Opinion
No. 5-776 / 05-0741
Filed November 23, 2005
Appeal from the Iowa District Court for Jasper County, Dale B. Hagen, Judge.
Plaintiffs appeal from the district court's order dismissing their petition at law which sought to enjoin defendants from interfering with their alleged easement. AFFIRMED.
Lee M. Walker of Walker, Knopf Billingsley, Newton, for appellants.
Bruce Nuzum of Matthias, Campbell, Tyler, Nuzum Rickers, Newton, for appellees-cross appellants.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Plaintiffs Michael and Dianna Nolin appeal from the district court's order dismissing their petition at law which sought to enjoin defendants James and Cynthia Tool from interfering with their alleged easement. They contend the court erred in finding no easement exists and the court erred in failing to recognize an easement by prescription. The Tools cross-appeal alleging the court erred in failing to dismiss the Nolins' claims at the close of their evidence. We review their claims for errors at law. Iowa R. App. P. 6.4.
Since purchasing their property in 1978, the Nolins have used a lane on the land now owned by the Tools for access to their land. Direct access to the Nolins' land is blocked by Buck Creek. A bridge once spanned the creek, but there has been no bridge since the 1950s.
In 1989, Michael Nolin wished to erect a gate on the lane. At that time, Arthur Q. Tool, Jr. owned the property at issue. Tool's attorney wrote a letter to Nolin in which he stated:
Your use of this wagon road is caused by the old bridge going out and making it necessary for you to find an alternate way to get to your land north of Buck Creek, and Mr. Tool is willing to work with you for that purpose, but he wants the right of ingress to remain for occasional agricultural purposes and does not want to install any gates that would make for a more intensive use of the premises.
On January 1, 2003, James Tool sent a letter to Michael Nolin, informing him that he would no longer be able to use the lane to access his property. In May 2003, Tool plowed the lane and planted crops.
On May 14, 2004, the Nolins filed a petition alleging an easement for the lane and seeking to enjoin the Tools from preventing their use of the lane. Trial was held in March 2005. On March 30, 2005, the district court dismissed the Nolins' petition. A motion to enlarge and reconsider was overruled.
We first consider the Nolins' claim that the Tools do not have an interest in the lane. They ask us to examine the chain of title and determine that the Tools do not own the lane in question. This issue was not presented to or ruled upon by the district court. Accordingly, we will not consider this issue for the first time on appeal. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
The Nolins next contend the district court erred in dismissing their petition because the evidence proves they have a prescriptive easement. Under Iowa law, an easement by prescription is created when a person uses another's land under a claim of right or color of title, openly, notoriously, continuously, and hostilely for ten years or more. Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001). Permissive use of land does not establish an easement by prescription absent any showing that the party claiming the prescriptive easement claimed it as a matter of right or under any color of title. Mensch v. Netty, 408 N.W.2d 383, 387 (Iowa 1987).
We hold the district court did not err in finding the Nolins did not have an easement to use the lane on the Tools' property. The evidence, such as the 1989 letter, shows the Nolins had permissive use of the land. There is no evidence that the Nolins ever made a claim of right to the lane until a few years prior to the Tools' end of permissive use. Because the Nolins were unable to prove the elements of easement by prescription, the district court properly dismissed their petition.
On cross-appeal, the Tools contend the district court erred in not granting the motion to dismiss made at the close of their evidence. Because we affirm the district court's dismissal of the Nolins' petition, this issue need not be considered.