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Gartin v. Farrell

Court of Appeals of Iowa

January 9, 2014

DONALD E. GARTIN, Plaintiff-Appellant,
v.
CAROLE JO FARRELL, a/k/a CAROLE J. FARRELL, Defendant-Appellee.

Appeal from the Iowa District Court for Lucas County, David L. Christensen, Judge.

Donald Gartin appeals from the district court's ruling in his favor establishing a prescriptive easement as to a fence erected on his adjoining landowners' land.

Timothy B. Liechty of Bell, Ort & Liechty, New London, for appellant.

Nicholas J. Pellegrin and Michael J. Streit of Ahlers & Cooney, P.C., Des Moines, for appellee.

Heard by Doyle, P.J., and Tabor and Bower, JJ.

DOYLE, P.J.

Donald Gartin appeals from the district court's ruling in his favor, establishing a prescriptive easement on his adjoining landowner's property. He complains the court should have found in favor of his first theory of relief, acquiescence, rather than his alternate theory of relief, easement by prescription. He also asserts the court erred "in the extent of the easement" because the easement granted was not large enough. We affirm.

I. Background Facts and Proceedings.

The underlying litigation in this appeal concerns a fence erected in 1990 by the then-adjoining landowners and good friends, Eldon and Dorothy Fetters (the Fetters) and John and Ora Gartin (the Gartins). At the time the 1990 fence was proposed, the Gartins owned a rectangular piece of land situated directly to the west of a rectangular piece of land owned by the Fetters. The historical boundary line between the two pieces of land was demarcated with a fence ("historical fence") running north to south in an approximate straight line on the property border. The historical fence was maintained under what is known as the "left-hand rule, " wherein the northern half of the historical fence was maintained by the western landowners, the Gartins, and the southern half was maintained by the eastern landowners, the Fetters.

A small waterway ran diagonally southwest through the northwest-corner region of the Fetters' land into the Gartins' land. Over the years, the waterway has eroded the land, and the waterway itself has in parts become bigger and surrounded by a ravine. As a result of the changing waterway, parts of the historical fence ended up in the waterway and ravine, causing it to deteriorate and making it difficult to maintain. Although the land around the historical fence was not used by the Fetters or the Gartins due to its rough terrain, a fence was required to keep cattle grazing on the other part of the Fetters' land in place.

In 1990, because the historical fence was in bad shape and because the Gartins were elderly and physically unable to maintain their portion of the historical fence in the waterway and ravine, the Gartins and the Fetters struck an oral agreement to erect a sturdy new fence. It was agreed the fence would be relocated on the Fetters' land to the east of the waterway and ravine, running diagonally. The Gartins bought the materials for the fence, and they paid Eldon Fetters to build it. Joe Farrell assisted in the building.

Image Omitted [1]

The fence was indeed sturdy. It remains today and is the subject of the underlying litigation, along with the small triangle of land formed to the west of the 1990 fence, equaling approximately .92 acres.

Appellant Donald Gartin (Donald) is the Gartins' son and the current owner of his parents' former land. Appellee Carole Farrell is now the sole owner of the Fetters' land containing the 1990 fence, which she and her husband Joe Farrell owned jointly until his death in February 2012. Joe continued the tradition of maintaining the southern portion of the historical fence over the years, and he would let Donald know if there was something Donald needed to do or fix concerning the 1990 fence because Donald lived out of town.

At some point, issues arose between the Farrells and Donald. The Farrells stated Joe told Donald the 1990 fence needed certain maintenance, and Donald refused to complete the necessary repairs. Joe threatened to tear the 1990 fence down, and litigation ensued.[2] It is undisputed that the disputed .92 acres of land was contained in the legal description of the property conveyed to the Farrells by the Fetters.

In October 2011, Donald filed his petition for writ of temporary and permanent injunction. The petition stated the Farrells informed him they were going to remove the 1990 fence and install a fence on the true state survey boundary line. Donald asserted the 1990 fence had been recognized by the property owners as the boundary fence for more than twenty years, and he sought a temporary and a permanent injunction from the court to stop any action by the Farrells and for damages. The court then entered a temporary writ of injunction.

The Farrells subsequently answered, disputing Donald's claims. They maintained the 1990 fence was never intended to be a boundary fence by the adjoining landowners, and, until recently, there had been no openness, notoriety, or hostility as to the ...


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