                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1963
                           Filed December 21, 2016


JOHN MARKLEY GRAHAM and NANCY GRAHAM,
     Plaintiffs-Appellants,

vs.

JERRY D. MYERS and KIM M. MYERS,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Mahaska County, Daniel P. Wilson,

Judge.



      John and Nancy Graham appeal the district court’s order quieting title in

Jerry and Kim Myers to a strip of disputed land between the parties’ properties.

REVERSED AND REMANDED.




      Nicholas T. Maxwell of Harrison, Moreland, Webber & Simplot, P.C.,

Ottumwa, for appellants.

      Jeffrey A. Smith of Smith Law Firm, Oskaloosa, for appellees.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

       We must decide whether the district court acted equitably in concluding a

strip of land was acquired by property owners through adverse possession and

acquiescence.

I.     Background Facts and Proceedings

       Jerry and Kim Myers owned a piece of property in Oskaloosa on which

they had been living since late 1980. Situated between their driveway and the

crop line of the adjacent property owner was a grassy strip of land. At all times,

the adjacent property owners possessed title to the grassy strip.

       When the Myers moved in, the grassy strip was being maintained with a

tractor mower for “weed control” purposes. Though the Myers knew the strip was

not theirs, they began mowing it with their lawnmower and essentially

maintaining it as part of their lawn. Over the years, they removed a tree, “mowed

off the weeds,” “tilled” the area, added dirt, planted grass seed, installed

landscaping stone, planted flowers, and constructed a building that overlapped

the strip. According to Jerry Myers, “We did whatever it took to keep it kept up,

looking nice.”

       John and Nancy Graham purchased the adjacent property in 1996. They

believed the Myers were encroaching on their land and, in 1999, they had a

survey completed “[t]o establish the boundary line.” The survey confirmed their

ownership of the grassy strip. The surveyor demarcated the boundary with flags

and, later, with posts. The surveyed boundary line matched a boundary line

marked by remnants of a fence. According to an individual who farmed the

property, the old fence was “[p]retty much right where the survey posts are now.”
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       The Grahams placed their land in the conservation reserve program.

Under the program, they were not allowed to mow the property “during primary

nesting season.”    The Grahams repeatedly asked the Myers to discontinue

mowing the grassy strip, without success.

       In 2013, the Myers sent the Grahams a letter asking why their

beautification efforts had “become such an issue.” The Grahams responded with

a written request to “cease-and-desist from coming on or maintaining real estate”

owned by them. They included copies of their real estate deed and survey.

Shortly thereafter, they filed a petition for declaratory judgment alleging the

Myers had “no right, title, or interest in this real estate” and requesting injunctive

relief as well as the costs of removing the items placed upon the grassy strip.

The Myers filed an answer and counterclaim, seeking to have title to the strip

quieted in their names under the doctrines of adverse possession and

acquiescence.

       Following trial, the district court concluded the Myers (1) acquired the

disputed property by adverse possession and (2) established a boundary by

acquiescence. The Grahams filed a motion to enlarge and amend pursuant to

Iowa Rule of Civil Procedure 1.904(2). The district court corrected the legal

description as requested but denied the motion to enlarge.

       The Grahams appealed. Our review is de novo. Iowa R. App. P. 6.907;

Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980).
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II.    Analysis

       A.      Adverse Possession

       The Grahams challenge the district court’s conclusion that the Myers

established ownership of the property by adverse possession. “A party claiming

title by adverse possession must establish hostile, actual, open, exclusive and

continuous possession, under claim of right or color of title for at least ten years.”

C.H. Moore Tr. Estate v. City of Storm Lake, 423 N.W.2d 13, 15 (Iowa 1988).

Our focus is on the “claim of right” element.

       A person seeking title to property under a claim of right must assert the

claim in good faith. Carpenter v. Ruperto, 315 N.W.2d 782, 786 (Iowa 1982)

(noting “good faith . . . is essential to adverse possession under a claim of right”).

In Carpenter, the Iowa Supreme Court concluded the plaintiff failed to satisfy this

standard.     Id. at 785-86.   She and her husband “cleared several feet of the

property to the north, graded it,” “planted grass seed” and “peony bushes,” and

“used the land as an extension of [their] yard.” Id. at 784. They also “installed a

propane tank,” “constructed a dirt bank,” and built a driveway that infringed upon

the land. Id. In finding an absence of good faith, the court reasoned as follows:

       [The plaintiff] knew her lot did not include the cornfield north of it.
       She knew someone else had title to it and she had no interest in it
       or claim to it. This is not a case of confusion or mistake. At the
       time she entered possession of the disputed land, plaintiff knew she
       had no legal right to do so. To say that one can acquire a claim of
       right by merely entering possession would recognize squatter’s
       rights. Possession for the statutory period cannot be bootstrapped
       into a basis for claiming a right to possession.

Id. at 786.
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       This case is virtually indistinguishable from Carpenter. The Myers used

the grassy strip as if it was their own even though they knew it was not. Jerry

Myers’ testimony is instructive:

              Q. So you started mowing that property in 1981? A. Yes.
              Q. And you knew it wasn’t yours in 1981? A. Yes.
              Q. And you took care of it as if it was your own even though
       you knew it wasn’t yours; correct? A. Yes.
              Q. And this whole time from 1981 clear up to 2006 and up to
       today, you knew this was not your property; correct? A. Yes.

On our de novo review, we conclude the Myers’ claim of right to the grassy strip

was not made in good faith. See Goulding v. Shonquist, 141 N.W. 24, 25 (Iowa

1913) (“[T]he defendant knew that he had no title and that he had no claim of

title, and no right whatever to enter into the possession, and his possession was

not in good faith for that reason.”); Clymer v. Shawd, No. 06-1155, 2007 WL

2963957, at *3 (Iowa Ct. App. Oct. 12, 2007) (agreeing with the district court that

the plaintiff “failed to establish the required good faith claim of right”).

Accordingly, the Myers failed to establish a right to the grassy strip by adverse

possession. We reverse the district court’s decision to quiet title to the grassy

strip in the Myers based on adverse possession.

       B.     Boundary by Acquiescence

       The Grahams also challenge the district court’s conclusion that the Myers

established a boundary by acquiescence.         The doctrine of boundaries by

acquiescence 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.” Iowa Code § 650.14 (2013).
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                The meaning of “acquiescence” under section 650.14 is well
         settled. It is the mutual recognition by two adjoining landowners for
         ten years or more that a line, definitely marked by fence or in some
         manner, is the dividing line between them. Acquiescence exists
         when both parties acknowledge and treat the line as the boundary.
         When the acquiescence persists for ten years the line becomes the
         true boundary even though a survey may show otherwise and even
         though neither party intended to claim more than called for by his
         deed.

Sille, 297 N.W.2d at 381.

         There was scant, if any, evidence that the Myers and Grahams mutually

recognized a different boundary than the legal boundary demarcated by the

fence remnants and the survey posts. To the contrary, Jerry Myers stated no

agreement to a different boundary was ever reached:

               Q. It would be accurate, would it not, Mr. Myers, that the
         Grahams have never agreed for you to be the owner of that
         property? A. No.
               Q. And they have never agreed to a boundary line different
         than what the survey line is? A. Correct.
               Q. And no prior owner ever agreed that the boundary line
         should be any different than what is now surveyed? A. Correct.

The Myers nonetheless argue the Grahams “allowed” them to use and maintain

the grassy strip. Assuming the truth of this assertion, acquiescence through use

is insufficient to establish acquiescence in a different boundary. See Croell Redi-

Mix, Inc. v. Baltes, No. 08-0379, 2009 WL 778760, at *5 (Iowa Ct. App. Mar. 26,

2009).

         On our de novo review, we conclude the Myers failed to prove that the

Grahams acquiesced in a boundary other than the legal boundary. We reverse

the district court’s decision quieting title to the grassy area in the Myers based on

acquiescence.
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III.     Disposition

         We reverse the district court’s decision and remand for entry of an order

quieting title to the grassy strip1 in the Grahams.

         REVERSED AND REMANDED.




1
    The area is legally described as:
         Commencing at the Northwest corner of the Southeast Quarter of the
         Southwest Quarter of Section 3, Township 74 North, Range 16 West, of
         the 5th p.m., Mahaska County, Iowa, thence East 31 feet, thence South
         250 feet, thence West 31 feet, thence North 250 feet, to the point of
         beginning.
