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IN THE COURT OF APPEALS OF IOWA No. 7-621 / 07-0268 Filed September 19, 2007

MICHAEL S. JAGER and SHELLY J. JAGER, Plaintiffs-Appellants, vs. BRACKER WEST FARM CORPORATION, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.

Plaintiffs appeal district court order refusing to establish a boundary line under the doctrines of acquiescence and practical location. AFFIRMED.

A.W. Tauke of Porter, Tauke & Ebke, Council Bluffs, for appellants.

Deborah L. Petersen of Deborah L. Petersen, P.L.C., Council Bluffs, for appellee.

Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.

2 MAHAH, P.J. Michael and Shelly Jager claim the district court erred when it refused to establish a new boundary line between their property and that of the defendant, Bracker West Farm Corporation, under the doctrines of acquiescence or practical location. The Jagers also claim the district court erred in failing to limit the

defendant's rights of ingress and egress across their property. We affirm. I. Background Facts and Prior Proceedings The Jagers purchased their rural acreage in 1985. When they purchased the property, there was no fence to delineate the southwest border of their property. Michael Jager did not know precisely where the boundary line was, but he assumed it was somewhere "at the bottom of the hill." A plot plan was

completed at the time of the purchase, but the Jagers do not recall seeing the plot plan. The plan depicted a gravel drive on the Jager property, an easement to the south of the drive, and a 49.5-foot-by-204-foot indentation in the southwest corner of their property. This indentation (hereinafter the "subject property") was a part of the large piece of property directly south of the Jagers and is the subject of the present appeal. The Jagers mowed the subject property, down to the point of an old fence post, for the next six years. This old fence post was almost directly west of the southeast corner of the Jager property. In 1989 Ken and Marliss Haycock purchased the property to the south of the Jager property. The Jagers had a good relationship with the Haycocks, and the precise boundary line was never an issue between the two families, partly because they were friends and were on and off each other's property "all the

3 time." In 1991 the Haycocks began planting rows of trees in the northwest corner of their land. Either Ken or Marliss Haycock talked with the Jagers before they planted trees in the subject property. The Haycocks did not know exactly where the property line was, but they spoke with the Jagers to make sure the trees did not cause any problems. The Haycocks planted three rows of trees. The Jagers began to mow down to the northern-most row of trees, rather than continue farther south to the area they had mowed before. 1 The Haycocks let native

grass grow on the property to the south of the northern-most row of trees. The Haycocks sold their land to Greg White in 1997. The next year, he built a fence on the northern side of his property so that he could keep horses on his land. He did not know where the property line was, but he assumed the old fence post was the northern line of his property. Thus, he used this fence post as the northwest corner of his fence. After the fence was built, two of the three rows of trees were north of the fence. The Jagers began mowing down to the fence, the same area they had mowed before the trees were planted. In 2003 White sold his land to the defendant, Bracker West. Bracker West promptly removed the fence and took steps to divide the area for housing development. In response, the Jagers filed the present action asking the court to establish that they owned the subject property under the doctrines of practical location, acquiescence, or adverse possession. Alternatively, they asked the

1

The record does not contain accurate descriptions of the distance between the old fence post and the northern-most line of trees, or the distance between these trees and the actual property line. However, all were contained within the 49.5-foot distance between the old fence post and the actual property line.

4 court to establish that they owned at least the portion of the subject property north of the northernmost row of trees. 2 The Jagers also asked the court to find an unrelated easement for ingress and egress was unnecessary, invalid, and unenforceable. After a one-day trial, the court found the Jagers were not entitled to a boundary by practical location, acquiescence, or adverse possession for the entire subject property or the smaller portion of the subject property, north of the tree line. The court also denied the Jager's request to terminate the easement. On appeal, the Jagers contend the trial court erred in: (1) refusing to establish a boundary at the fence line by practical location, (2) refusing to establish a boundary at the north tree line by practical location, (3) refusing to establish a boundary at the north tree line by acquiescence, and (4) failing to limit the rights of ingress and egress across the Jager property to the prescribed location in the deed. II. The Doctrine of Practical Location A. Standard of Review The doctrine of practical location is equitable in nature. Trimpl v. Meyer, 246 Iowa 1245, 1254, 71 N.W.2d 437, 442 (1955). Cases brought in equity are reviewed de novo on appeal. Iowa R. App. P. 6.4. We give weight to the fact findings of the district court, but are not bound by them. 6.14(6)(g). Iowa R. App. P.

2

The Jagers also asked the court to establish boundary lines in a different area of the property. These claims are not a subject of this appeal.

5 B. Merits The Jagers claim a practical location for a boundary line was established between either themselves and the Haycocks or themselves and White. The doctrine of practical location is set forth in Trimpl, 246 Iowa at 1253-54, 71 N.W.2d at 442 (quoting 11 C.J.S. Boundaries

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