Opinion
No. 04-0740.
March 16, 2005.
Appeal from the Iowa District Court for Butler County, John S. Mackey, Judge.
Plaintiffs appeal the district court's grant to defendants of an easement across their property. REVERSED AND REMANDED.
Dale Goeke of Hagemann Goeke, Waverly, for appellant.
Chris Foy of Leslie, Collins Foy, Waverly, for appellees.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
I. Background Facts Proceedings
In 1971 Charles Osweiler subdivided property near the Shell Rock River in Butler County. John Fink purchased Lots 3 and 6. Osweiler retained Lot 7, which was to the south of Fink's lots. Osweiler built a gravel driveway, which started to the east of Lot 6 and proceeded diagonally southwest across Lot 7.
Danny and Brenda Christie eventually became the owners of Lot 7 and a house was built on the lot. In 1979 Fink purchased some property on the northern edge of Lot 7. The Christies retained "a perpetual easement over the easterly 33 ft. of the land conveyed by this Warranty Deed, said easement to be used for purposes of access to the balance of the said Lot 7."
The thirty-three foot express perpetual easement did not follow the existing driveway. Although the gravel driveway traversed the portion of Lot 7 purchased by Fink, the Christies and their successors continued to use the gravel driveway. Fink was aware of this use, but was not concerned because he did not live on his lots.
The Christies' property was subsequently purchased by Arnold and Rosalie Entzi, then Harold and Marilyn Erickson, and finally by Gary and Annabelle Koop.
In 1994 Robert and Linda Brede purchased Fink's interest in Lots 3, 6, and 7. They built a house on the property. Since 1991 the Christies' property has been owned by Gary and Annabelle Koop. Gary Koop testified that he used the gravel driveway to access his property in his car. However, he also accessed his property by using the thirty-three foot express perpetual easement when he had larger equipment, because the area of this easement was wider than the gravel driveway.
In August 2001 the Bredes asked the Koops to relocate their access lane to the area of the thirty-three foot express perpetual easement. The Koops refused. On May 12, 2003, the Bredes filed suit claiming the Koops were trespassing on their property and seeking an injunction to limit the Koops to using the express easement. The Koops filed a counterclaim alleging that they should also be able to use the gravel driveway under a prescriptive easement or easement by implication.
The district court determined the Koops had sufficiently shown the requisite elements for an easement by prescription. The court determined the gravel driveway was established as a permanent perpetual easement over the Bredes' property. In the alternative, the court found the Koops had also established an easement by implication. The Bredes appealed.
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. We give weight to the trial court's factual findings, especially in matters of credibility, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Prescriptive Easement
There are four ways to create an easement: (1) by express grant or reservation, (2) by prescription, (3) by necessity, and (4) by implication. Nichols v. City of Evansdale, 687 N.W.2d 562, 568 (Iowa 2004). We first address the Koops' claims regarding an easement by prescription. 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." Id. (citation omitted). All parties agree the Koops do not have color of title.
The Koops must therefore show, independent of use, that the easement is claimed as a matter of right. Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001). The "mere use of land does not, by lapse of time, ripen into an easement." Collins Trust v. Allamakee County Bd. of Supervisors, 599 N.W.2d 460, 464 (Iowa 1999). A party may show a claim of right by specific acts or conduct associated with the use of the land. Id. "[A]cts of maintaining and improving land can support a claim of ownership and hostility to the true owner." Id. (citing 3 Am. Jur. 2d Adverse Possession § 139, at 224 (1986)).
Mere proof of use is not sufficient because where use is permissive only it is revocable at all times. Heald v. Glentzer, 491 N.W.2d 191, 193 (Iowa Ct.App. 1992). "The mere permissive use of an easement, without claim of right to such use, no matter how long continued, can never ripen into a permanent easement so as to run with the land." Id. Permissive use may ripen into a prescriptive easement only when a party has "expended substantial amounts of labor or money in reliance upon the servient owner's consent or his oral agreement to the use." Larmon v. State, 552 N.W.2d 158, 161 (Iowa 1996) (quoting Simonsen v. Todd, 261 Iowa 485, 489, 154 N.W.2d 730, 733 (1967)).
We note that where no money or labor is spent in maintaining the property, there is no prescriptive easement. Simonson, 261 Iowa at 495, 154 N.W.2d at 736; Heald, 491 N.W.2d at 194. In Collins Trust, 599 N.W.2d at 464-65, in finding there was a claim of right, the court noted that not only had the County annually maintained the road, it had installed a culvert. Also, in finding a claim of right in Johnson, 637 N.W.2d at 179, the court found a party had mowed, cleaned, and torn out trees and a house on the disputed property. Thus, in Collins Trust, 599 N.W.2d at 464-65, and Johnson, 637 N.W.2d at 179, a claim of right was based on more than maintenance of the property.
"The precise evidence to support the requirements of prescriptive easement can vary, and ultimately, each case rests on its own particular facts." Collins Trust, 599 N.W.2d at 464; see also Johnson, 637 N.W.2d at 179 ("Ultimately, we must determine on a case-by-case basis whether there is evidence to support the requirements of a prescriptive easement.").
In the present case, Gary Koop testified he put gravel on the driveway on average two times per year. He also testified that he graded the driveway three or four times each year. There was no evidence as to how much money Koop spent maintaining the gravel driveway. The district court found "[t]he continuous maintenance and use of the driveway by Koops satisfies the claim of right requirement."
In our de novo review, we conclude the Koops have not adequately shown a claim of right to the property in question. We determine the use of the gravel driveway by the Koops and their predecessors was permissive. Fink knew of the use, but was not concerned. In addition, the Koops have not shown they "expended substantial amounts of labor or money in reliance upon the servient owner's consent or his oral agreement to the use." See Larmon, 552 N.W.2d at 161. The evidence shows only light maintenance of the road by the Koops. The Bredes continued to pay the taxes on the property. We conclude the Koops are not entitled to an easement by prescription over the gravel road.
IV. Easement by Implication
The district court also found the Koops had established an easement by implication. Upon severance of the unity of ownership of property, an easement by implication may arise in these circumstances: (1) a separation of the title; (2) the use of the property has been continuous and obvious, so that it may be inferred the parties intended the use to be permanent; and (3) the easement is essential to the beneficial enjoyment of the land. Rank v. Frame, 522 N.W.2d 848, 850 (Iowa Ct.App. 1994) (citing Bray v. Hardy, 248 Iowa 794, 797, 82 N.W.2d 671, 673 (1957)). Although strict necessity need not be proven, mere inconvenience is not enough. Schwob v. Green, 215 N.W.2d 240, 244 (Iowa 1974).
Here, the Koops had a separate thirty-three foot express perpetual easement, and so use of the gravel driveway was merely convenient. We conclude the Koops have not shown that use of the gravel driveway is "essential to the beneficial enjoyment of the land." See Rank, 522 N.W.2d at 850. We conclude the Koops have not proven an easement by implication.
V. Equitable Considerations
In rendering a decision in this case, we have given great consideration to the various equitable interests which are present. In particular, we have noted that the result of the district court decision was to give the Koops two separate and distinct easements across the Bredes' property. Not only would they have the use of the thirty-three foot express perpetual easement, but the Koops would also have the use of the new easement covering the gravel driveway. We have considered Robert Brede's testimony, as follows:
Q. How important is it to you to be able — A. It's very, very important because now to not only protect the value of our property but they already have an easement here that's wider than a commercial property without one obstruction on it and this is — this is not really their property. This is my front yard.
We conclude this result is inequitable and far too burdensome to the Bredes use of their property. The Koops should have but one easement across the Bredes' property in order to access their own property.
We also considered whether, through the acquiescence of the parties, the location of the thirty-three foot express perpetual easement might have changed to the location of the gravel driveway. See Bagley v. Petermeier, 233 Iowa 505, 507, 10 N.W.2d 1, 2 (1943) (noting parties to an express easement may agree to change the location of the easement). This would result in the parties having only one easement, with the location of that easement being the gravel driveway. If the only easement were the gravel driveway, the Koops would be able to drive their cars in easily. However, they would not have an access for their larger equipment. This would be inequitable and burdensome to the Koops use of their property. The equitable solution for both landowners appears to be use by the Koops of the unobstructed thirty-three foot express perpetual easement established in 1979. The Koops will be able to access their property easily and can use the easement for personal vehicles and larger farm equipment. At the same time, the Bredes can make the most efficient use of their property to plant trees and other shrubbery.
Gary Koop testified that for larger pieces of equipment, such as a tractor or plow, he used the thirty-three foot easement.
A court sitting in equity has considerable flexibility in framing remedies. Hosteng Concrete Gravel, Inc. v. Tullar, 524 N.W.2d 445, 448 (Iowa Ct.App. 1994). We conclude the most equitable result in this case is for the Koops to have one easement in the location of the thirty-three foot express perpetual easement. We therefore reverse the decision of the district court and remand for an order in accordance with this decision. We determine the Bredes' action for trespass against the Koops should not be reinstated. See Nichols, 687 N.W.2d at 573 (noting a trespass action is based on the unlawful entry or direct invasion of property). In the past, the Koops had permissive use of the gravel driveway. Costs of this action are assessed against the Koops.