Traversing the law: Unintended consequences.
May 1, 2010
I recently encountered a unique situation in American property law dealing with the doctrine of acquiescence.
The story began in the 1970s, when some well-intentioned land surveyors in Iowa approached the state legislature with the idea of codifying the doctrine of acquiescence. It was thought that Iowa would give some legal guidance to land surveyors on how to resolve conflicts between written title and established boundaries and thus curb the practice of surveyors who would ignore all conflicting evidence and simply stake out a deed in accordance with the written measurements (i.e. “deed-stakers”). However, their actions had some unintended consequences.
Iowa’s Unique Take on Acquiescence
I first encountered the statute in question, Title XV, Subtitle 5, Chapter 650 of the Iowa code, as I was preparing for a conference in Ames, Iowa. Chapter 650 deals with several areas of boundary law as the title indicates: “Disputed Boundaries and Corners.” I am not going to discuss the whole chapter, only the two sections dealing with the doctrine of acquiescence. § 650.6 and § 650.14 provide as follows, respectively:
Either the plaintiff or defendant may, by proper plea, put in issue the fact that certain alleged boundaries or corners are the true ones, or that such have been recognized and acquiesced in by the parties or their grantors for a period of ten consecutive years, which issue may be tried before commission is appointed, in the discretion of the court.
If it is found that the boundaries and corners alleged to have been recognized and acquiesced in for ten years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established.
I did not yet know the background story, but two things struck me at first blush.
The first is that Iowa had codified the doctrine of acquiescence. I was a bit disturbed by this fact. If other states have done this, I’m unaware of it. Keep in mind that any boundary determination is a two-part question-and-answer session. The first question is, What is the boundary? This is the legal question that is usually answered by way of the client’s deed. The second question is, Where is the boundary located? This is the factual question that is the primary function of the land surveyor. Acquiescence, like almost all of the other boundary establishment doctrines, is a court-made establishment doctrine that answers the factual question as to where the boundary is located. The fact that Iowa has codified the doctrine moves it out of the realm of court doctrine and precedence to legislative initiative (always scary) and the interpretation of legislative intent (even scarier).
The second thing that struck me, especially in light of the Iowa cases I was reading on the subject, is that this legislation would have a tendency to move all property boundaries in the state to any 10-year-old fence that had been erected between coterminous landowners. At the very least, no 10-year-old fence in the State of Iowa could ever be ignored by the land surveyor (in and of itself, not a bad proposition). But a fair interpretation could also be that every boundary in the state has moved to the 10-year-old fence regardless of the existence of ambiguities that normally allow for extrinsic evidence to be considered and that tend to kick-start these settlement doctrines into play. The logical consequence is that the land surveyor truly attempting to render an opinion on property boundaries will be forced to accept any fence older than 10 years as the true boundary line between any two coterminous landowners. Can you say “fence-line surveyor”?
Consider the 1980 Iowa Supreme Court ruling in the case Sille v. Shaffer:
The meaning of “acquiescence” under section 650.14 is well settled. It is the mutual recognition by two adjoining landowners for ten years or more that a line, definitely marked by fence or in some manner, is the dividing line between them. Acquiescence exists when both parties acknowledge and treat the line as the boundary. When the acquiescence persists for ten years the line becomes the true boundary even though a survey may show otherwise and even though neither party intended to claim more than called for by his deed.
The defendant in the case, Shaffer, vehemently opposed the idea that he had treated the fence as a boundary and not simply as a fence of convenience. His protestations fell on deaf ears.
Contrary to the defendant’s suggestion we find that the fence during that period was recognized as the boundary and not merely a barrier. The plaintiff treated the property on her side of the fence as her own. She improved and maintained the property. Her dominion over the property was well known by defendant. Neither party treated the fence as a mere barrier to protect the defendant’s garden[.]4
The court’s ruling almost takes on the flavor of a unilateral recognition of the fence as opposed to a mutual recognition. Nevertheless, in most states that recognize the doctrine, mutual recognition is implied after enough time has passed regardless of later testimony to the contrary.
The Role of Ambiguities
In many of the states that recognize these boundary establishment doctrines, there must be a dispute over the boundary location or some level of uncertainty. Some courts have stated that if the title boundary can be located by a land surveyor or if there was no dispute over the location of the title boundary, the settlement doctrine in question is not applicable. Ambiguities that are in the deed or that are revealed when an attempt is made to locate the boundary on the ground are generally sufficient uncertainty to allow for the doctrines to be in play.
We have held that where the owners of adjoining tracts of land know where the true boundary line is, and with such knowledge agree that it shall be at another place, and in accordance with such agreement erect a fence on the agreed boundary line and there after acquiesce in such fence as marking the boundary line for a long period of time, no boundary line by acquiescence is thus established because without a dispute or uncertainty as to the location of the true boundary line, the establishment of such a boundary line would have the effect of transferring real property by parol agreement contrary to our statute. Here the court found that there is no official or original plat or survey by which the boundary line can be located, and the evidence shows that the different surveyors do not agree on the location of the boundary line. This clearly creates sufficient uncertainty on which to base a finding of a boundary line by acquiescence.
These doctrines of the law pass muster under the statute of frauds in that it is generally recognized that no conveyance of land is taking place. As we know, the statute of frauds requires that all conveyances of real property must be memorialized by a written document. This is usually the deed of conveyance. This is why another doctrine of the property law, adverse possession, is not generally considered to be a boundary establishment doctrine but a title doctrine. Adverse possession not only settles where the boundary is located on the face of the Earth; it takes the extra step of conveying land to the plaintiff (and conversely, divesting defendant of the same land) between the record title lines and the line claimed by adverse possession. In short, adverse possession changes “what” the boundary is (title) and determines “where” it is located (establishment). Adverse possession is a conveyance of land that has taken place outside of the deed.
Another significant difference between adverse possession and the boundary establishment doctrines is that adverse possession is a statutorily driven right and remedy. It is a right that must be asserted in court and a remedy that can only be handed down by a court. Without a court order memorializing the conveyance, adverse possession has not taken place even though all of the elements may have been satisfied in the field.
The Game Changer
I went to Ames ready to discuss what I saw as the dire consequences of the codification of acquiescence (i.e., turning Iowa land surveyors into fence-line surveyors). However, the day before my presentation, one of the attendees asked me if I was going to discuss Heer v. Thola. At that point, I hadn’t heard of the case (contrary to popular belief, I don’t know everything). Given a chance to download and digest the case, I found it to be even more disturbing than the initial codification of acquiescence.
Instead of interpreting court-made precedence on the doctrine of acquiescence, the court (as it must under such circumstances) set about to interpret the statute and the intent of the legislature when it enacted the code section. In so doing, the court made at least two astonishing and disturbing findings. First, the court treated acquiescence, as defined under the statute, as a “title doctrine,” because, in essence, it effects a transfer of title from the record title line to the fence. This blows right through the traditional role of acquiescence as an establishment doctrine that settles the location of boundaries in the face of ambiguities in the deed. It equates acquiescence to adverse possession, a conveyance of land that has taken place outside of the deed.
Second, and not surprising after the first revelation, is that in Iowa, only a court may declare when acquiescence has taken place. “The language of section 650.14 suggests judicial intervention is a requirement for establishing title by acquiescence.” [Emphasis mine.] Why wouldn’t this be the case? If acquiescence has been turned into a title doctrine, to state otherwise would be to declare that anyone could determine when a conveyance has taken place outside of the deed.
The traditional role of the establishment doctrines is to aid in finding intent in an ambiguous conveyance that has already taken place, not to determine that a conveyance has taken place outside of the deed. What was intended to be an aid and guidance to land surveyors may just be another mine in the minefield we call surveying. “The best laid plans of mice and men….”
1. By this I mean a proper interpretation of the client’s deed. This involves reading the client’s deed in light of surrounding circumstances and perhaps through extrinsic evidence, especially when ambiguities create the proper atmosphere for such consideration. I have discussed this on many occasions and will not repeat all of the principles for the interpretation of written documents at this time.
2. Any list of boundary establishment doctrines includes acquiescence, practical location, oral agreement, estoppel, acquiescence and repose.
3. Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980).
5. Jensen v. Bartlett, 286 P.2d 804, 805, 806 (Utah 1955).
6. Heer v. Thola, 613 N.W.2d 658 (Utah 2000).
7. Id. at 661.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.
This column is a forum for analysis and discussion of closed court cases. Facts and information cited are limited to what is contained in the published legal documents. It is not POB nor the author’s intent to re-try cases that have already been resolved and closed by the court system.