Opinion
No. 2-054 / 00-1711
Filed October 16, 2002
Appeal from the Iowa District Court for Winneshiek County, James Beeghly, Judge.
Intervenors appeal from a district court order determining Winneshiek County abandoned any interest it had in a portion of a street in the unincorporated village of Freeport and quieting title to that area in the plaintiffs on a theory of adverse possession. REVERSED AND REMANDED.
Dennis G. Larson of Larson Law Office, Decorah, for appellants.
Richard D. Zahasky of Zahasky Law Office, Decorah, for appellees.
Andrew Van Der Maaten of Anderson, Wilmarth, Van Der Maaten Belay, Decorah, for defendant Winneshiek County.
Heard by Sackett, C.J., and Huitink and Hecht, JJ.
Intervenors appeal from a district court order determining Winneshiek County abandoned any interest it had in a portion of a street in the unincorporated village of Freeport and quieting title to that area in the plaintiffs on a theory of adverse possession. The intervenors claim the County had not abandoned its interest in the property, and plaintiffs cannot claim an interest in a public street by adverse possession. We reverse the decision of the district court.
I. Background Facts and Proceedings
This case involves a parcel of real estate in Freeport, known as Washington Street as it runs between Main Street to the south and Fannon Street to the north. The property was originally platted by Acles and Mary Fannon in 1854. The plat was approved by county judge David Reed and ordered to be recorded. The plat was recorded in Winneshiek County on May 25, 1854. There was evidence Washington Street was used by the public as a street prior to 1978. Like the other streets in Freeport, Washington Street was surfaced in gravel, and there were no curbs or other improvements. There was a street sign denominating the property "Washington Street."
In 1978 Charles and Marilyn Meyer purchased property on the west side of Washington Street, while Donald and Susan Nelson purchased property on the east side of the street. Thereafter, the disputed property was seldom used as a public thoroughfare. Weeds grew through the gravel, and the Meyers and Nelsons began treating the north portion of the disputed property as an extension of their yards. The south portion of the disputed property was used to access their respective driveways. The County did not maintain the road, but did provide one load of gravel at the request of the Meyers and Nelsons.
In 1993 the Meyers and Nelsons requested that the Winneshiek County Board of Supervisors vacate the disputed property because it was not being used as a road. The County responded that it did not own the property because it had never accepted the dedication of the plat. The County indicated that if the Meyers and Nelsons attempted to obtain title to the disputed property through adverse possession the County would not object. In May 1994 the Meyers and Nelsons each filed an "Affidavit Explanatory of Title," pursuant to Iowa Code section 558.8 (1993), claiming an interest in the disputed property through adverse possession. They began paying property taxes on the property. In May 1997 the County vacated certain roads in Freeport, but not the disputed property.
Mel and Nancy Macal own property on Fannon Street, north of the disputed property. In 1998 they sold a portion of the property to Leo and Ardis Macal. The Macals were interested in using the disputed property as a road. Under an ordinance, the County has a procedure for the opening and maintaining of a platted street that had not been open to traffic, but had not been vacated. To that end, the Macals obtained a plan for water, sanitary sewer, and street improvements to Washington Street.
All of the intervenors together will be referred to as the Macals.
In June 1999 the Meyers and Nelsons filed a petition against the County, seeking to quiet title to the disputed property. They claimed ownership under distinct theories of adverse possession following the County's acceptance and abandonment of Washington Street and alternatively under a theory of equitable estoppel. The County denied that the relevant plat including Washington Street was ever accepted and did not dispute the petitioners' remaining theories of adverse possession. The Macals intervened, asserting Washington Street should remain a public street citing the County's acceptance of the relevant plat and subsequent failure to abandon Washington Street.
The district court determined Washington Street had been accepted by the County as a road due to public use of the property prior to 1978, and thus, the County had title to the property. The court, however, found the County abandoned its interest in Washington Street for a number of reasons, including the County's denial of any interest in the property and its failure to oppose the Meyer's and Nelson's affidavits of adverse possession. The court also determined the Meyers and Nelsons had established their claims of adverse possession following the County's abandonment of Washington Street. The court rejected the petitioners' estoppel theory citing the absence of any valuable improvements they made to the property. The court quieted title to the disputed property in the Meyers and Nelsons resulting in this appeal by the intervenors.
II. Scope of Review
Actions to quiet title lie in equity. Rouse v. Union Township, 530 N.W.2d 714, 716 (Iowa 1995). Our review is de novo. Iowa R.App.P. 6.4. In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the district court, but are not bound by them. Iowa R.App.P. 6.14(6)(g).
III. Acceptance of the Plat
On appeal the County's acceptance of the plat remains in dispute. Because this determination is essential to our disposition, we briefly consider whether the County accepted the relevant plat. The plat for Freeport was acknowledged and recorded under the direction of the county judge, following the requirements of Iowa Code section 41.636 (1851). Under section 41.637, the acknowledgement and recording of such plat was the equivalent to a deed in fee simple of such portion of the land as was therein set apart for public use. Incorporated Town of Ackley v. Central States Elec. Co., 206 Iowa 533, 536, 220 N.W. 315, 316 (1928).
The intervenors argue that once the county judge acknowledged the plat, it was not necessary for the County or the public to accept it. Previously, in considering section 41.637, the supreme court stated:
While the making and recording of a plat constitutes a deed of dedication to the public of the designated streets, it is well settled that such plat does not make them public streets until the public has in some manner indicated its acceptance thereof. Like all deeds an acceptance is necessary.Kelroy v. City of Clear Lake, 232 Iowa 161, 164, 5 N.W.2d 12, 16 (1942) (emphasis added). Recently, however, the supreme court indicated acceptance is not required for plats filed before 1897 because under section 592.2 (1999), "all plats heretofore filed for record and not subsequently vacated are hereby declared valid, notwithstanding irregularities and omissions in the required statement or plat, or in the manner or form of acknowledgement, or certificates thereof." Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 812 n. 2 (Iowa 2000).
As noted above, the plat for Freeport was recorded in 1854, and therefore, under section 592.2 acceptance was not necessary. If acceptance was necessary in the present case, however, we determine the public's use of Washington Street was sufficient to establish acceptance under the facts of this case. See Marksbury v. State, 322 N.W.2d 281, 285 (Iowa 1982) ("Very slight evidence is required to establish acceptance by the public."). The evidence shows the disputed property was used as a public street at least until 1978. We, like the district court, conclude the County accepted the plat and held title to Washington Street.
IV. Equitable Estoppel/Abandonment
As noted earlier, the district court's ultimate conclusion was predicated on the County's abandonment of Washington Street rather than on the petitioners' equitable estoppel theory. In Pearson v. City of Guttenberg, 245 N.W.2d 519, 528 (Iowa 1976), the court stated, "Admittedly abandonment and estoppel are distinct concepts." These separate concepts, however, were consolidated for purposes of discussion. Pearson, 245 N.W.2d at 528; see also Sioux City v. Johnson, 165 N.W.2d 762, 765 (Iowa 1969) (noting facts to support abandonment will also support equitable estoppel); Kelroy, 232 Iowa at 168, 5 N.W.2d at 17 (considering abandonment and estoppel together). In Fencl, the supreme court determined abandonment is actually an element of a claim under the doctrine of equitable estoppel. Fencl, 620 N.W.2d at 816. Whether the distinction between abandonment and equitable estoppel noted in Pearson is still valid after Fencl is open to question. The validity of this distinction, however, is of no consequence to the outcome here because we find the record insufficient to establish abandonment under either theory.
The doctrine of equitable estoppel is based on fair dealing and good faith. Sioux City v. Johnson, 165 N.W.2d 762, 767 (Iowa 1969). Each case must be considered in the light of its surrounding facts and circumstances. Id. at 768. Proof of estoppel must be by clear and convincing evidence. Fencl, 620 N.W.2d at 816. The elements of an estoppel claim are: (1) abandonment of the property; (2) adverse possession by the claimant; and (3) unfair damage to the claimant. Id.
An established highway or right of way may be abandoned by the public and its rights lost. Allamakee County v. Collins Trust, 599 N.W.2d 448, 451 (Iowa 1999). Abandonment develops because the owner no longer desires to own the property. Sioux City, 165 N.W.2d at 767. Nonuse of the property is not enough to show abandonment, unless accompanied by affirmative evidence of a clear determination to abandon. Polk County v. Brown, 260 Iowa 301, 307, 149 N.W.2d 314, 317 (1967); Rasmussen v. Yentes, 522 N.W.2d 844, 848 (Iowa Ct.App. 1994). Obstructions, encroachments, or the failure to keep a road in repair do not necessarily result in abandonment. Allamakee County, 599 N.W.2d at 451. There must be evidence the municipality has not used the property for more than ten years. Fencl, 620 N.W.2d at 816.
It is clear the County did not maintain the road. In fact, the County expressly stated it was not interested in the disputed property. The County informed the Meyers and Nelsons "if adverse possession and quiet title proceedings were initiated by interested individuals, that the county would not participate in those proceedings and would not resist a quiet title proceeding. . . ." The Meyers and Nelsons were assessed taxes on the property beginning with the tax year 1994-1995.
It is less clear whether the general public had used the disputed property as a thoroughfare within the past ten years. In 1993 when the Meyers and Nelson requested the County to vacate the property, they stated it was "a lightly used road and dead end." They also stated, "If this property were vacated and sold to us, it would prevent unauthorized parking and travel to and from the County Store. This remains a great safety concern to both families." We interpret these statements to show there was some use of the disputed property as a road at least through 1993. Under these facts, we conclude claimants have failed to show Washington Street was abandoned by the public for a period of more than ten years. We accordingly conclude the petitioners have failed to establish abandonment under any theory advanced. In the absence of proof that the County abandoned the disputed property, petitioners cannot claim title to the property through adverse possession. See Fencl, 620 N.W.2d at 816 n. 5 (adverse possession is not applicable to government entities except as an element of equitable estoppel).
The judgment of the district court is reversed, and this case is remanded for entry of judgment in conformity with our opinion.