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IN THE COURT OF APPEALS OF IOWA No. 1-751 / 10-1970 Filed November 23, 2011

BOBBIE L. CARTER and PATRICIA J. CARTER, Plaintiffs-Appellees/Cross-Appellants, vs. J.D. FLEENER, Defendant-Appellant/Cross-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Mahaska County, Daniel P. Wilson, Judge.

The defendant appeals, and the plaintiffs cross-appeal, in a boundary by acquiescence case. REMANDED. AFFIRMED IN PART, REVERSED IN PART, AND

Brent B. Green, Martin J. Kenworthy, and E.J. Flynn of Duncan, Green, Brown & Langeness, P.C., Des Moines, for appellant/cross-appellee. Dustin D. Hite and Matthew B. Moore of Heslinga, Heslinga, Dixon & Moore, Oskaloosa, for appellees/cross-appellants.

Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.

2 VOGEL, J. I. Background Proceedings. The parties are adjoining landowners, with Bobbie and Patricia Carter owning the property to the north and J.D. Fleener owning the property to the south. The Carters' property consists of a home and several outbuildings on approximately 1.32 acres, and Fleener's property is approximately six acres of farmland. The parties disagree over the boundary between their properties, specifically disputing the ownership of a triangle-shaped strip of land. At its

widest point, the disputed land is sixteen-feet wide near the road that runs along both parties' land and angles back toward the Carters' property. On the strip of land, is a light pole and telephone pedestal near the road, a rock garden, and bushes. The Carters moved into their home in 1963 and purchased the property in 1965. At the time the Carters moved onto their property, the disputed property had a shed and a fenced pig pen on it, which the Carters used for several years. After the shed and fence were torn down, the Carters continued caring for the disputed land, including continuously mowing, planting bushes, and building a rock garden in the 1990's. For thirty-three years, the Carters maintained the property, assuming that which is now in dispute was their land. The record contains the chain of title to the south property since 1963, with ownership as follows: Vera Houser in 1963; brothers, William, Richard,

Charles, and Donald Cummings in July 1976; the Henry Hackert GST Trust and the Sarah Hackert GST Trust in 2007; and Fleener on January 8, 2008.

3 Fleener had rented the south property for ten or fifteen years prior to acquiring title to it, and also rented other farmland adjacent to the Carters' property. While renting the farmland, disputes arose between the Carters and Fleener, including Fleener poisoning two elm trees on the Carters' property in 2004 or 2005. The conflict between the parties escalated and after Fleener

acquired the south property in 2008, he had the land surveyed and discovered that what the Carters had treated as their southern boundary was not the boundary surveyed according to the legal description. In a letter addressed to Bobbie Carter and dated June 3, 2009, Fleener's attorney stated in part, It is therefore obvious to you that you are ENCROACHING on my clients' property. You are directed to immediately remove your encroaching items as follows: fence, rock garden, tile, overhanging trees, lilac bushes, and any other property of yours which is located on my clients' property. In 2009, the Carters initiated the present action.1 In the Carters' first

claim, they sought to establish a boundary by acquiescence between their property and Fleener's property. See Iowa Code

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