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IN THE COURT OF APPEALS OF IOWA No. 7-503 / 07-0020 Filed August 22, 2007 LEO SIMON and DEANN SIMON, Plaintiffs-Appellants, vs. DUBUQUE COUNTY BOARD OF SUPERVISORS, DUBUQUE COUNTY, IOWA, MARGARET A. FELDMAN, CHARLES I. MCDERMOTT, IRENE A. MCDERMOTT, PETER J. SIMON, and LAURIE J. SIMON, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Dubuque County, George L. Stigler, Judge.

Property owners appeal from a decision establishing that Dubuque County has a prescriptive easement across their property. AFFIRMED AS MODIFIED.

Dale Putnam, Decorah, for appellants. Ralph Potter, County Attorney for appellees Dubuque County Board of Supervisors and Dubuque County, Iowa. Nathan Moonen, Epworth, for appellees Peter J. Simon and Laurie J. Simon. Anthony Quinn, Dubuque, for appellees Charles I. McDermott, Irene A. McDermott, and Margaret A. Feldman.

Considered by Sackett, C.J., and Vogel and Miller, JJ.

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SACKETT, C.J. Plaintiffs brought this action seeking to quiet title to a road that passes through their property. The defendants, Dubuque County and other residents living along the road, contend the road is owned by the county. The district court held the county had acquired a prescriptive easement to use the road. It found the easement spanned the roadway surface width of twenty-two feet and an additional five feet on each side of the roadway. The court held the county's prescriptive easement right includes the right to maintain the easement. The plaintiffs appeal each of these findings. We affirm as modified. BACKGROUND. The road at issue traverses approximately two miles through a rural area of Dubuque County and provides ingress and egress to residents who live along the road. It was most likely constructed in the late 1800s. The public has used the road from the 1930s to present. The road was originally known as Simon Road. In the 1990s, the county named the road "Dry Hollow Road" as it was establishing its 911 emergency dispatch system. At that time, the county posted a sign at the road identifying it as "Dry Hollow Road." The road passes through several parcels of property and varies in width. At its northwest intersection with Heisler Road, it passes through plaintiffs', Leo and Deann Simons' property. To the south and east, the road travels through parcels owned by defendants, Margaret Lehmann, Charles and Irene McDermott, and Peter and Laurie Simon. These defendants contend that the county owns the road and has historically provided maintenance such as laying gravel, blading, snow removal, and mowing along the road. In June of 1998, the

defendants petitioned the county to classify a portion of the road as Class C.

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This classification allows the county to gate off the road, restrict public access, and provide minimal maintenance. The residents sought this classification out of concern that people were damaging the roadway by driving "mudders" through the area and illegally dumping material along Dry Hollow Road. In response to the petition, the county classified most of the road through the McDermott and Peter and Laurie Simon properties as Class C. However, the county continued to provide gravel and standard maintenance to the rest of Dry Hollow Road, including the portion that crosses plaintiffs' property. Plaintiffs acquired their property in September of 1998 with knowledge of the roadway and the public's use of Dry Hollow Road. Between 1999 and 2002, Leo Simon sought four right-of-way permits from the county to do work that would affect or disturb the roadway, such as digging a waterline or shaping ditches and culverts. Each permit was granted. In 2004, a land survey revealed that the actual path of Dry Hollow Road varies from its platted route and therefore, the county does not own the property containing the roadway. At some point after the survey, plaintiffs laid sod to narrow the road, began demanding the county cease maintenance of the road, and filed suit to establish their fee simple ownership of the road free of any easements or claims of right by defendants. The county and neighboring resident defendants contend that even if the county does not own the property, the road remains a public road because the county acquired a prescriptive easement to use the road. The district court held the county had acquired a prescriptive easement to twenty-two feet of the graveled roadway surface and five feet on each side of the road. The court concluded that rights to this easement included the county's right to perform

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regular maintenance on the roadway. The plaintiffs appeal the findings. We affirm as modified. SCOPE OF REVIEW. Actions to quiet title are equitable proceedings. Iowa Code

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