the location of their actual mutual property line. If it is discovered that the boundary line that has been used by both parties for at least ten years is not the true legal boundary, and one owner had been mistakenly possessing the other's land, the party in possession may have a valid claim of title to the portion of property under this theory of boundary by acquiescence. Iowa Code Section 650.14 states, “[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, such recognized boundaries and corners shall be permanently established.” The boundary line that is acquiesced by the parties must be known, definite, and certain, or known and capable of ascertainment. The line must have certain physical properties such as visibility, permanence, stability and definite location. Heer v. Thola, 613, N.W.2d 658, 662 (Iowa 2000).
The relatively recent Iowa case of Post v. Barnette demonstrates a party's failure to establish boundary by acquiescence. In Post, the neighboring owners' boundary dispute involved the location of a pine tree. When Post undertook a project to construct a fence around his property, the neighbors disagreed about the location of the common boundary line – one neighbor believe that the pine tree was the boundary line, the other disagreed. Post commissioned a survey which established the boundary as being several feet south of the pine tree located between the two properties, with the pine tree located entirely on Barnette's property.
Post then filed an action against Barnette claiming trespass and nuisance. Barnette filed a claim seeking to establish title to the portion of the property between the pine tree and the boundary line shown by the survey. Post asserted that the pine tree was the true boundary line and that Barnette had acquiesced in that as a boundary line in the past. The trial court determined that Post failed to establish a definite line as required for a finding of boundary by acquiescence and ruled in favor of Barnette.
On appeal, the Court affirmed that Post had failed to establish acquiescence as there was not clear evidence of a definite and certain line capable of ascertainment. Even though both parties and their predecessors mowed their lawns up to various points around the pine tree at different times, there was no visibly clear line or markings such as a fence. The pine tree alone was not sufficient to establish a clear and definitive boundary line. Even if Barnette did not realize that his actual property line was as far south as the survey showed, Post was required to show clear evidence of definite and certain line capable of ascertainment in order to establish boundary by acquiescence. Thus, the survey boundary remained the legal boundary line.
Post v. Barnette, 2007 WL 3376749 (Iowa Ct. App. 2007)