IN THE COURT OF APPEALS OF IOWA

No. 19-1593

Filed November 4, 2020

JAMES A. BEHNKE and BARB J. BEHNKE,

Plaintiffs-Appellees/Cross-Appellants,

vs.

MARK FITZPATRICK and SHERYL FITZPATRICK,

Defendants-Appellants/Cross-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Delaware County, Richard D. Stochl, 

Judge.

Adjoining property owners appeal and cross-appeal from the district court’s 

order resolving a boundary dispute. AFFIRMED ON BOTH APPEALS.

Dan McClean of McClean Law Offices, Dyersville, for appellants.

Brian J. Kane and Joseph P. Kane of Kane, Norby & Reddick, P.C., 

Dubuque, for appellees.

Considered by Bower, C.J., and May and Ahlers, JJ.
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BOWER, Chief Judge.

After a December 2016 survey, James and Barb Behnke (Behnke) 

purchased land from Carolyn Hinderman. In 2017, Behnke filed a petition to 

establish the eastern boundary of the property, which lies adjacent to property 

owned by Mark and Sheryl Fitzpatrick (Fitzpatrick). Behnke also asked the district 

court to determine whether a 1955 easement applied, which would allow access 

across Fitzpatrick’s property. Fitzpatrick answered, asserting a fence line, not the 

plat lines, established the boundary by acquiescence and disputing Behnke’s use 

of the easement.

Following trial, the district court ruled, “Fitzpatrick has failed to prove that 

Behnke or their predecessors ever acquiesced in accepting the fence line as the 

actual boundary between the properties. The legal description of parcel [2016-81]

establishes the correct boundary line.” The court found the easement inapplicable. 

Fitzpatrick appeals from the boundary ruling. Behnke cross-appeals from 

the district court’s ruling denying the use of the easement.

Fitzpatrick’s appeal. 

A boundary dispute is a special action tried at law under Iowa Code chapter 

650 (2017). Our review is for errors at law. Tewes v. Pine Lane Farms, Inc., 522 

N.W.2d 801, 804 (Iowa 1994). The findings of fact by the trial court are equivalent 

to a jury verdict, which we will uphold if supported by substantial evidence. Id. 

In order to establish a boundary by acquiescence, Fitzpatrick had the 

burden to prove by clear evidence the two adjoining landowners or their 

predecessors in title recognized and acquiesced in a boundary line for a period of 

ten years. See Iowa Code §§ 650.6, .14; Tewes, 522 N.W.2d at 806 (discussing 
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boundary by acquiescence); Egli v. Troy, 602 N.W.2d 329, 333 (Iowa 1999) (“A 

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

‘clear’ evidence.” (citation omitted)). 

The trial court made these findings:

Based on the survey, the fence line is not the same as the legally 

described property line. Approximately 1.317 of land actually owned 

by Behnke is on the Fitzpatrick side of the fence. The parcel has 

been identified by survey as parcel 2016-81.

The land owned by Fitzpatrick is part of his family farm and 

was owned by his parents and grandparent. The land in dispute is 

crop ground with some timber. Fitzpatrick is a dairy farmer with a 

beef cow herd. The fence line was in place when both Fitzpatrick 

acquired the land from his father [in 2012] and when Behnke bought 

his property in 2017. Prior to Behnke purchasing the land, 

Hinderman was paying the real estate taxes on the small parcel and

Behnke continues to do so today.

In August of 2008, Hinderman[’s husband] had his attorney 

sen[d] a letter to Fitzpatrick’s father when he owned the land that 

informed Mr. Fitzpatrick that the parcel in dispute in this litigation was 

being farmed by Fitzpatrick but was actually owned by Hinderman. 

The letter extended a “license” to Fitzpatrick which allowed him to 

continue to farm the 1.3 acres. The letter further stated that the 

existing fence line was simply a barrier, not a boundary.

The 2008 letter belies Fitzpatrick’s claim that “the adjoining landowners or 

their grantors [had] knowledge of and consented to the [fence line] as the boundary 

line.”1 See Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980). We defer to the 

trial court’s interpretation of the facts because substantial evidence supports its 

finding that Behnke and predecessor landowners did not acquiesce to the fence 

line as a boundary. 

 

1 Fitzpatrick’s appellate brief refers to a purported response to the 2008 letter by 

an attorney in 2016. No evidence of such a response exists in the record. 

Moreover, Fitzpatrick asserts that “there was a dispute over the boundary line if 

the claim was the Behnke property was east of the fence,” not that the fence line 

was recognized as the boundary. (Emphasis added.)
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Behnke’s cross-appeal. 

Behnke baldly asserts their property “was benefited by the original 

easement grant to Hutchinson in 1955.” Fitzpatrick waived briefing in response to 

Behnke’s cross-appeal.

2

With respect to the easement, the court made these findings:

The easement was granted by a prior owner of the Fitzpatrick 

property to a land owner to the north of both the Fitzpatrick and 

Behnke property. It includes an easement over Fitzpatrick land.

Behnke wants use of that easement enforced to allow them to cross 

Fitzpatrick land. The easement when established in 1955 did not 

give access to any of the owners of the property now owned by 

Behnke. The easement description does not match the description 

of the actual boundary line. The easement starts at the property line 

on the southeast corner of the property and goes due north to the 

northeast corner th[e]n west [sixty-six] feet th[e]n south and back 

east. The actual boundary line travels at an angle. Therefore the 

easement, as conveyed is not on Fitzpatrick’s property at the 

southern border but is fully encompassed on the north side. The 

easement was granted for the benefit of the northern properties, not 

for the benefit of the Behnke property.

. . . The only issue is whether the written easement between 

Albert and Alice Burbridge and E.A. Hutchinson is accessible by

Behnke. This court finds that it is not. The easement was granted 

to E.A. Hutchinson, his heirs and assigns as the owner of property 

located north of the disputed parcel. It had nothing to do with the 

land owned by Behnke. Therefore, Behnke has no right to enjoy the 

benefit of that easement.

We review a district court’s decision arising from a bench trial for correction 

of errors at law. See Chrysler Fin. Co. v. Bergstrom, 703 N.W.2d 415, 418 (Iowa 

2005). Finding no error, we affirm.

AFFIRMED ON BOTH APPEALS.

 

2 Failing to file a brief does not require reversal. Bowen v. Kaplan, 237 N.W.2d 

799, 801 (Iowa 1976). We “handle the matter in a manner most consonant with 

justice and [our] own convenience.” Id. We will not search the record for a theory 

to uphold the decision of the district court, but will “confine [ourselves] to the 

objections raised by the appellant.” Id.