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IN THE COURT OF APPEALS OF IOWA No. 9-030 / 08-1058 Filed April 8, 2009

JAMES D. TOWNSEND and TOWNSEND CRANE SERVICE, L.C., Plaintiffs-Appellees/Cross-Appellants, vs. WILLIAM D. NICKELL and LAVERNA L. NICKELL; NANCY LOU NICKELL a/k/a NANCY LOU SCOTT and RICHARD EUGENE SCOTT; LINDA LEA NICKELL a/k/a LINDA LEA CAPPER a/k/a LINDA LEA WINTERBURN and TIME WINTERBURN; BERNICE C. NICKELL a/k/a BERNICE C. COMMERS; and JAMES NICKELL, Defendants-Appellants/Cross-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Washington County, Joel D. Yates, Judge.

Defendant claims that the district court erred in not awarding him attorney fees in an action in which he successfully defended a claim to a parcel of land. Plaintiff cross-appeals, contending that the district court erred in denying his adverse possession and prescriptive easement claims to the property. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Steven Ballard of Leff Law Firm, L.L.P., Iowa City, for appellant. Richard Bordwell, Washington, for appellee.

Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.

2 VAITHESWARAN, J. This appeal and cross-appeal arise from a boundary dispute. Bill Nickell, who successfully defended a claim to a parcel of land, contends the district court should have awarded him attorney fees. James Townsend asserts that he is entitled to the disputed property through adverse possession or, in the alternative, that he is entitled to a prescriptive easement to use the property. We affirm in part, reverse in part, and remand. On Nickell's petition for rehearing, we grant his request for rehearing on his claim for appellate attorney fees and substitute this opinion for the opinion filed on March 11, 2009. I. Background Facts and Proceedings James Townsend and his wife purchased a piece of real estate. Later, Bill Nickell, who owned adjacent property, agreed to sell a portion of his land to Townsend. Townsend claimed that he and Nickell agreed to have a sheep fence serve as the northern boundary to the property. Nickell claimed that the two agreed to a boundary line that made the parcel square. Nickell had the land surveyed, with Townsend declining to be present. That survey described a northern boundary that was consistent with Nickell's understanding. The parcel with this boundary was designated Parcel A. The disputed land between the sheep fence and the boundary line that Nickell claimed the parties agreed upon came to be known as Parcel C. A real estate contract signed by Townsend and Nickell referred only to Parcel A. Parcel A. Townsend received a warranty deed that only made mention of

3 Townsend installed a septic tank on a portion of Parcel A. He later

installed a septic leach field that extended onto Parcel C. He also began storing equipment on the north edge of Parcel C in an attempt to mark the boundary he ascribed to. Nickell moved these items back to Parcel A. Townsend placed heavier equipment there that was not moved. Two years after the real estate contract was signed, Nickell set posts to mark the Parcel A boundaries and prepared to farm Parcel C. After Nickell's tenant farmer attempted to farm the land, Townsend approached the farmer and told him not to drive over Parcel C because it would destroy his leach field. Nickell told the farmer to farm it anyway, because he owned the land up to the posts. The tenant farmer declined to do so. Over the years, Townsend offered to pay Nickell for Parcel C. Nickell declined the offer. Townsend filed a petition to quiet title and an application for injunction, claiming that he was the owner of Parcel C. He subsequently added claims of adverse possession and prescriptive easement. The district court ruled in favor of Nickell on all claims. Nickell sought the payment of attorney fees under a provision in the real estate contract that authorized a successful party to recover attorney fees and costs [i]n any action or proceeding relating to this contract. The district court denied the request. A second motion was also denied on the ground that [t]he defendants offered no evidence at trial as to the issue of attorney fees. Nickell appealed and Townsend cross -appealed. We will

address the cross-appeal first.

4 II. Adverse Possession On cross-appeal, Townsend argues that the evidence submitted to the district court was sufficient to establish [his] ownership of Parcel C by adverse possession. Our review of this issue is de novo. Mitchell v. Daniels, 509

N.W.2d 497, 499 (Iowa Ct. App. 1993). 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). Proof of each of these elements must be clear and positive. Id. The doctrine of adverse possession is strictly construed because the law presumes possession is under a regular title. Id. 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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