IN THE COURT OF APPEALS OF IOWA

No. 19

- 1593 Filed November 4, 2020

JAMES A. BEHNKE and BARB J. BEHNKE
, Plaintiff s

- Appell ees/Cross

- Appellants

,

vs.

MARK FITZPATRICK and SHERYL FITZPATRICK
, Defendant s

- Appell ants/Cross

- Appellees

.

________________________________________________________________

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

, Judge.

Adjoining property owners appeal and c ross

- appeal f rom the district court’s

order resolving a boundary dispute

. AFFIRMED ON BOTH APPEALS.

Dan McClean of McClean Law Offices

, Dyersville , for appellant s

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

,
Dubuque , for appellee s

.

Considered by Bower, C.J. , and May and Ahlers, JJ.2

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 p roperty

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. Fi t zpatrick answered, asserti ng a fence line , not the

plat lines, established the boundary by acquiescence and disput ing 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 [ 201 6

- 81 ]

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

Fitzpatrick appeal s from the boundary ruling. Behnke c ross

- appeal s from

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

. Fitzpatrick’s appeal.

A boundary dispute is a special actio n tried at law under Iowa Code c hapter

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

N.W.2d 801, 80 4 (Iowa 1994). T he 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 §§ 65 0.6

, .14 ; Tewes , 522 N.W.2d at 806 (discussing3

boundary by acquiescence); Egli v. Troy , 602 N.W.2d 329, 333 (Iowa 1999) (“A

party seeking to establish a boundary other than a surve y 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 pl ace 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 barrie r, 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). W e 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 assert s tha t “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.)4

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 b ut is fully encompassed on the n orth 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. Hutch inson 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. Theref ore, 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)

. W e “handle the matter in a manner most consonant with just ice and [our] own convenience.” Id. W e 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.