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IN THE COURT OF APPEALS OF IOWA No. 0-709 / 09-1918 Filed December 22, 2010 LINDA S. GIBSON, Respondent-Appellant, vs. DAVID E. HATFIELD, Petitioner-Appellee. _______________________________________________________________ Appeal from the Iowa District Court for Dallas County, Darrell Goodhue, Judge.

Linda Gibson appeals the district court`s denial of her request to confirm an easement by implication over the land of her neighbor, David Hatfield. AFFIRMED.

James S. Blackburn of Williams, Blackburn and Maharry, P.L.C., Des Moines, for appellant. George A. LaMarca and Christopher J. Langpaul of LaMarca & Landry, P.C., Des Moines, for appellee.

Considered by Sackett, C.J., and Potterfield and Tabor, JJ.

2 TABOR, J. Plaintiff Linda Gibson appeals the district court`s denial of her request to confirm an easement by implication over the land of her neighbor, David Hatfield. Because the record reveals nothing about the activities giving rise to beneficial enjoyment of what is now Gibson`s land before the property was severed into two parcels, the type of access provided by the road at issue, or the necessity of using the road to attain the beneficial enjoyment before severance, we affirm the district court`s finding that no easement by implication exists. I. Background Facts and Procedures Gibson and Hatfield own adjoining parcels of property. A steep, wooded bluff runs across the Gibson lot and divides the northern and southern portions of that property. For nearly thirty years, Gibson has used a gravel road that runs across Hatfield`s property to access the rear portion of her lot. She alleges that land is inaccessible by a vehicle without the use of the gravel road and asks the court to confirm she has an easement by implication in the gravel lane. The properties now owned by Gibson and Hatfield were previously owned as one parcel by Harvey Florer, who purchased the unified property in 1950. He separated the properties in 1955 when he sold the five-acre Gibson land (the now-claimed dominant estate), to Bob and Annabelle Smith. In 1967, the Smiths sold the property on contract to Lyman and Lola McKee, who later

3 sold the property to Jon and Linda Gibson in 1978. transferred to Linda Gibson.1 Florer retained the Hatfield property (the now-claimed servient estate) until 1956, when he sold the land to Cecil and Claire Drew.2 In 1988, the property was sold to John and Marilyn Scaglione and, in 2007, Marilyn Scaglione sold the land to Hatfield. When Hatfield purchased the property in 2007, he was represented by a realtor who specifically told him there were no easements. Hatfield inspected the property himself, updated the abstract and had an attorney review it, ordered a title opinion, and reviewed the sellers` disclosure statement. None of those activities disclosed an easement. In 2008, Hatfield placed a chain across the roadway, preventing Gibson from using the drive. Both properties are bordered on the south by Maffitt Lake Road and the larger Hatfield property borders the Gibson property on both the north and east. Gibson submits that her property consists of three distinct topographical sections. The front section sits atop a bluff. Gibson`s home, garage, and storage shed are located there. The middle section consists of a steep, In 1995, title was

wooded bluff that extends nearly the entire width of the property and comprises approximately one acre of land. The rear section, access to which is at issue in this case, is flat and lies below the wooded bluff. The Gibsons use this portion for gardening and recreational purposes. The Gibsons testified that engaging in land stewardship on the rear portion of their property provides them with

1 2

The parties transferred title to Linda Gibson for estate planning purposes. After Cecil Drew passed away, First Interstate Bank held title, as trustee, until 1988, when the property was sold to John and Marilyn Scaglione.

4 enjoyment and that they need to use motor vehicles when performing some of these activities. Jon Gibson testified they used the gravel road across the Hatfield property on average of once per week for thirty-one years to access the rear portion of the property. The gravel road begins at Maffitt Lake Road, proceeds through the Hatfield property, turns west after passing the bluff and, Gibson contends, leads to a pair of gateposts on the Gibson-Hatfield property line. Jon Gibson testified that he believes the road is meant to allow access to the rear portion of the Gibson property through the gateway that exists there. Hatfield argues the road is located entirely on the Hatfield property, never runs into the Gibson property, but instead turns and extends far north providing access to the northern fields on the Hatfield property. Marilyn Scaglione, the prior owner of the Hatfield property, stated the road approaches but never crosses onto the Gibson property. The road at issue existed in 1955 when Florer divided the unified property by selling the Gibson parcel and retaining the Hatfield land. Florer testified that at the time he separated the unified properties, he told Smith (to whom he sold the Gibson land) that Smith could use the road running across the property Florer retained (the Hatfield parcel) and that Smith did use the road to access the rear section of his property. Florer testified that when he sold the Hatfield property to Drew, he told Drew he wouldn`t sell [the property] to him unless he agreed to let the . . . neighbors use it. Florer testified that Drew let the Smiths, and later the McKees, use the road.

5 Hatfield testified that both before and after Gibson filed suit against him, he made written and verbal offers to the Gibsons to let them use the road if they would make a reasonable effort to call him first, and that in the event they could not reach him or it was an emergency, they would have access to a key in a lockbox. Gibson filed a petition for declaratory judgment on January 15, 2009, seeking an easement by implication over the gravel road running across Hatfield`s property. The matter was tried in equity on October 29

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