Boundary By Acquiescence or Title By Adverse Possession Not Established.

The parties' properties were separated by a railroad track.  A 100 foot right-of way extended on each side of the track.  The plaintiff took over farming his side of the track in 1994 for crop production purposes, and the defendant acquired its interest in its tract (which was primarily used for cattle grazing) in 1993 via a deed from the county.  The property line between the tracts was the centerline of the railroad right-of-way.  A fence had been built in the early 1960s on the defendant's side of the track beyond the 100-ft right of way as a matter of convenience.  By 2012, the fence was dilapidated and the defendant's tenant rebuilt the fence on the property line with a portion built over on the defendant's land to allow the plaintiff's machinery to access the plaintiff's property via a trestle over a creek.  The plaintiff objected to the location of the fence and sought to quiet title in himself of the strip of land from the property line to the position of the old fence either under a theory of acquiescence or adverse possession.  The trial court disagreed with the plaintiff on both theories and the plaintiff appealed.  The appellate court affirmed, finding that the evidence did not show that both parties recognized the fence as a boundary fence rather than just a barrier for cattle.  Thus, there was no acquiescence as to a boundary for the statutory 10-year period.  The defendant's tenant always maintained the fence in order to keep cattle in and viewed the fence as his own and never recognized it as a boundary fence.  The court also agreed with the trial court that the adverse possession claim failed.  The defendant always paid the property taxes on the disputed property negating the plaintiff's claim that he had a good faith claim of title.  In addition, the plaintiff's possession was neither open or hostile.  The plaintiff sometimes posted "no hunting" signs on the property and several times a year drove machinery over the disputed tract.  This represented permissive rather than hostile use.  Mayhugh v. Dea, No. 15-0142, 2015 Iowa App. LEXIS 882 (Iowa Ct. App. Sept. 23, 2015).

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