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Westcott v. Malli

Court of Appeals of Iowa

March 12, 2014

JERRY WESTCOTT and DARLENE WESTCOTT, Plaintiffs-Counterclaim Defendants-Appellees,
v.
ROGER MALLI, Defendant-Counterclaimant-Appellant

Editorial Note:

This decision is published in table format in the North Western Reporter.

Appeal from the Iowa District Court for Winneshiek County, Richard D. Stochl, Judge. Roger Malli appeals the district court's finding that Jerry Westcott and Darlene Westcott are the legal title holders to 2.9 acres of disputed land.

Kevin E. Schoeberl of Story & Schoeberl Law Firm, Cresco, for appellant.

Erik W. Fern, Decorah, for appellees.

Heard by Vogel, P.J., and Tabor and McDonald, JJ.

OPINION

VOGEL, P.J.

Roger Malli appeals the district court's finding that Jerry Westcott and Darlene Westcott are the legal title holders to 2.9 acres of disputed land. Malli argues the Westcotts failed to prove by clear and convincing evidence they adversely possessed the property, and consequently, the district court erred in dismissing Malli's counterclaims of trespass and conversion. Malli further argues the district court erred in admitting testimony of a statement made by a deceased realtor. Finally, Malli claims the court should have awarded him attorney fees. Because we conclude the Westcotts proved their adverse possession claim, the district court properly admitted the realtor's statement, as well as properly denied Malli attorney fees, we affirm.

I. Factual and Procedural Background

On November 5, 1988, Jerry and Darlene Westcott entered into a real estate contract with Malli to buy " 80 acres, more or less, and buildings on land legally described as: The South One-half (S 1/2) Southwest Quarter (SW 1/4) of Section Thirty (30), Township 100 North, Range Nine (9), West of the 5th P.M., Winneshiek County, Iowa." At the time of the contract, Malli owned a 2.9 acre parcel of land described as: " Lot 1 of the Northwest Quarter of the Southwest Quarter of Section 30, Township 100 North, Range 9 West of the 5th P.M., in Winneshiek County, Iowa."

The eighty plus acres was listed by Malli with the real estate company of Erickson-Prohaska, and Dick Cummings was the real estate agent. Cummings advised the Westcotts the property encompassed everything within the fence line, which included the 2.9 acres. No survey was ever done, though the Westcotts received a plat map from Cummings, which was highlighted to include the 2.9 acre parcel. The Westcotts testified they believed they purchased the disputed parcel along with the eighty acres. Consequently, they made improvements on the parcel, such as replacing and repairing the fencing, constructing new gates, grading an unimproved road and putting gravel on its surface. They have also used the land for grazing their cattle and horses. They have cut down trees, removed a dilapidated shed, and mowed and sprayed the grass on the property. Additionally, between 1989 and 2010, the Westcotts have leased out their land--including this parcel--and the tenants have used the parcel to access other pastures on the property as well as graze their livestock.

A pole barn, constructed by Malli in 1978 and sold as part of the Westcott purchase, sits on the eighty acres with approximately forty-six inches sitting across the property line of the 2.9 acres. This encroachment was not described in the original deed. A corral is also located on the 2.9 acres, north of the barn. The Westcotts replaced the corral's fencing. Both the barn and the corral for the cattle and horses have been used by the Westcotts since they purchased the property from Malli. The Westcotts believed they were paying taxes on the disputed land because of the irregular shape of the property, as well as the fact their tax statement indicated they were paying taxes on 82.3 acres.

To correct a prior deed, Malli received a quit claim deed to the 2.9 acres from Michael and Carolyn Junk in 1993.[1] The deed was recorded on February 24, 1994. Since 1988, Malli has only been on the parcel two to three times[2] and has never interfered with the Westcotts' use of the property. However, Malli has paid the property taxes for the parcel since 1993.

In July of 2011, the Westcotts were informed by the Farm Service Agency that they did not have legal title to the 2.9 acres. Consequently, they filed suit to obtain title through adverse possession. Malli resisted, filing counterclaims of trespass and conversion. Trial was held on February 27, 2013. On February 28, the district court issued an order finding the Westcotts had proven the ...


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