Last week, the Iowa Court of Appeals upheld a trial court’s order specifically enforcing a partition fence agreement between neighbors. The opinion illustrates that such an agreement does not necessarily preclude costly litigation. It also demonstrates the importance of engaging legal counsel at the beginning of a dispute.
The plaintiff and defendant were adjoining landowners. Plaintiff had cattle, but it appears that defendant did not. Under Iowa law, adjoining landowners must share the cost of a partition fence if one of the landowners makes such a request. Both neighbors are equally responsible, even if only one of them has livestock.
The plaintiff and defendant had entered into a partition fence agreement in 2012. Iowa Code § 359A.12 allows such an agreement to memorialize which portion of the partition fence is to be maintained and/or built by which neighbor. Once written and recorded, the agreement is binding upon the neighbors and their successors. Iowa Code § 359A.13.
According to the plaintiff, the defendant had not complied with his obligations under the agreement to properly maintain the fence. The reader is left to conclude that the plaintiff’s cattle were entering the defendant’s property.
The plaintiff filed an action asking the court to require the defendant to comply with the terms of the agreement. In the alternative, he asked for damages to make the repairs himself.
The defendant, who represented himself at trial, attempted to introduce evidence showing that the plaintiff could not maintain his action because the plaintiff himself was not in compliance with the agreement. The defendant alleged that the plaintiff had allowed brush and vegetation to grow up along the fence, in direct violation of an agreement provision requiring that it be removed.
The trial court did not allow the defendant to introduce his evidence at trial because he had not properly disclosed it to the plaintiff during discovery. The trial court then entered an order requiring the defendant to comply with the terms of the fence agreement. The trial court also ordered the defendant to pay $19,358.75 of the plaintiff’s attorney fees and litigation expenses because the fence agreement provided for such recovery to the prevailing party.
On appeal, the Iowa Court of Appeals affirmed the judgment. The court also remanded for a determination of the amount of the plaintiff’s appellate fees, which the defendant will be required to pay. The court found that the testimony of a neutral fence viewer was substantial evidence that the plaintiff was in substantial compliance with his obligations under the fence agreement. “The purpose of the contract was to maintain a partition fence between the parties’ properties so that [the plaintiff’s] cattle would not invade [the defendant’s] land.” The plaintiff had engaged the fence viewer to inspect his fence, and he made any necessary repairs before he filed suit. While vegetation may have been touching portions of the fence, that vegetation did not “impair the integrity of the fence or cause the wires to sag or break.” This, the court found, was “substantial performance.” The fence viewer had testified that the plaintiff’s portion of the fence would “turn cattle,” but the defendant’s portion of the fence would not.
The court also ruled that the trial court did not err in excluding defendant’s proffered evidence because it had not been properly disclosed during discovery. The defendant did not offer a reason for his delay, and the plaintiff should not have been required to conduct further discovery when he was ready for trial.
This case has been very costly to the defendant. And he still must repair or replace his portion of the partition fence.
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