IN THE SUPREME COURT OF IOWA 

No. 71 / 05-1767 

Filed August 10, 2007 

JERRY D. LONGFELLOW, 

Appellant, 

vs. 

HAL SAYLER, 

Appellee. 

Appeal from the Iowa District Court for Taylor County, John D. Lloyd, 

Judge. 

 A landowner appeals a decision of the fence viewers. REVERSED 

AND CASE REMANDED. 

Richard L. Wilson of Wilson & Spurrier, P.C., Lenox, and Richard O. 

McConville of Coppola, Sandre, McConville & Carroll, P.C., West Des 

Moines, for appellant. 

Stuart D. Nielsen and Stephanie M. Nielsen of Nielsen & Nielsen, P.C., 

Corning, for appellee. 
2

WIGGINS, Justice. 

 A landowner and his neighbor had a dispute over an agreement to 

erect and maintain a partition fence between their properties. The 

landowner requested the fence viewers determine whether the neighbor’s 

fence complied with the agreement. The fence viewers determined the fence 

complied with the agreement. The landowner appealed the fence viewers’ 

decision to the district court. The district court agreed with the fence 

viewers and entered judgment for the neighbor. On our review, we find as a 

matter of law the record establishes the neighbor’s fence did not comply 

with the agreement. Therefore, we reverse the judgment of the district court 

and remand the case for the district court to enter judgment in favor of the 

landowner consistent with this opinion. 

 I. Background Facts. 

Jerry Longfellow and Carolyn Sayler owned adjoining parcels of land 

sharing a boundary fence line. Since 1955 Longfellow has operated a cattle 

and row crop farm on his property. Originally, there was a fence between 

the Longfellow and Sayler farms. However, the fence was not adequate to 

keep cattle from mixing between the Sayler and Longfellow operations. Due 

to these problems, Longfellow and Carolyn Sayler entered into a voluntary 

fence division agreement. Longfellow’s attorney drafted the agreement. The 

parties signed the agreement and recorded it with the Taylor county 

recorder on September 30, 1977. 

After providing the legal description for the Longfellow and Sayler 

plots, the agreement defines the duties of each party. The agreement states 

for the common fence lying between the Longfellow and Sayler parcels, 

Longfellow “shall have the responsibility for the construction, maintenance 

and repair of the North 80 rods of such common fence” and Sayler “shall 
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have the responsibility for the construction, maintenance and repair of the 

South 80 rods of the common fence.” The agreement also provides: 

that both parties are to have their portion of said fences so 

erected and/or repaired and maintained on or before 

December 31, 1977, and thereafter to so maintain the stated 

portions assigned to such party as per this Agreement. 

Under the agreement, Longfellow and Carolyn Sayler 

agreed that should either party bring all of their portion of the 

fence to a tight fence condition as defined by Section 113.20 of 

the 1977 Code of Iowa, that the other party hereto shall bring 

all of their portions of such fence to such tight fence condition 

within ninety days. 

Section 113.20 of the 1977 Code defined a tight fence. It stated: 

All tight partition fences shall consist of: 

1. Not less than twenty-six inches of substantial woven wire 

on the bottom, with three strands of barbed wire with not less 

than thirty-six barbs of at least two points to the rod, on top, 

the top wire to be not less than forty-eight inches, nor more 

than fifty-four inches high. 

2. Good substantial woven wire not less than forty-eight 

inches nor more than fifty-four inches high with one barbed 

wire of not less than thirty-six barbs of two points to the rod, 

not more than four inches above said woven wire. 

3. Any other kind of a tight partition fence, which in the 

opinion of the fence viewers, is equivalent thereto. 

Iowa Code § 113.20 (1977).1 Longfellow and Carolyn Sayler agreed the 

fence agreement should be construed as a covenant and as binding against 

the parties and their grantees, executors, administrators, heirs, devisees, 

successors, or assigns. 

Carolyn Sayler passed away and her son, Hal Sayler (Sayler), the 

defendant in this action, purchased the Sayler farm. Sayler now represents 
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all interests in the real estate described in the fence agreement. When 

Sayler purchased the farm, he knew there was a fence agreement between 

the Sayler farm and the Longfellow farm. Sayler admits the agreement was 

and is a covenant running with the land and is binding on him. 

Longfellow’s fence is constructed of thirty-nine-inch woven wire, with 

two barbed wires on top and one barbed wire on the bottom of the fence. 

Longfellow did not offer any evidence about the condition of the Sayler fence 

prior to Sayler’s purchase of the farm. The photographs entered into 

evidence show the old Sayler fence had three barbed wires and did not 

contain any woven wire. It is not clear from the record when the old Sayler 

fence was built or what the condition of the fence was in 1977 when the 

fence agreement was recorded. 

After Sayler acquired the property, Longfellow approached Sayler and 

asked him to bring his fence to a tight condition. Sayler told Longfellow he 

was only going to install a barbed-wire fence because Sayler thought a tight 

fence was too expensive. Sayler testified he did not want to put a wovenwire fence in because a woven-wire fence is more difficult to maintain. 

Longfellow sent Sayler a letter through the sheriff’s office requesting 

Sayler to bring his fence to a tight condition. Longfellow also sent a notice 

to the township trustees about the dispute. After Sayler received 

Longfellow’s letter he contacted the township trustees and inquired whether 

he was required under the agreement to build a woven-wire fence or if a 

five-barbed-wire fence would conform to the agreement. 

Sayler contends the trustees informed him a fence constructed of five 

strands of barbed wire would suffice under the agreement. Sayler went 

 

1All references to chapter 113 are to the 1977 Code of Iowa. In 1993 the Code 

editor transferred chapter 113 to chapter 359A. 
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ahead, and in the face of Longfellow’s objections, built the five-barbed-wire 

fence with posts at approximately every ten or twelve feet of the fence line. 

II. Prior Proceedings. 

 By sending the letter to Sayler and notifying the township trustees, 

Longfellow invoked the powers of the fence viewers to determine the fence 

controversy. Iowa Code §§ 359A.3, .4, .9 (2003).2 Three trustees, acting as 

fence viewers, came out to the fence line and viewed the fence. The fence 

viewers issued an order finding the Sayler fence to be lawful and tight. The 

fence viewers assessed Longfellow with the costs of the fence-viewing 

proceeding. 

 Longfellow appealed the fence viewers’ decision to the district court. 

As an affirmative defense, Sayler asserted he complied with the fence 

agreement because the fence viewers determined his fence was lawful and 

tight. 

Prior to trial Longfellow filed a motion in limine claiming the order of 

the fence viewers was not admissible at trial. The district court sustained 

the motion. At trial the district court reversed itself and allowed Sayler to 

enter the order of the fence viewers. The district court changed its ruling 

because it now understood the case involved “an interpretation of a fence 

agreement already in existence which incorporates code sections which 

specifically provides as one option a finding by the trustees of what is an 

equivalent tight fence.” Accordingly, the district court considered the order 

relevant. 

 The district court found the agreement between the parties clearly 

refers to Code section 113.20. The court further found although Sayler’s 

fence did not comply with either subsection 113.20(1) or (2), it did comply 

 

2All references to chapter 359A are to the 2003 Code of Iowa.
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with subsection 113.20(3), which allows the fence viewers to determine 

whether a fence is equivalent to a tight fence. 

Further, because the district court found “the Sayler fence has never 

been anything but a barbed-wire fence” and, “for 27 years, [Longfellow] did 

not seek to enforce the tight fence requirement,” it concluded Longfellow 

was precluded from enforcement of the tight fence requirement by the 

doctrines of waiver and estoppel by acquiescence. The district court 

dismissed Longfellow’s petition and taxed all costs to him. 

 Longfellow filed a motion to amend or enlarge the findings of fact and 

conclusions of law. The district court denied Longfellow’s motion. 

III. Issues. 

 Longfellow appeals claiming the district court erred: (1) in admitting 

the order of the fence viewers; (2) in finding the Sayler fence was in 

compliance with the agreement; and (3) by applying two affirmative defenses 

not pled by Sayler. Sayler agreed he did not plead either of the affirmative 

defenses and therefore, he waived these issues. Consequently, we will only 

address the first two issues raised by Longfellow. 

IV. Standard of Review. 

Although the clerk docketed this case in equity, Longfellow filed it as 

an appeal of the fence viewers’ decision. In his appeal Longfellow requested 

the decision of the fence viewers be reversed and the court to enforce the 

agreement. The standard of review on appeal is not governed by how the 

clerk docketed the case, but rather by how the parties tried the case in the 

district court. Henning v. Security Bank, 564 N.W.2d 398, 399 (Iowa 1997). 

The parties tried the case as an appeal from the fence viewers’ 

decision, which necessarily included an interpretation of the agreement. An 

appeal from a decision of the fence viewers is triable as a law action. Moore 
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v. Short, 227 Iowa 380, 381, 288 N.W. 407, 408 (1939). Therefore, we 

review an appeal from the district court’s decision in a fence-viewing case 

for the correction of errors at law. Duncalf v. Ritscher Farms, Inc., 627 

N.W.2d 906, 908 (Iowa 2001). Thus, we are bound by the district court’s 

well-supported factual findings, but not by its legal conclusions. Falczynski 

v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). 

The construction and interpretation of a contract is generally reviewed 

as a matter of law. Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 

1999). The construction or interpretation made by the district court is not 

binding on us. Id. However, if the district court’s interpretation was 

predicated upon extrinsic evidence, the findings of the court are binding on 

appeal if supported by substantial evidence. Connie’s Constr. Co., Inc. v. 

Fireman’s Fund Ins. Co., 227 N.W.2d 207, 210 (Iowa 1975).

V. Statutory Framework. 

In Iowa there is no common law duty for landowners to fence their 

property. Jacobs v. Stover, 243 N.W.2d 642, 644 (Iowa 1976) (citing cases). 

Instead, the Iowa legislature has created two circumstances in which a 

landowner is required to erect and maintain a partition fence. 

 First, a landowner is required to erect and maintain a partition fence 

when an agreement is reached between adjoining landowners. Iowa Code

§ 359A.12. The Code requires the agreement to be in writing,3 describing 

each landowners’ land, stating the portion of the partition fence that will be 

erected and maintained by each owner, and describing the parts of the 

fence so assigned. Id. The agreement is to be signed and acknowledged by 

the landowners and recorded in the office of the recorder of deeds of the 

 

3Although the Code requires the agreement to be in writing, this court has enforced 

oral agreements between landowners. See Osgood v. Names, 191 Iowa 1227, 1233, 184 

N.W. 331, 333 (1921) (recognizing an oral partition fence agreement to keep in repair a 

portion of the partition fence). 
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county or counties in which the fence is situated. Id. If the written 

agreement is recorded, the agreement is binding on the makers, their heirs, 

and subsequent grantees. Id. § 359A.13. The parties can also intend the 

agreement to be a covenant that runs with the land. Sexauer v. Wilson, 136 

Iowa 357, 362, 113 N.W. 941, 943 (1907). A written agreement to erect and 

maintain a partition fence is enforceable in district court. 3 Marlin M. Volz, 

Jr., Iowa Practice: Methods of Practice § 46:7, at 336 (2006) [hereinafter 

Volz]. 

Second, under Iowa Code section 359A.1A an adjoining landowner 

can request another adjoining landowner to maintain a partition fence. See

Iowa Code § 359A.1A (“The respective owners of adjoining tracts of land 

shall upon written request of either owner be compelled to erect and 

maintain partition fences, or contribute thereto, and keep the same in good 

repair throughout the year.”). If a conflict arises between the two adjoining 

landowners, the Code provides that one landowner may request the fence 

viewers to determine the controversy. Id. §§ 359A.3, .4. Once an order by 

the fence viewers is recorded, the order is binding on the makers, their 

heirs, and subsequent grantees. Id. § 359A.13. The decision of the fence 

viewers can be appealed to the district court. Id. § 359A.23. 

VI. Analysis. 

A. Procedure employed by Longfellow to enforce the fence agreement.

The fence agreement between Longfellow and Sayler provides: 

should either party bring all of their portion of the fence to a 

tight fence condition as defined by Section 113.20 of the 1977 

Code of Iowa, that the other party hereto shall bring all of their 

portion of such fence to such tight fence condition within 

ninety days. 

Under the doctrine of incorporation, an extrinsic document becomes 

part of the contract by reference to that document in the contract. 
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Hofmeyer v. Iowa Dist. Ct., 640 N.W.2d 225, 228 (Iowa 2001). The doctrine 

of incorporation requires the contract to make a clear and specific reference 

to an extrinsic document to incorporate the document into the contract. In 

re Estate of Kokjohn v. Harrington, 531 N.W.2d 99, 100-01 (Iowa 1995). 

Whether a contract incorporates extrinsic material presents a question of 

law. Hofmeyer, 640 N.W.2d at 228. Statutes and administrative rules can 

become part of a contract under the doctrine of incorporation. See id. at 

229 (holding an administrative rule referred to in the contract became part 

of the contract under the doctrine of incorporation); 11 Richard A. Lord, 

Williston on Contracts § 30:19, at 202 (4th ed. 1999) [hereinafter Williston on 

Contracts] (stating “[w]hen a contract expressly incorporates a statutory 

enactment by reference, that enactment becomes part of a contract for the 

indicated purposes just as though the words of that enactment were set out 

in full in the contract”). 

Here, the fence agreement contained a clear and specific reference to 

section 113.20 of the 1977 Iowa Code. This incorporation created a 

requirement on both parties to bring each party’s portion of the partition 

fence to a tight fence condition as defined by section 113.20. The statutory 

requirements explicitly set forth in subsections 113.20(1) and (2) require the 

fence to be partially made of woven wire. See Iowa Code § 113.20(1), (2) 

(stating “[a]ll tight partition fences shall consist of: (1) . . . substantial woven 

wire . . . [or] (2) [g]ood substantial woven wire . . . .”). 

Sayler admits his fence was made only of barbed wire and did not 

contain woven wire. Therefore, the Sayler fence did not meet the specific 

statutory requirements contained in subsections 113.20(1) and (2). 

Accordingly, the Sayler fence can only comply with the agreement by 

meeting the statutory definition of a tight fence contained in subsection 
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113.20(3). Subsection 113.20(3) requires the fence viewers to view the 

partition fence and determine whether Sayler’s portion of the fence is an 

equivalent tight fence. See id. § 113.20(3) (stating “[a]ll tight partition 

fences shall consist of: . . . (3) [a]ny other kind of a tight partition fence 

which, in the opinion of the fence viewers, is equivalent thereto”). 

Longfellow requested the trustees, acting as fence viewers, to 

determine the fence controversy. The fence viewers visited the partition 

fence, viewed it, and determined the Sayler portion of the fence was lawful 

and tight. 

B. The effect of using the fence viewers to determine the dispute. The 

district court decided in favor of Sayler finding the fence viewers’ 

determination that the Sayler fence was lawful and tight satisfied any 

obligation Sayler had regarding his portion of the fence under the 

agreement. We disagree. 

Under chapter 359A, when there is no written agreement, a party’s 

appeal to the district court of the fence viewers’ decision requires a trial as 

in any other case. Iowa Code § 359A.23. Accordingly, the appeal of a fence 

viewers’ decision is triable at law. Laughlin v. Franc, 247 Iowa 345, 347, 73 

N.W.2d 750, 751 (1955). Either party has the right to demand a trial by 

jury. Moore, 227 Iowa at 381, 288 N.W. at 408. As in all civil trials, the 

rules of civil procedure and the rules of evidence apply. Iowa R. Civ. P. 

1.101; Iowa R. Evid. 5.101. 

When a party requests the fence viewers to settle a dispute under an 

agreement, the decision of the fence viewers is appealable, just as any other 

decision of the fence viewers. See Huber v. Wilkinson, 46 Iowa 458, 459 

(1877). In Huber, the plaintiff claimed he entered an agreement with his 

neighbor requiring his neighbor to build and maintain a fence capable of 
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turning sheep and swine. Id. Instead of bringing an action in district court 

to enforce the agreement, the plaintiff first asked the fence viewers to decide 

the dispute. Id. The fence viewers found in favor of the plaintiff. Id. On 

appeal to the district court, the dispute was settled by a trial anew, rather 

than by enforcement of the fence viewers’ decision. Id. at 459-60. On 

appeal to this court, we affirmed the district court’s judgment to enforce the 

agreement. Id. at 460. 

The fence viewers’ decision is appealable in this case because the 

provisions and procedures of chapter 359A were incorporated into the 

parties’ agreement. See Miller v. Marshall County, 641 N.W.2d 742, 

751 (Iowa 2002) (stating there is a presumption that applicable statutes are 

incorporated into parties’ contracts); Williston on Contracts, at 203 (stating 

“the incorporation of applicable existing law into a contract does not require 

a deliberate expression by the parties”). This procedure is consistent with 

the legislative scheme enacted regarding the use of fence viewers to settle 

disputes. See Iowa Code § 359A.23; Laughlin, 247 Iowa at 347, 73 N.W.2d 

at 751. 

In a trial held on an appeal from a fence viewers’ decision the finder of 

fact is required to determine anew any issues generated regarding the 

division, construction, repair, or maintenance of the fence in question. 

Volz, at 347. If the fence viewers can find a fence to be equivalent to a tight 

fence under subsection 113.20(3), the finder of fact is required to make an 

independent determination whether the fence is equivalent to a tight fence 

at the district court trial. It is illogical to assume the legislature would 

make the decision of the fence viewers binding if a party requests the fence 

viewers to settle a dispute under a written agreement, but non-binding 

when a party requests the fence viewers to settle a dispute when there is no 
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written agreement. 

In this case, the district court found “[t]he fence viewers determined 

that the 5-strand barbed-wire fence was both ‘lawful’ and ‘tight.’ Thus, the 

fence complies with the clear language of the agreement.” Clearly, the 

district court found in favor of Sayler without making independent factual 

findings about the fence and merely accepted as binding the findings of the 

fence viewers. We find this was error. On an appeal of a fence viewers’ 

decision, the district court is required to make its own factual findings 

regarding the division, construction, repair, or maintenance of the fence in 

question. Accordingly, the district court should not have relied on the fence 

viewers to be the ultimate arbitrators of this partition fence dispute. 

C. Admissibility of the fence viewers’ decision. It has long been the 

law of this state that in an appeal of a fence viewers’ decision, their decision 

is not admissible at trial in the district court. Smith v. Ellyson, 137 Iowa 

391, 394, 115 N.W. 40, 41 (1908). The reason for this rule is to allow the 

finder of fact to determine the dispute solely based on the evidence admitted 

at trial. Therefore, the district court erred in admitting the decision of the 

fence viewers into evidence and treating it as the final decision settling the 

dispute between the parties. 

D. Whether the evidence supports the district court’s finding that the 

Sayler fence complied with the terms of the fence agreement. The district 

court has the duty to determine the facts based on the evidence admitted at 

trial. Therefore, we must determine whether substantial evidence supports 

these findings. 

The fence agreement incorporated section 113.20’s definition of a 

tight fence into the agreement. The 1977 Code distinguishes a tight fence 

from a lawful fence. To qualify as a lawful fence under the 1977 Code, the 
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fence is only required to have rails, boards, or wire fastened between the 

fence posts. Iowa Code § 113.18. On the other hand, the 1977 Code 

requires a tight fence to have substantial woven wire and barbed wire 

between the posts. Id. § 113.20. The difference between a tight fence and a 

lawful fence under the 1977 Code is that a tight fence contains a physical 

barrier of woven wire whereas a lawful fence does not. The 1977 Code also 

provides that any other fence determined to be “equivalent” to a tight fence 

can qualify under the statutory definition of a tight fence. Id. § 113.20(3). 

“Equivalent” means “corresponding or virtually identical esp. in effect or 

function.” Webster’s Third New International Dictionary 769 (unabr. ed. 

2002). Therefore, in order for a fence to be equivalent to a tight fence, it 

must contain some sort of physical barrier corresponding or virtually 

identical in effect or function to the substantial woven wire specification 

described in subsections 113.20(1) and (2). 

The district court found although Longfellow’s fence did not comply 

with the specifications in subsections 113.20(1) or (2), the parties agreed 

Longfellow’s fence is equivalent to a tight fence. The district court also 

found Longfellow’s fence consisted of a combination of woven wire and 

barbed wire. We believe substantial evidence supports finding that 

Longfellow’s fence is equivalent to a tight fence because his fence contains a 

physical barrier corresponding or virtually identical in effect or function to 

the substantial woven wire specification described in subsections 113.20(1) 

and (2). 

Sayler’s fence consisted of five strands of barbed wire equally spaced 

on the posts. This spacing does not provide a physical barrier 

corresponding or virtually identical in effect or function to the substantial 

woven wire specification described in subsections 113.20(1) and (2). 
14

Without an equivalent physical barrier, Sayler’s fence is nothing more than 

a lawful fence. Accordingly, not only do we find substantial evidence does 

not support the district court finding that Sayler’s fence is a tight fence 

under section 113.20, but we also find as a matter of law Sayler’s fence is 

not equivalent to a tight fence. 

Accordingly, we must reverse the judgment of the district court. 

VII. Disposition. 

Because the record in this case establishes as a matter of law that 

Sayler’s fence is not a tight fence under section 113.20, we conclude the 

district court incorrectly entered judgment in favor of Sayler when it should 

have entered judgment in favor of Longfellow. Therefore, we reverse the 

judgment of the district court and remand the case back to the district 

court. On remand the district court shall enter judgment in favor of 

Longfellow for the relief he requested. The judgment should require Sayler 

to bring his fence to a tight condition as defined by section 113.20 of the 

1977 Code of Iowa within ninety days of the judgment, pay all the costs 

associated with the fence viewers’ proceeding, and tax Sayler the costs of 

this action. 

REVERSED AND CASE REMANDED.