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IN THE COURT OF APPEALS OF IOWA No. 9-751 / 08-2012 Filed December 30, 2009

JAMES A. TOOL and M. CYNTHIA TOOL, Plaintiffs-Appellants/Cross-Appellees, vs. ROBERT GENE NOLIN and MARJORIE M. NOLIN, Defendants-Appellees/Cross-Appellants. ________________________________________________________________

Appeal from the Iowa District Court for Jasper County, Gregory A. Hulse, Judge.

James and Cynthia Tool appeal, and Robert and Marjorie Nolin crossappeal, from the district court ruling quieting title to certain real estate to the Tools. AFFIRMED.

Bruce Nuzum of Matthias, Campbell, Tyler, Nuzum & Rickers, Newton, for appellant. James C. Ellefson of Moore, McKibben, Goodman, Lorenz & Ellefson, L.L.P., Marshalltown, for appellee.

Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.

2 DANILSON, J. James and Cynthia Tool appeal, and Robert and Marjorie Nolin crossappeal, from the district court ruling that the Tools had proved title by adverse possession to a small piece of rural land, triangular in shape, amounting to less than 1/3 acre that was previously part of a railroad line ("the triangle"), with the exception of the south twenty feet of the triangle. I. Background Facts and Proceedings. In an earlier appeal on the instant case, this court remanded for a trial on the issues of adverse possession and boundary by acquiescence.1 Our

February 27, 2008 ruling contains a detailed factual background regarding the parties' claims of ownership to the triangle, which we reiterate in part: Nolins' Claim. The Nolins trace their right to the land as follows. In 1877, a deed transferring the land to Iowa, Minnesota and N.P. R.R. Co. was recorded in the office of the Jasper County Recorder. That deed recited, in pertinent part, that in case the said Railway Company does not construct a Railway through said tract of land or shall after construction permanently abandon the route through said lands the same shall revert to and become the property of the grantees herein, their heirs and assigns In approximately 1927, the rails and ties remaining from the railroad were removed from this particular piece of land. Later, a decision by the Interstate Commerce Commission found that the
This action is one of several between these parties (and their families) since 2004 with regard to a disputed section of real estate in rural Jasper county. In 2005 this court affirmed the district court's conclusion that the Nolins did not have an easement to use the lane formerly known as "Flora's Lane" on the south twenty feet of the Tools' property. See Nolin v. Tool, No. 05-0741 (Iowa Ct. App. Nov. 23, 2005). Later, the district court granted an injunction filed by the Tools to enjoin the Nolins from the condemnation of a road through the real estate. See Jasper County Case No. EQCV113751. In the instant action, this court remanded for a trial on the issues of adverse possession and boundary by acquiescence. See Tool v. Nolin, No. 07-0813 (Iowa Ct. App. Feb. 27, 2008). Those issues were tried and considered by the district court, and are now the issues before this court on appeal.
1

3 entire portion of the railroad line running from Reasnor to Monroe had been formally abandoned. In 1956, a tax sale regarding this property was held, and Jasper County bid on it, as was then required. On December 21, 1967, a tax deed was issued to Jasper County. The tax sales deed recites that that abandoned railroad property was acquired for taxes owed by the Chicago, Rock Island & Pacific Railroad Company for the years 1953, 1954, and 1955. In 1972, Jasper County held an auction and sold its interest in the property to Steve and Linda Hewitt by way of quitclaim deed. In 2006, Robert Nolin approached Steve Hewitt to purchase the land. Hewitt agreed to sell it for $1000 and he provided Nolin with a quitclaim deed. Tools' Claim. As noted above, the 1877 deed transferring the land to the railroad provided for the possibility of title reverting to the grantees or their assigns should the railroad company abandon it. The Tools assert they are the assigns of those grantees. In 1978, the Tools purchased a portion of the disputed land from the Van Wyngarden family. In 2002, they purchased a second plot of land from a cousin, Arthur Q. Tool, and his wife. Later that year, the Tools filed an affidavit of possession concerning the land. The Lawsuit. On August 28, 2006, the Tools filed a petition in equity against the Nolins, asking that title to the disputed property be quieted in their names. Competing motions for summary judgment were filed by the parties. Following a hearing on the motions, the district court ruled in favor of the Tools and quieted title to the land in their name. .... We first note that the Tools, who prevailed below, now concede that the legal ground upon which the district court ruled in their favor does not actually support its position. .... The Tools also claimed a right to the land under alternative grounds. However, the district court did not address the issue of whether the Nolins' interest in the land was forfeited either under a theory of adverse possession or boundary by acquiescence. It appears factual issues may remain as to these claims, and a trial may be necessary on them. We therefore remand for further consideration of these theories. Tool v. Nolin, No. 07-0813 (Iowa Ct. App. Feb. 27, 2008).

4 On remand, the district court determined the Tools had proven title by adverse possession to the triangle, except the south twenty feet of it.2 The court dismissed the Tools' action for slander of title. The Tools filed a motion to

enlarge or amend findings, which the court denied. This appeal followed. II. Adverse Possession. The Tools appeal, contending the court erred in finding they did not establish title by adverse possession to the south twenty feet of the triangle. The Nolins cross-appeal, arguing the court erred in finding that the Tools had established title by adverse possession to any part of the triangle. Our review of this issue is de novo. Fencl v. City of Harper's Ferry, 620 N.W.2d 808, 811 (Iowa 2000). A party seeking to gain title by adverse possession "must establish hostile, actual, open, exclusive and continuous possession, under claim of right or color of title for at least ten years." C.H. Moore Trust Estate v. City of Storm Lake, 423 N.W.2d 13, 15 (Iowa 1988). The doctrine of adverse possession is strictly

construed because the law presumes possession is under regular title. Id. Proof of each of the elements must be "clear and positive." Id. In this case, the district court determined the Tools provided clear and positive proof of its claim of right or color of title to the triangle, except the south twenty feet. We agree with the court that the Tools established hostile, actual, open, exclusive, and continuous use of the triangle (except for the south twenty feet) for farming purposes since at least 1961. The record fully supports the
2

The court issued no finding as to the owner of the south twenty feet. The court did not find that the Tools had proven title by acquiescence.

5 court's finding. To the court's analysis, we need only add that the Tools had no actual knowledge of anyone else claiming title to the triangle north of the south twenty feet until 2006. The Nolins had a valid tax deed, but the doctrine of adverse possession presupposes a defective title. Creel v. Hammans, 234 Iowa 532, 534-35, 13 N.W.2d 305, 307 (1944). We now turn to whether the district court correctly determined that the Tools did not establish title by adverse possession to the south twenty feet of the triangle. Our analysis begins and ends with the exclusivity requirement. "[A] claimant's possession need not be absolutely exclusive; it need only be of a type of possession which would characterize an owner's use." Huebner v. Kuberski, 387 N.W.2d 144, 146 (Iowa Ct. App.1986) (quoting 2 C.J.S. Adverse Possession

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