Opinion
No. 2-1007 / 02-0642
Filed August 27, 2003
Appeal from the Iowa District Court for Linn County, Larry J. Conmey, Judge.
Plaintiffs appeal from the district court's dismissal of their petition for permanent injunction and establishment of a new property boundary based on acquiescence, and the court's grant of defendant's counterclaim to establish an easement. AFFIRMED.
Zorica Ilic of Sporer Ilic, P.C., Des Moines, for appellants.
John Monroe of Titler Monroe, Cedar Rapids, for appellee.
Heard by Vogel, P.J., and Miller and Eisenhauer, JJ.
Plaintiffs Suzanne and Warren Stoner appeal from the district court's dismissal of their petition for permanent injunction and their "counterclaim" seeking to establish a new property boundary based on acquiescence for ten years or more, and the court's grant of the defendant Faye Alger's counterclaim to establish an easement for ingress and egress over two feet of plaintiff Suzanne Stoner's property.
This dispute involves parts of two adjoining lots, Lots 3 and 4 in "Block 2 Original Town of Mt. Vernon, Iowa." Both lots front on and lie to the southwest of First Street West, which runs in a southeast-northwest direction. The rear of each lot adjoins an alley which also runs in the same southeast-northwest direction. Lot 4 lies to the southeast of Lot 3. Lot 4 is bordered on the east by Washington Street, which runs in a northeast-southwest direction.
This case was filed as an equity action and neither party sought or secured an order transferring the case or any claim or issue to the law docket. The parties assert the case is an equity action and was tried as an equity action and that our review is de novo. We will accordingly conduct a de novo review. See Iowa R.App.P. 6.4 ("Review in equity cases shall be de novo."). In a de novo review we examine the facts as well as the law and decide anew issues properly preserved. Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 811 (Iowa 2000).
We recognize that the plaintiffs' "counterclaim" which references and relies on Iowa Code chapter 650 is a special action, s ee Iowa Code § 650.4 (2001), such an action is considered on appeal as an ordinary action, Egli v. Troy, 602 N.W.2d 329, 332 (Iowa 1999), and as in an action at law our review of that claim would ordinarily be on assigned errors of law, s ee Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997). However, as the case was filed and tried in equity, the other claims are equitable in nature, and both parties assert a right to de novo review, we will so proceed.
Plaintiff Suzanne Stoner owns the northwest one-third of Lot 4. She acquired a one-half interest in that property from her mother's estate in 1988. She purchased the other one-half interest from her brother, also in 1988. A commercial building is located largely on that one-third of a lot but extends about two feet onto adjoining Lot 3. Suzanne Stoner's building has a street address of 104 First Street West. For convenience we will at times refer to the Stoner property as "104."
In August 1986 defendant-counterclaimant Faye Alger and her late husband, Larry, purchased a portion of Lot 3. In relevant part their deed describes Faye Alger's property as
Commencing at a point on Main Street 1 foot NW of the E corner of said Lot 3; thence SW-ly parallel with Washington Street 132 feet to the SW line of said Lot; thence NW-ly along SW line of said lot and parallel with Main Street 21 feet; thence NE-ly parallel with Washington Street . . . 132 feet to SW side of Main Street; thence 21 feet to beginning, containing 2772 square feet.
A commercial building is located on and covers all of the Alger property except the one foot nearest that part of Lot 4 owned by Suzanne Stoner and an additional "dead space" of one foot or less between the two buildings. Faye Alger's building has a street address of 106 First Street West. For convenience we will at times refer to the Alger property as "106."
The Alger and Stoner commercial buildings are essentially adjoining, although there is apparently a one foot or less dead space between their exterior brick walls, with a cap over the walls where they extend above the rest of the buildings. Each building has commercial space on its street level floor. Alger's building had one residential apartment on its upper, second-story floor until after a late 1996 fire. The Algers thereafter remodeled their second story apartment into two apartments. Stoner's building has two residential apartments on its upper, second-story floor.
For at least seventy years the users or occupants of the second-story apartments in the two buildings have accessed those spaces through a common stairway/hallway. The stairway/hallway is approximately four feet wide. It was apparently built as part of the Stoner building, as it is physically part of that building. However, the Stoner building extends two feet beyond Lot 4, that is two feet onto Lot 3, on which the Alger building is located. Thus only two feet of the four-foot stairway/hallway lies on that portion of Lot 4 to which plaintiff Suzanne Stoner holds record title.
When the Algers bought their property in late 1986 there was no discussion regarding the location of the lot line between Lot 4 and Lot 3, and apparently no survey was conducted. The Algers were aware of the shared stairway/hallway and gave no thought to the location of the lot line. When Suzanne Stoner acquired her property in 1988 no survey was conducted. No dispute concerning the boundary between 104 and 106 occurred until the events that gave rise to this lawsuit.
In 1995 the Stoners decided to remodel the shared stairway/hallway in order to eliminate a small room that was part of it. Larry Alger agreed to share the expense. A dispute subsequently developed and the Algers initially refused to pay any part of the remodeling expense because they felt they were not informed of the extent of the project and had no input concerning the amount of expense to be incurred.
A late 1996 fire started in the Alger building but damaged the stairway/hallway and the apartment in the Stoner building as well. The Algers sought to remodel their second-story apartment into two apartments with both having access from the shared stairway/hallway. The Stoners objected to another apartment having access from the stairway/hallway, and requested that the Algers develop separate access to their apartments. The parties' relationship became strained. The Algers developed access to their second, rear apartment from a building at 108 First Street West, a building owned by their sons. However, they insisted upon the right to use the shared stairway/hallway for access to their front apartment and continued to so use it. The Algers later paid $805.90 for new carpet for the stairway/hallway. They apparently paid nothing more toward the remodeling expense and in 2000 Suzanne Stoner requested that Faye Alger pay one-half that expense, approximately $1,100.
In August 2000 the Stoners filed a petition in equity which in relevant part sought an injunction. It alleged that Alger relied "on Plaintiff's property," "Plaintiff's hallway," for herself and her tenants, and that Alger had no easement for such use. It sought a declaration that no such easement existed, and an order prohibiting Alger and her tenants from entering "said property" for entrance to and exit from Alger's property.
Alger filed an answer and counterclaim. She denied certain allegations of the petition. She asserted she had an easement over 104 for access to the apartment above 106, and that she and her predecessors in title had always claimed a right to use the stairway/hallway for more than ten years. She requested a declaration that she had an easement over 104 for ingress to and egress from the apartment above 106, and for other appropriate equitable relief.
Alger later filed an amendment to her answer and counterclaim. In relevant part the amendment to her counterclaim asserted that from the time she purchased 106 and for many years prior thereto the only ingress to and egress from the apartment above 106 had been by way of a stairway and hall located partially on 104 and partially on 106, asserted she had an easement over the portion of the common hallway located on 104 for access to the apartment above 106, and asserted she and her predecessors in title had always claimed a right to use the portion of the common stairway and hallway located on 104 for more than ten years. Her amendment resulted in part from a professional survey of the properties conducted at her request in June 2001 which showed that Stoner's building extended two feet beyond that portion of Lot 4 owned by Stoner, and thus two feet onto Lot 3. Stoner's building thus extended onto and across one foot of Lot 3 to which neither of the parties holds record title, and then one additional foot onto that part of Lot 3 owned by Alger. The result is that approximately two feet of the shared hallway is on land to which Stoner holds record title, the next one foot is on land to which neither party holds record title, and the remaining one foot is on land to which Alger holds record title. A subsequent survey by another surveyor, hired by Suzanne Stoner, confirmed the accuracy and results of the first survey.
There is also a narrow dead space between the two buildings. The southwest wall of the Alger building is thus somewhat more than two feet from the boundary line between Lots 4 and 3.
Stoner filed an "answer" to Alger's amended counterclaim together with what she denominated as her own "counterclaim." In relevant part her "counterclaim" requested that the court review the boundary dispute pursuant to Iowa Code chapter 650 (2001), set the matter for hearing pursuant to section 650.9, and appoint a commission pursuant to section 650.7. Stoner requested that the court enter a decree setting the boundaries of the parties' properties as the boundaries determined by the buildings on the properties, and for such other relief as the court deemed appropriate. She asserted such boundaries had been recognized and acquiesced in by the parties for more than ten years. In effect, she requested as relief that the court decree that her property includes two feet of Lot 3, thereby encompassing both the one foot of Lot 3 to which neither party holds legal title and the next one foot, to which Alger holds legal title.
The case proceeded to a bench trial. The district court denied Stoner's requests to establish a new boundary based on acquiescence and for an injunction. It granted Alger's amended counterclaim, establishing an easement in her favor for ingress and egress over the two feet of Stoner's part of Lot 4 which lies under the shared stairway/hallway. In doing so the trial court reached, among others, the following conclusions: (1) Stoner had "failed to establish by clear evidence acquiescence in a boundary other than the legal descriptions of the parties' respective properties"; (2) "Given the common usage of the stairway for more than 70 years and the fact that the stairway rests in part on both parties' properties, it would be inequitable for the Court to redraw the boundary line and exclude either party from using the stairway"; and (3) "Based on the common usage of the shared stairway for over seventy years, the maintenance and improvements to the hallway made by the Defendant and her predecessors, the lack of other access to the front apartment above 106 and the fact that Defendant owns a portion of the stairway, the Court finds that Defendant has established by clear evidence an entitlement to an easement over the portion of 104 which lies within the shared stairway."
Easements in real estate may be established in various ways, such as by written grant, by prescription, by necessity, or by implication. Webb v. Arterburn, 246 Iowa 363, 378, 67 N.W.2d 504, 513 (1954). Alger's pleadings asserted she had an easement by prescription and by necessity.
Alger also claimed she had an easement by adverse possession. An easement by prescription is similar to the concept of adverse possession and we apply the principles of adverse possession to establish a prescriptive easement. Collins Trust v. Allamakee County Bd. of Supervisors, 599 N.W.2d 460, 463-64 (Iowa 1999). However, there is a fundamental distinction in that an easement by prescription concerns the use of property while adverse possession deals with the acquisition of title to property by possession. Id. at 464. Although the parties have at places used the terms interchangeably, we will use only the applicable terms of "prescriptive easement" or "easement by prescription."
On appeal the plaintiffs assert defendant Alger "has no easement or any right of access to plaintiff's hallway." They point out that the trial court did not expressly indicate which form of easement Alger had proved. They assert the trial court "erred in granting an easement because Defendant had failed to establish all the elements required to gain an easement by implication either under [easement by prescription] or necessity."
The plaintiffs first claim that Alger "has no legally recorded, assigned or leased easement onto the property known as 104," and that she "has no legally recorded express written easement." Alger made no claim to an easement by written grant, the trial court did not address any question of a written or recorded grant of an easement, and we readily agree no evidence supports an easement by written grant.
The plaintiffs also claim that Alger "cannot show that she is entitled to an easement by necessity." Because we find Alger has proved an easement by prescription, we need not address this issue.
We believe that the trial court's ruling, although not expressly so stating, found an easement by prescription. For the reasons that follow, upon our de novo review we also find that Alger proved an easement by prescription.
Collins Trust summarizes a large part of the law concerning prescriptive easements that applies to the facts of this case. We therefore quote from it at length.
One recognized method to establish an easement is by prescription. Mensch v. Netty, 408 N.W.2d 383, 387 (Iowa 1987); s ee also 25 Am.Jur.2d Easements and Highways § 45, at 615 (1996). An easement by prescription is created under Iowa law 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. Larman v. State, 552 N.W.2d 158, 161 (Iowa 1996); Simonsen v. Todd, 261 Iowa 485, 489, 154 N.W.2d 730, 732 (1967); see also Iowa Code § 564.1 (1997). . . .
. . .
The hostility and claim of right requirements of a prescriptive easement are closely related. See Burgess v. Leverett Assocs., 252 Iowa 31, 36, 105 N.W.2d 703, 706 (1960) (conduct which shows intention to hold title exclusive of others shows hostile possession). Hostility does not impute ill-will, but refers to declarations or acts revealing a claim of exclusive right to the land. 3 Am.Jur.2d Adverse Possession § 50, at 143 (1986). Similarly, a claim of right requires evidence showing an easement is claimed as a right. Iowa Code § 564.1; Larman, 552 N.W.2d at 162; s ee also Evert v. Turner, 184 Iowa 1253, 1254, 169 N.W. 625, 626 (1918) (claim of right cannot rest on possession, but needs declaration or acts of hostility to the true owner). Thus, mere use of land does not, by lapse of time, ripen into an easement. 1 Schaller v. State, 537 N.W.2d 738, 742 (Iowa 1995); Merritt v. Peet, 237 Iowa 1200, 1207, 24 N.W.2d 757, 761 (1946). A party claiming an easement by prescription must prove, independent of use, the easement was claimed as a matter of right. Iowa Code § 564.1; Simonsen, 261 Iowa at 496, 154 N.W.2d at 736.
Although mere use does not constitute hostility or a claim of right, some specific acts or conduct associated with the use will give rise to a claim of right. See Barnes v. Robertson, 156 Iowa 730, 733-34, 137 N.W. 1018, 1019 (1912) (finding that where a road had been legally established, used, worked, and improved, the public was acting under a claim of right); Lynch v. Lynch, 239 Iowa 1245, 1255, 34 N.W.2d 485, 490 (1948) (claim of right inferred where party set out trees, erected a house and buildings, enclosed premises by fence, cultivated the land, and treated land precisely as an owner). Thus, acts of maintaining and improving land can support a claim of ownership and hostility to the true owner. See 3 Am.Jur.2d Adverse Possession § 139, at 224; see also Weidner v. Alaska Dep't of Transp., 860 P.2d 1205, 1210-11 (Alaska 1993).
The precise evidence to support the requirements of prescriptive easement can vary, and ultimately, each case rests on its own particular facts.
. . .
Likewise, permissive use of land is not considered adverse or under a claim of right. Mensch, 408 N.W.2d at 387. Permissive use, however, may ripen into a prescriptive easement where "the party claiming the easement has expended substantial amounts of labor or money in reliance upon the servient owner's consent or his oral agreement to the use." Simonsen, 261 Iowa at 489, 154 N.W.2d at 733.
Collins Trust, 599 N.W.2d at 463-64.
Both buildings were built over one-hundred years ago, with 106 being built before 104. The evidence shows that although the apartment above 106 at one time had a rear door, that door opened onto the roof of the lower story and there were no steps or stairway to the ground level which is some twelve feet below. Joy Gaarde's parents owned 106 from 1935 to 1950 and Joy lived in the apartment above 106 during their ownership. Her deposition testimony shows that from at least 1935 on there was no access to the apartment other than through the shared stairway/hallway. No substantial evidence indicates that after 104 was built the apartment above 106 ever had any access other than through the shared stairway/hallway.
Faye Alger believes that before 104 was built 106 had an outside stairway to its second story apartment and that when 104 was built the adjoining property owners agreed the outside stairway would be taken off, the owners of 104 would build over to what is now Alger's building, incorporating a hallway in the new building, and the adjoining owners would share use the hallway. Suzanne Stoner's husband, Warren, agrees at least in part, believing that the shared use of the stairway/hallway was pursuant to an "agreement that somebody made a long time ago." We need not and do not decide whether such an agreement was made, or what the terms of any such agreement were. We do note, however, that the apparent absence of any other access to the apartment above 106, together with the approximate distance of three feet between Alger's building and the lot line (consisting of up to one foot of "dead space" between the buildings, and additional one foot of Lot 3 owned by Alger, and one foot of Lot 3 to which neither party holds record title) strongly suggests that such a stairway existed before 104 was built and it may have been removed as part of an agreement for a shared stairway/hallway.
The Algers bought 106 from David Odeen, who operated a radio and TV store there. Odeen owned 106 from 1976 until he sold it to the Algers in late 1986, a period of ten years or more. Suzanne Stoner's mother, Mrs. Roberts, owned 104 at the time Odeen owned 106. Mrs. Roberts informed Mr. Odeen that he owned part of the shared stairway/hallway, and he was therefore responsible to share in its maintenance and cleaning. Mr. Odeen and his tenants in the apartment above his store shared in the cleaning, and Mr. Odeen provided paint for the stairway/hallway. Based on Mrs. Roberts' representations, Mr. Odeen and his apartment tenants used the stairway/hallway under a claim of right during Odeen's ownership. The use was open, notorious, continuous, and hostile to any claim by Mrs. Roberts, or her successors in interest, that Odeen and his tenants did not have a right to use the shared stairway/hallway.
We conclude clear, convincing, and satisfactory evidence shows that an easement by prescription was created by Odeen and his tenants' use of the shared stairway/hallway under a claim of right. See Webb, 247 Iowa at 380, 67 N.W.2d at 514 (holding that the claimant must establish a claim of easement by evidence that is clear, convincing, and satisfactory). We therefore agree with the trial court that Alger has proved an entitlement to an easement over the portion of 104 which lies within the shared stairway/hallway. This easement is over the northwest two feet of the "Northwest 1/3 of Lot 4 Block 2, Town of Mt. Vernon, Iowa," and is for the limited purpose of ingress to and egress from the upper story apartments above 106.
Although our conclusion concerning Alger's entitlement to an easement is based primarily on Mrs. Roberts' representations to Mr. Odeen and his resulting understanding and actions, it need not and does not rest on that ground alone. As we explain immediately below, a second ground equally supports the establishment of a prescriptive easement.
Each party presented evidence, through the testimony of both that party and a former tenant of that party, that the party and its tenants had cleaned and maintained the shared stairway/hallway. In addition, Alger presented the testimony of a former owner of 106, Odeen, that Odeen and his tenants had shared in the cleaning and maintenance. Alger also presented testimony of Joy Gaarde that she swept the steps a lot when she lived there. Each party and its witnesses indicated that the owners and tenants of the other building had done little to clean and maintain the hallway. We find that the owners of 106 and their tenants expended substantial amounts of labor in cleaning and maintaining the shared stairway/hallway.
The evidence also demonstrates that the owners of 106 have expended substantial amounts of money in maintaining and improving the stairway/hallway. Odeen provided paint. The Algers provided and installed carpeting at a cost of $805.90. The Algers agreed to share in the expense of remodeling the stairway/hallway, although whether Faye Alger may yet owe an unpaid amount toward that remodeling is not an issue in this lawsuit.
Although permissive use is not considered adverse or under a claim of right, Mensch, 408 N.W.2d at 387, it may ripen into a prescriptive easement where the party claiming the easement has expended substantial amounts of labor or money in reliance upon the servient owner's consent or oral agreement to the use. Simonsen, 261 Iowa at 489, 154 N.W.2d at 733. Owners and tenants of 106 have expended substantial amounts of both labor and money in maintaining and improving the shared stairway/hallway. We therefore conclude that even if the use of the stairway/hallway by the owners and tenants of 106 was originally permissive, clear, convincing, and satisfactory evidence shows that such use ripened into a prescriptive easement through this expenditure of labor and money.
An appellant's brief is required to contain under an appropriate heading, "A statement of the issues presented for review." Iowa R.App.P. 6.14(1)( c). The plaintiffs' brief does not state as an issue any claim that the trial court erred in determining the plaintiffs had not proved a new property boundary had been established by acquiescence. The plaintiffs have thus arguably waived any such claim. See Iowa R.App.P. 6.14(1)(c) ("Failure in the brief to state . . . an issue may be deemed waiver of that issue."). They nevertheless assert at one point in the argument portion of their brief that the trial court "erred when it did not grant the Plaintiff the acquiesced boundary." We choose to briefly address the issue.
The trial court concluded in relevant part that the plaintiffs "have failed to establish by clear evidence acquiescence in a boundary other than the legal descriptions of the parties' respective properties. Plaintiffs presented little evidence that they or their predecessors ever claimed ownership of the stairway until 1995 or 1996." We read the latter sentence to mean the plaintiffs presented little evidence of a claim of ownership of that part of the stairway which lies beyond the boundary line between Lot 4 and Lot 3. Clear, convincing, and satisfactory evidence establishes a prescriptive easement in the Alger's favor as discussed above. The same physical, historical, and transactional facts which support the existence of that easement are contrary to the plaintiffs' claim of a new boundary by acquiescence. We agree with the trial court that the plaintiffs did not prove by clear evidence acquiescence in a boundary other than as established by the legal descriptions of the parties' properties.
We briefly note certain issues that we do not decide. We do not undertake to say that if plaintiff Stoner's building were to be entirely destroyed, or the stairway/hallway portion were to be destroyed or damaged to the point repair or reconstruction was impractical or impossible, that Alger or her successors in interest would continue to have an easement in that portion of Stoner's property over which the shared stairway/hallway now exists, as that question was not presented to or passed on by the trial court and is not raised on appeal. See, e.g., Kane v. Templin, 158 Iowa 24, 28, 138 N.W. 901, 902 (1912) (declining to state whether plaintiff would continue to have an easement in that portion of defendants' lot over which shared stairways and a hallway were located if the building which included separately owned stores were entirely destroyed, as the question was not before the court on appeal). Nor do we decide whether Stoner has an easement in that portion of Alger's property over which the shared stairway/hallway now exists, as that question is also not before us. Finally, we do not decide whether Alger still owes Stoner for a portion of remodeling expenses, as that is not an issue in this lawsuit.
We conclude Alger proved an entitlement to an easement by prescription, and therefore affirm the judgment of the trial court.