Not infrequently, agricultural landowners find themselves in boundary disputes with neighbors. Under Iowa law, it is possible that a survey will not settle the dispute. Indeed, in rural settings it is often the case that usage determines the actual property boundary. That was precisely the situation in this case. In 1868, a landowner deeded an acre to township trustees for use as a cemetery. In 1953, a descendant of the landowner acquired title to land surrounding the cemetery. A fence bounded the property, including the cemetery property, on the north side. Over time, the cemetery expanded beyond the original acre to include some of the descendant’s land. The descendant lived across the road from the cemetery and was aware of the expanded use of the cemetery. The descendent died in 1997, and the land in question was sold to the defendant. The deed conveying the property to the defendant did not specifically exclude “cemetery land.” In 2004, the cemetery filed a petition to establish the barbed wire fence as the northern boundary of the cemetery lands which would result in some of the land the defendant purchased being cemetery land. The cemetery association claimed that the defendant and his predecessors in title had acquiesced in the fence as the boundary line between the cemetery land and the non-cemetery land, and that the acquiescence had been continuous since 1981. The trial court ruled for the cemetery association.
On appeal, the Iowa Court of Appeals affirmed. Under Iowa law, if a boundary has been acquiesced to via usage for at least 10 years, the usage establishes the boundary even though a survey shows otherwise. An exception exists if the acquiescence involves a fence that the parties treated as a barrier fence (to hold cattle) rather than a boundary fence. While that was the case here until the early 1970s, the usage of the fence changed in 1981. From that point on, the court noted, the defendant’s predecessor in title knew that the cemetery was asserting usage of some of his property beyond the original acre and did nothing to prevent that usage. As a result, the fence established the property boundary, and the defendant lost some of the property he thought he had purchased. Oliphant v. Zubrod, No. 05-0170, 2006 Iowa App. LEXIS 35 (unpublished) (Iowa Ct. App. Jan. 19, 2005).