Opinion
No. 2-895 / 02-0166.
Filed March 12, 2003.
Appeal from the Iowa District Court for Delaware County, JAMES C. BAUCH, Judge.
Appeal from a landowner dispute in which the district court denied the appellants' adverse possession claim and ordered appellants' to pay both attorney fees and a portion of the survey costs. AFFIRMED IN PART AND REVERSED IN PART.
William Werger of Hanson Werger, Manchester, for appellants.
Kenneth Dolezal of Dolezal Law Office, Cedar Rapids, for appellees.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Two sets of landowners dispute the ownership of a parcel of land. The district court rejected an adverse possession claim and ruled that the parcel belonged to the landowners with legal title. The court also awarded the prevailing landowners attorney fees and survey costs. We affirm in part and reverse in part.
I. Background Facts and Proceedings
Galen and Eleanor Beitz purchased a farm north of the Maquoketa River. James and Jeanann Bailey later purchased land south of the Beitzes' property from a man named Leo O'Rourke. Both the Beitzes and the Baileys claimed a 2.1 acre tract of land sitting immediately north of the Maquoketa River. The land is inaccessible by vehicle and is bordered on the north by wooded bluffs and on the south by the river.
The Beitzes filed a petition to quiet title, alleging they were entitled to the parcel by adverse possession. The Baileys responded by claiming legal title to the parcel was in their name. They also sought costs and attorney fees. The district court ruled that the Baileys were the rightful owners of the property. The court awarded the Baileys $2500 in attorney fees and $4000 in surveying costs.
The Beitzes filed a Rule 1.904(2) motion to delete the award of attorney fees and survey costs. The district court overruled the motion.
On appeal, the Beitzes claim: 1) they established adverse possession and 2) the district abused its discretion in ordering them to pay the Baileys' attorney fees and surveying costs.
II. Adverse Possession
Adverse possession deals with the acquisition of title to property by possession. Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001). To establish title by adverse possession, a party must show by "clear and positive" proof, 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). "It is enough if the person . . . takes and maintains such possession and exercises such open dominion as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition ." Id., quoting Whalen v. Smith, 183 Iowa 949, 953, 167 N.W. 646, 647 (1918). Because the law presumes possession under regular title, the doctrine of adverse possession is strictly construed. Id. Carpenter v. Ruperto, 315 N.W.2d 782, 784 (Iowa 1982).
The district court found the Beitzes failed to carry their burden of proof. The court stated:
The small parcel in question in this case is located in a remote section near the river. Plaintiffs had cattle on this property for only a few days each year and it could hardly be said that the possession was open, exclusive, continuous or hostile. O'Rourke, who was the landowner to the south, occasionally had his cattle on the property and never observed anything that would be contrary to his ownership of the property. In fact, he and Plaintiff sometimes worked together to get O'Rourke's cattle back across the river from the parcel and Plaintiff never asserted this parcel of land was his. O'Rourke also hunted on this land when he owned the property. When he conveyed the land to the defendants he indicated that this was their property and the survey correctly sets out that the property to the north of the river is within their property lines. The defendants took immediate steps when they observed a fence running parallel to the river which they believe was put in approximately 1994 and the Court finds their testimony to be credible. At this point it could be said that the plaintiffs were asserting open, exclusive, continuous or hostile possession. The defendants attempted to negotiate moving the fence with Plaintiffs and this action eventually arose. The Court further finds that the plaintiffs have failed in their burden to establish claim of right to this land.
Our review of these findings is de novo. See Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 811 (Iowa 2000).
The record contains few undisputed facts. Mr. Beitz concedes he does not have legal title to the parcel, but claims his realtor told him all the property down to the river was his. Mr. Bailey claims he received the same advice from his realtor when he purchased the property from Leo O'Rourke. Mr. Beitz asserts O'Rourke never laid claim to the disputed parcel but O'Rourke says he told Mr. Beitz he owned the property. Mr. Beitz claims he pastured cows on the disputed parcel. Bailey says he never saw cows pastured there.
In the face of these conflicting accounts, the district court's credibility determination in favor of Bailey becomes significant. As we are in equity, we give weight to it. Rand v. Miller, 250 Iowa 699, 704, 95 N.W.2d 916, 920 (Iowa 1959).
Examining the evidence in light of this credibility assessment, we believe the Beitzes did not furnish "clear and positive" proof of adverse possession. Although Mr. Beitz claims a north-south fence running down to the river confirms his ownership of the disputed parcel, that fence only demarcates the western boundary to the property and does not surround the disputed parcel. As for an east-west fence that Mr. Beitz erected to the south, the record reveals it had been in existence for less than ten years and, on noticing it, Mr. Bailey immediately complained and asked that it be removed. Even at this point, Mr. Beitz conceded he did not post signs or take other actions to establish exclusive dominion over the property. For these reasons, we affirm the district court's ruling that the parcel belonged to the Baileys.
Beitz also appears to argue that he is entitled to the property on a theory of accretion. As the district court did not address this theory in its ruling, we have nothing to review. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
III. Attorney Fees and Surveying Costs A. Attorney Fees. The district court ordered the Beitzes to pay $2500 of the Baileys' attorney fees. The Beitzes contend this award lacks statutory support.
Iowa Code section 649.4 on which the court relied states, "[i]f the defendant appears and disclaims all right and title adverse to the plaintiff, the defendant shall recover the defendant's costs. In all other cases the costs shall be in the discretion of the court." This provision makes no express reference to attorney fees. In the absence of an express reference, attorney fees are not taxable as costs. City of Ottumwa v. Taylor, 251 Iowa 618, 622, 102 N.W.2d 376, 378 (1960).
The Baileys, nevertheless rely on the case of Hurni v. Sioux City Stockyards Co., 138 Iowa 475, 114 N.W. 1074 (1908), cited in the annotations to Iowa Code section 649.4. However, that case affirmed an award of attorney fees under Iowa Code section 649.5 rather than 649.4. Section 649.5 expressly authorizes attorney fees "in addition to the ordinary costs of court," although it limits recovery to $25 if the parcel is smaller than forty acres. Section 649.4 does not contain analogous language. As section 649.4, on which the court relied, does not authorize an award of attorney fees, and section 649.5 does not by its terms apply, we reverse the award of attorney fees.
B. Survey Costs. The district court taxed $4000 in survey costs to the Beitzes. Costs include "the sums ordinarily taxable for expense incurred in an action as provided by statute." Iowa Dep't of Transp. v. Soward, 650 N.W.2d 569, 572 (Iowa 2002) quoting Taylor, 251 Iowa at 621, 102 N.W.2d at 378. We are not persuaded that survey costs fall within these parameters, as the survey was performed almost eighteen months before the lawsuit was filed. Because it was not "an expense incurred in the action" this expense is not taxable as a cost. See Mader v. Stephenson, 481 P.2d 664, 665 (Wyoming 1971); Bathgate v. Irvine, 126 Cal. 135, 149, 58 P. 442, 447 (1899); Litatanaka v. Struhs, 738 P.2d 1052, 1055 (Utah Ct.App. 1987).