                      IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1638
                             Filed August 17, 2016


PATSY C. ALBERT, in her capacity as the
Trustee of the PATSY C. ALBERT REVOCABLE TRUST,
      Plaintiff-Appellant,

vs.

DELBERT CONGER and RUTH CONGER,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Keokuk County, Annette J.

Scieszinski, Judge.




      A landowner appeals the district court’s ruling finding her neighbors had

acquired a portion of her land by acquiescence. AFFIRMED.




      Chandler L. Maxon and R. Ronald Pogge of Hopkins & Huebner, P.C.,

Des Moines, for appellant.

      John N. Wehr, Sigourney, for appellees.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
                                          2


DOYLE, Judge.

       Patsy Albert1 and her longtime neighbors, Delbert and Ruth Conger,

dispute the boundary lines of their adjoining properties. Following a trial to the

district court in equity, the court found the Congers had acquired a part of Albert’s

property—not legally described or included in the Congers’ deed—by

acquiescence. The court then quieted title in the Congers’ favor; Albert now

appeals.

       I. Standard of Review.

       First, we must determine the proper standard for review of the district

court’s determination. The Congers’ counterclaims asserted various theories for

quieting title in their favor, such as acquisition of the disputed property by way of

adverse possession or the doctrine of acquiescence. “Adverse possession is

established by a quiet title action, an equitable proceeding under [Iowa Code]

chapter 649” (2015), and our review of an adverse-possession claim on appeal is

de novo. Sille v. Shaffer, 297 N.W.2d 379, 380 (Iowa 1980). However, the

doctrine of acquiescence is found in chapter 650, which specifies that an action

brought under that chapter “is a special action.” See Ollinger v. Bennett, 562

N.W.2d 167, 170 (Iowa 1997); see also Iowa Code §§ 650.4, .14.                Section

650.15, titled “Appeal,” provides: “There shall be no appeal in such proceeding,

except from final judgment of the court, taken in the time and manner that other

appeals are, and heard as in an action by ordinary proceedings.” (Emphasis

added.) Consequently, though we generally “hear a case on appeal in the same


1
  We refer to Albert as the owner of her property, though the property was transferred
into her trust, which was thereafter substituted as the party in interest.
                                             3

manner in which it was tried in the district court,” Johnson v. Kaster, 637 N.W.2d

174, 177 (Iowa 2001), our appellate standard of review of an acquiescence claim

is statutorily defined as correction of errors at law,2 see Iowa Code § 650.15. In

any event, we will review the district court’s disposition of this claim de novo for

two reasons: (1) the parties appear to be in agreement that the claims were

equitable and tried in equity and (2) our ultimate resolution of this issue is the


2
  Yet, we recognize the Iowa Supreme Court and this court have applied both standards
of review on appellate review; in fact, the issue of whether a boundary-acquiescence
claim is reviewed on appeal de novo or for correction of errors at law dates back to at
least 1890. See, e.g., Ollinger, 562 N.W.2d at 170 (hearing case “on appeal as an
ordinary action” and reviewing for “assigned errors of law”); Tewes v. Pine Lane Farms,
Inc., 522 N.W.2d 801, 804 (Iowa 1994) (same); Ivener v. Cowan, 175 N.W.2d 121, 122
(Iowa 1970) (“Although the scope of our review differs with the nature of the action,
whether it is statutory under section 650.6 . . . or in equity, the rules of law are the
same.”); Brown v. McDaniel, 156 N.W.2d 349, 350 (Iowa 1968) (“Although in its findings
the trial court said this was an action in equity, we note that it was brought under chapter
650 of the 1966 Code, which provides that such actions are special actions and on
appeal are to be heard as ordinary actions. It appears that this case was tried as a
special proceeding and it comes to us on assigned errors as in a law action.” (citations
omitted)); Dillon v. Chicago & Nw. Ry. Co., 124 N.W.2d 543, 544 (Iowa 1963) (“Under
section 650.15 this appeal is heard as in an action by ordinary proceedings. The appeal
is not de novo.”); Santee v. Uhlenhopp, 169 N.W. 321, 321 (Iowa 1918) (questioning the
proper standard of review and finding it was not de novo, but noting it was unclear if the
“case was actually tried below on the equity side”); Yocum v. Haskins, 46 N.W. 1065,
1066 (Iowa 1890) (same); Mayhugh v. Dea, No. 15-0142, 2015 WL 5576950, at *2 (Iowa
Ct. App. Sept. 23, 2015) (finding the acquiescence claim should be reviewed for
correction of errors at law even though case had an equity designation and the parties
asserted our review was de novo); Gartin v. Farrel, No. 13-0061, 2014 WL 69662, at *4
(Iowa Ct. App. Jan. 9, 2014) (finding a district court’s acquiescence ruling should be
reviewed on appeal for correction of errors at law, even though the underlying case was
tried in equity); Voga v. Younes, No. 13-0657, 2013 WL 6097977, at *2 (Iowa Ct. App.
Nov. 20, 2013) (same). But see Sille, 297 N.W.2d at 381 (“Since this matter was tried by
the court in equity it will be so considered by us and reviewed de novo.”); Ferrari v.
Meeks, 181 N.W.2d 201, 203 (Iowa 1970) (“In this de novo review we give weight to the
trial court’s findings of fact but are not bound by them.”); Mapes v. U.S. Bank Nat’l Ass’n,
N.D., No. 14-1770, 2015 WL 6509426, at *2 (Iowa Ct. App. Oct. 28, 2015) (applying a de
novo review because the parties agreed the matter was tried in equity); McMahon v.
Rousselow, No. 14-0421, 2015 WL 576021, at *1 n.1 (Iowa Ct. App. Feb. 11, 2015)
(“However, the parties tried this matter as one in equity, and therefore, our review is de
novo.”); Eddy v. Perrine, No. 13-1157, 2014 WL 2431416, at *1 (Iowa Ct. App. May 29,
2014) (same); Paseka v. Weaver Farms L.L.C., No. 03-0417, 2004 WL 573788, at *2
(Iowa Ct. App. Mar. 24, 2004) (finding “the statutory formalities of a chapter 650 action
were not observed” and the matter was tried in equity, requiring a de novo review).
                                         4


same under a de novo review as it would be if we were reviewing for correction

of errors of law. See City of Davenport v. Shewry Corp., 674 N.W.2d 79, 82

(Iowa 2004) (choosing to review that case de novo for these reasons).

       But, a de novo review “does not mean [the appellate courts] decide the

case in a vacuum, or approach it as though the trial court had never been

involved.” Davis-Eisenhart Mktg. Co. v. Baysden, 539 N.W.2d 140, 142 (Iowa

1995). Rather, even in a de novo appellate review, “great weight” is accorded

the findings of the trial court where the testimony is conflicting. See id. (citation

omitted). This is because the trial court is in a far better position to weigh the

credibility of witnesses than the appellate court. See id.; Birusingh v. Knox, 418

N.W.2d 80, 82 (Iowa Ct. App. 1987). Unlike this court, the trial court has a front

row seat to observe the “witness’s facial expressions, vocal intonation, eye

movement, gestures, posture, body language, and courtroom conduct, both on

and off the stand,” as well as the witness’s “nonverbal leakage” demonstrating

“[h]idden attitudes, feelings, and opinions” that are not reflected in the cold

transcript this court reviews. Thomas Sannito & Peter J. McGovern, Courtroom

Psychology for Trial Lawyers 1 (1985). Consequently, the trial judge is in the

best position to assess witnesses’ interest in the trial, their motive, candor, bias,

and prejudice. See State v. Teager, 269 N.W. 349, 351 (Iowa 1936).

       II. Acquiescence.

       Pursuant to section 650.14, a boundary line contrary to a property’s legal

description may be established “[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.”         “Acquiescence exists when both parties
                                          5


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.” Ollinger, 562 N.W.2d at 170 (citation omitted).

       “[A]cquiescence must, in large part, be determined in light of the factual

situation presented.” Davis v. Hansen, 224 N.W.2d 4, 6 (Iowa 1974). Though

the “party seeking to establish a boundary other than a survey line must prove it

by ‘clear’ evidence,” Egli v. Troy, 602 N.W.2d 329, 333 (Iowa 1999), some overt

act is not required in order to establish acquiescence, see Ollinger, 562 N.W.2d

at 171. Moreover, the “mere denial of knowledge of the existence of a fence or

some other marker demarcating a boundary, or of a claim of ownership thereto

will not defeat the claim of acquiescence to the boundary ‘if the circumstances

are such that [the landowner] should be required to take notice thereof.’” Tewes,

522 N.W.2d at 807 (alteration in original) (citation omitted).

       “Acquiescence may be inferred by the silence or inaction of one party who

knows of the boundary line claimed by the other and fails to dispute it for a ten-

year period.” Egli, 602 N.W.2d at 333. “It is sufficient knowledge if both parties

are aware of the fence or other line and of the fact that both adjoining landowners

are, for the required period, treating it as a boundary.” Sille, 297 N.W.2d at 381.

       III. Disputed property.
                                       6




      IV. Discussion.

      The land in dispute is owned by Albert and included in her deed’s legal

description. It is triangular and abuts the Congers’ property on its western and
                                           7

northern boundary.       See figs. A & B.3     The properties also abut a county

highway, which has been moved and widened over the years.

         Albert bought her property in 1972; the Congers bought theirs in 1993. In

1999, the Congers had vinyl fencing installed. The relevant portion of the vinyl

fence runs south and ends at what “looks like an end post” of a metal woven-wire

fence that is at least fifty years old.

         In or around 2012, the county highway next to the parties’ properties was

repaved. Additionally, Albert updated her estate planning and transferred her

property into a trust.       Around the time of the project’s conclusion, Albert

requested a survey to determine her property’s west boundary line. The survey

evidenced that the Congers had built their fence and driveway upon Albert’s

property. Albert made an offer for the Congers to purchase the property, and the

Congers declined, explaining that they owned the property.

         Ultimately, Albert filed suit seeking to have title quieted in her favor, and

the Congers filed counterclaims, seeking the same and asserting they had

acquired the property by adverse possession or acquiescence.             Trial to the

district court was held in August 2015, and Albert and the Congers testified, as

well as the prior owners of the Congers’ property.

         Albert testified that she had engaged in several conversations with Delbert

over the years about the boundary between their properties. She stated she told

Delbert his fence was on her property.         She also testified that the Congers

mowed that area, but over time the Congers kept moving further south and



3
    Figures A and B have been edited.
                                          8


mowing more of Albert’s property. However, she admitted she took no action

after the Congers had the fence or drainage tile installed.

       Conversely, Delbert testified he and his wife thought that piece of ground

was part of the property set forth in their property’s deed, and he had maintained

and mowed that land since 1993. He testified that they always claimed the land

as their own and that no one ever told them otherwise until after Albert had the

survey completed.

       Following the trial, the district court entered its ruling quieting title to the

disputed land in favor of the Congers. The court found Albert had acquiesced

that portion of her property to the Congers. Factually, the court summarized:

               In addition to the frequent and obvious acts of the Congers
       in mowing over Albert’s land through the years, there were
       successive, equally apparent demonstrations of their belief that
       they owned the area incorporated into their lawn. Albert’s legal
       silence in the wake of each of these acts is noteworthy, but her
       willingness to allow the sum without protest is emblematic of an
       actual acquiescence to the Congers’ boundary practice.
               Over many years the Congers sponsored a march of
       improvements, in all respects acting as though they owned all the
       land along the road, north of Albert’s field drive.
               ....
               The Congers’ attitude is not, and has never been, one of
       arrogant land conquest.          Consistent with their testimonial
       demeanors, [the Congers] sincerely believed from 1993 until
       sometime circa 2012 that their yard usage comported with their fee
       title. They had lived in the location of this property since the mid-
       1960s, and it simply appeared that way as they observed things in
       the neighborhood and as their personal experiences evolved. To
       the extent that there was a mention by Albert, on occasion, that
       they were using her land, it took on an anecdotal nature, as she
       apparently acquiesced in the boundary that was being used by all.
       There was never any mention or effort to fence, no competing
       gesture of maintenance, and no legal action or follow-up to the
       casual conversations.
                                          9


Implicit in this ruling is the conclusion the court, as the trier of fact, found the

Congers’ version of events to be more credible. See Norland v. Iowa Dep’t of

Job Serv., 412 N.W.2d 904, 909 (Iowa 1987); see also Schutjer v. Algona Manor

Care Ctr., 780 N.W.2d 549, 560-61 (Iowa 2010) (working “backward” to ascertain

implicit credibility findings in workers’ compensation commissioner’s decision).

       Upon our review, we agree with the district court’s assessment. Given the

longtime use and care of the property by the Congers, including the installation of

a fence, Albert should have been alerted she needed to take action and dispute

their use of her land if she believed they had encroached upon her property. The

property was not hidden from view, like many boundary cases, where neither

landowner had done anything with the disputed land over the years. Moreover,

the Congers’ use was open and available for all to see; they installed a fence

over twenty years ago and continued to maintain the land. Albert took no action

concerning the property until 2012, and even then, the Congers continued to care

for the property. Here, Albert’s inaction, coupled with the Congers’ use of the

property for at least twenty years, establishes a clear case of acquiescence of a

boundary as contemplated by Iowa Code section 650.14.             Consequently, we

affirm the district court’s ruling quieting title to the disputed land in favor of the

Congers.

       V. Conclusion.

       Because we, like the district court, find Albert acquiesced the portion of

her property used by the Congers for more than twenty years, we affirm the

court’s ruling quieting title in the Congers’ favor. Costs on appeal are assessed

to Albert.
                                          10




       VI. Postscript.

       We include this postscript to address two other issues: (1) references to

the exhibits at trial through examination of witnesses and (2) compliance with

appellate rules of procedure. This court’s mandate is to justly decide a high

volume of appeals. See Iowa Ct. R. 21.11. The record at trial and the electronic

appellate appendix submitted here did not facilitate that undertaking.

       A. References to Exhibits at Trial, Especially in Land Disputes.

       This case is about the boundary line between properties; maps, plats,

photographs,    and    other   identifying     exhibits   are   necessarily   involved.

Visualization of the subject matter of a land or property dispute is critical to a full

understanding of the dispute. Demonstrative exhibits are great aids at trial—the

attorneys place them before the judge or jury so that the fact-finder can visualize

the facts of the case. But a cold transcript provides no visual reference to what

the witness is indicating unless it is specifically identified in the record.      For

instance, counsel in this case asked, “[W]here did they install that?” The witness

answered, “Just—it’s right here. Right next to this right here . . . . Well, it’s back

here right in here.”     Obviously the witness was able to make gestures and

indications for the benefit of the trial court, but such ephemeral demonstrations

preserve nothing for our de novo review. Another example:

              Q. And just generally speaking, could you explain to us
       where Mrs. Albert’s property is in this drawing? A. It’s the triangle
       portion right there.
              Q. So if you could just identify the western boundary?
       A. Sure. It’s this line right here.
              ....
                                         11


              Q. And just so I make sure I understand what we’re claiming
       as the post, can you just point it to me—point it out to me in the
       picture? A. Right here.

Both parties asked witnesses these types of questions without having the witness

markup or write on the exhibit in order to preserve and clarify the record for

appellate review. In some instances, there was not even a reference to which

exhibit the witness was describing. Even the court, at times, was unspecific:

              THE COURT: I need to be sure I know where the witness is
       on the map. A. Yes. Right there.
              THE COURT: The record should reflect that [the witness]
       has pointed to the area he was referencing for the court’s
       orientation.

       We do not mention this out of a fit of crankiness. We realize preserving

the record for appellate review can be cumbersome and frequently interrupts the

flow of the trial. However, a record must be made at trial for this court to review.

Attorneys, if they believe an exhibit and a witness’s testimony about it is relevant,

must make sure what the witness is indicating is specified in the record.

       B. Appellate Court Rules.

       Parties’ compliance with appellate rules of procedure promotes judicial

efficiency, thus aiding this high-volume court in doing its work to meet its

mandate.     Consequently, the parties’ compliance with rules governing the

preparation of appendices is imperative.

       Iowa Rule of Appellate Procedure 6.905(6) requires that the parts of the

record of proceedings relevant to the issues raised in the appeal “shall be

included verbatim on consecutively numbered pages and in the chronological

order in which the proceedings occurred.” In their final briefs, the parties must

reference to parts of the record with citations to the page or pages of the
                                        12

appendix at which those parts appear. See Iowa R. App. P. 6.904(4)(b). Here,

the parties’ briefs did cite to a paginated appendix, but inexplicably, the appendix

electronically filed with this court was not paginated. We assume this was a

mere oversight.

       Additionally, our rules require that the omission of any transcript pages

shall be indicated by a set of three asterisks at the location on the appendix page

where the matter has been omitted. Iowa R. App. P. 6.905(7)(e). This was not

done. While the noted infraction may seem trivial, the violated rule is not just

some rigmarole designed to create more work for the appellate lawyer or the

lawyer’s staff.   These visual clues alert us to a break in the continuity of a

witness’s testimony, thus facilitating our reading and understanding of the scads

of transcript pages we must review each day.

       In noting these rules violations, we do not in any way single out the

parties’ attorneys, for we have made similar observations in countless appeals.

We all make mistakes. All we suggest is that parties on appeal exercise a little

more care in producing their appendices.

       AFFIRMED.
