Preview:

IN THE COURT OF APPEALS OF IOWA No. 6-380 / 05-1488 Filed October 11, 2006

DONALD E. BOWN and GINA K. OTTE, Plaintiffs-Appellants, vs. CITY OF STATE CENTER, NACIN PROPERTIES, L.L.C., ALAN J. NACIN, and PARTNER COMMUNICATIONS COOPERATIVE , Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Michael J. Moon, Judge.

Plaintiffs appeal an adverse ruling from the district court on various claims related to adjacent parcels of land. AFFIRMED.

Reyne L. See and Bethany J. Currie of Johnson, Sudenga, Latham, Peglow & O'Hare, P.L.C., Marshalltown, for appellants. Robert W. Goodwin of Goodwin Law Office, P.C., Ames, for appellees Nacin Properties, L.L.C. and Alan J. Nacin.

Heard by Huitink, P.J., Mahan, J., and Hendrickson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

2 MAHAN, J. Donald E. Bown and Gina K. Otte 1 appeal from an adverse ruling by the district court in a property dispute. We affirm. I. Background Facts and Proceedings Defendant Nacin Properties, L.L.C. 2 purchased property in State Center, Iowa, from Norris and Cecile Baie on May 28, 2002. The Baies had owned the property and operated a salvage yard on it since 1991. The property housed a creamery from 1891 to 1991. 3 housing subdivision. Nacin purchased the property to develop a

In July 2002 Nacin constructed a fence around the

property, at the insistence of its liability insurance carrier, and began clearing the premises. The Bowns purchased the property to the north of and adjacent to Nacin's property from the Sokol estate on October 21, 2003. The property had been the Sokol family home for more than fifty years. This case involves a dispute over two separate parcels of land: a twentythree-foot-wide strip ("twenty-three-foot strip") running east and west, located directly south of the Bowns' property; 4 and a forty-four-foot-wide strip ("forty-four-

1

Bown and Otte were married during the pendency of this case; therefore, we will refer to them collectively as the Bowns. Alan J. Nacin is the manager and sole member of Nacin Properties, L.L.C. We will refer to Nacin and Nacin Properties collectively as Nacin. The State Center Farmer's Creamery Association, later called the State Center Farmer's Cooperative Creamery Association, owned the property until 1980, when MidAmerican Dairymen, Inc. purchased it. In a 1909 deed, a predecessor in title to the Bowns conveyed to the creamery the twenty-three-foot strip, with the following reservation of right: "as long as said strip is used as a driveway first party reserves the right to use the same also for that purpose."

2

3

4

3 foot strip"), also running east and west, located directly south of the twenty-threefoot strip. 5 The forty-four-foot strip includes a private road that was the access to the creamery, and later the salvage yard, from a city street directly west of the property. The twenty-three-foot strip separates and lies between the forty-fourfoot strip and the property purchased by the Bowns. To access the garage

located on their property, 6 the Sokols used the private road along the forty-fourfoot strip and crossed the twenty-three-foot strip. The sole means of access to the garage was over these two strips of land. When the Bowns purchased their property, Nacin had already installed the fence around the salvage yard. The fence blocked all access to Nacin's property from the garage on the Sokol property. The real estate agents involved in the transaction between the Sokol estate and the Bowns were unsure whether there would ultimately be access to the garage on the Sokol property over Nacin's property. The counter offer by the Sokol estate to the Bowns stated, "Seller reiterates the obsolete driveway situation." The price of the property was

discounted because the estate did not want to pursue litigation with Nacin over the driveway. The City approved a subdivision plat of the Nacin property in May 2004. A four-plex townhome has been built on Lot 1 of the subdivision, which includes the

5

The forty-four-foot-wide strip is identified in an 1891 warranty deed to the creamery as being "carried with this conveyance only as a right of way for street purposes for use of contracting parties, their heirs, and assigns." The garage faces south. A driveway runs north and south, directly north of the twentythree-foot strip.

6

4 twenty-three-foot strip and forty-four-foot strip. Two other four-plex townhomes have been built on the Nacin property. The Bowns filed a seven-count petition in May 2004, naming Nacin, Partner Communications Cooperative, and the City of State Center as defendants. 7 In pertinent part, the petition (1) sought to quiet title in the twentythree-foot strip against Nacin, (2) sought a declaratory judgment that the Bowns have easement rights against Nacin over the twenty-three-foot strip, (3) sought a declaratory judgment that the Bowns have easement rights against Nacin over the forty-four-foot strip, and (4) alleged Nacin trespassed on the twenty-three-foot strip and another small parcel to the north. Nacin filed an answer, raising

affirmative defenses, and a counterclaim. The district court granted the City's motion for summary judgment, 8 but denied motions for summary judgment filed by Nacin and the Bowns, and the matter proceeded to trial. Following a bench trial, the district court dismissed the petition. The

Bowns appeal, arguing the district court erred in determining (1) the Bowns do

7

Partner Communications Cooperative and the City were later dismissed by the Bowns and are not parties to this appeal. Count II of the Bowns' petition asked the court to declare the forty-four-foot strip a public street and order the City to comply with Iowa Code chapter 306 and pay the plaintiffs for damages. In the alternative, the Bowns asked the court to declare that the City's approval of Nacin's subdivision plat was illegal and void. The summary judgment ruling addressed only the Bowns' allegations related to the public street issue. In its ruling following the bench trial, the court concluded the Bowns' claim that the City's approval of the subdivision plat was illegal and void was barred due to the Bowns' failure to file a writ of certiorari within thirty days of the city council's approval of the subdivision. On appeal, the Bowns contend the district court's conclusion was in error, arguing the issue was moot because the City had been dismissed from the case. Although it appears from the court's ruling that the Bowns raised the issue of the legality of the subdivision at trial, we agree the issue is moot, and will not address it further in this opinion.

8

5 not have title to the twenty-three-foot strip under a theory of boundary by acquiescence; (2) the Bowns do not have an easement by grant or, alternatively, an easement by prescription, to the twenty-three-foot strip; (3) Iowa Code sections 614.17 and 614.17A bar the Bowns' easement claims; (4) the Bowns do not have an easement by grant over the forty-four-foot strip; (5) Nacin did not trespass upon the Bowns' property; and (6) the Bowns are not entitled to punitive damages and common law attorney fees. 9 II. Standard of Review The district court tried this matter in equity. Therefore, our review is de novo. Iowa R. App. P. 6.4; see also Brede v. Koop, 706 N.W.2d 824, 826 (Iowa 2005). 10 We examine the facts and the law and decide the issues anew. Brede, 706 N.W.2d at 826. We accord weight to the district court's factual findings, but they are not binding. Id. III. Boundary by Acquiescence Iowa Code section 650.14 (2003) permits a suit to establish title by acquiescence: 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.

We note the Bowns' failure to state how each issue raised on appeal was preserved for our review, as required by our rules of appellate procedure. See Iowa R. App. P. 6.14(1)(f).
10

9

We recognize that we generally review claims seeking to establish a boundary by acquiescence pursuant to Iowa Code section 650.14 on assigned errors of law. See Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997). Because the present action was tried in equity, however, our review on appeal is de novo. See Sille v. Shaffer, 297 N.W.2d 379, 380-81 (Iowa 1980) (reviewing de novo a section 650.14 proceeding tried by the court in equity).

6 See also Iowa Code

Download DONALD E. BOWN a nd GINA K. OTTE, Plaintiffs-Appellants, vs. CITY OF STATE CENTE

Iowa Law