Court of Appeals finds $25,000 award reasonable for sewer easement

by Eric Christianson

City of North Liberty v. Gary Weinman
(Iowa Court of Appeals, April 5, 2017)

In 2014 North Liberty was in the process of developing what would become Iowa City Liberty High School to alleviate overcrowding in the Iowa City School District. However, the site selected did not have access to sanitary sewer. To service the area, the City of North Liberty explored several options before selecting its ultimate path in 2014. This path crosses the private property of 13 individuals. The city was able to secure temporary easements (for construction) and permanent easements (for ongoing maintenance) from 12 of the 13. The final holdout was Dr. Gary Weinman who first sought through a pair of lawsuits to force the city to stop construction and reconsider other routes. Those suits failed.

Easements are always considered takings and therefore Weinman was entitled to just compensation under the Fifth Amendment. A compensation commission decided that Weinman was entitled to $75,000. This included a temporary easement for construction (1.1 acres for four months) and a permanent easement (.75 acres). The city appealed claiming that amount was excessive. Weinman requested a jury trial so the matter was tried de novo to the jury. The jury set the compensation amount at $25,000 relying largely on the testimony of an expert assessor brought by the city.

Weinman appealed this decision to the Iowa Court of Appeals. The Court of Appeals does not  generally reverse compensation awards provided that they are not “wholly unfair or unreasonable.” In this case, because the jury’s decision was reasonable based on the evidence, the award of $25,000 was affirmed.

 

Creek stabilization plan went beyond scope of original drainage easement

by Hannah Dankbar and Gary Taylor

Hamner v City of Bettendorf
Iowa Court of Appeals, October 12, 2016

Property owners in the Rolling Meadows subdivision complained that the City of Bettendorf overstepped their powers when they used a 25-foot “utility and drainage easement” established in 1968 for a stream bank stabilization project in 2015. Property owners claimed that the use of the 25-foot easement for stream bank stabilization constituted a taking and argued that they should be compensated for the land. The City did not offer any compensation for the removal of trees, change in land elevation, or the regrading of the property owners’ land.

The City argued that it was in the public interest to stabilize the creek, and that the easements granted in 1968 contemplated the type of work conducted by the City in 2015; thus the landowners were not entitled to compensation.

The district court ruled in favor of the landowners because the 1968 easement was granted to maintain the sanitary sewer, storm sewer, Stafford Creek drainage, and utility poles. The court determined that stabilizing the creek overstepped the City’s powers.  The City appealed.

On appeal, the Iowa Court of Appeals used a three-part test to evaluate the scope of the easement: 1) the physical character of past use compared to the proposed use; 2) the purpose of the easement compared to the purpose of the proposed use; and 3) the additional burden imposed on the servient land by the proposed use.

Physical character of past use compared to the proposed use. The City planned to remove all trees and foliage, install a retaining wall on one side of the creek, and place twenty-five tons of rocks along both sides.  The court concluded that this work would substantially change the physical character of the past use of the properties.

Purpose of the easement compared to the purpose of the proposed use.  The court found that while the proposed work did pertain to drainage in a general sense…the purpose of the project was to reshape Stafford Creek and the surrounding creek bed to cure past erosion and prevent future erosion.

Additional burden imposed on the servient land by the proposed use. The landowners presented estimates from a consultant of the loss of value of their properties ranging from $27,500 to $30,250.  This suggested a burden way beyond that contemplated by the original easement

The court determined that the original grantors of the easements did not “contemplate the expansive use of the easement now sought” by the City, and that the radical changes to the land demanded compensation to the landowners under Article I, Section 18 of the Iowa Constitution (the Takings Clause).

 

 

 

Plain language of right-of-way deeds grant easements

by Andrea Vaage

Sargent County Water Resource District v. Mathews
North Dakota Supreme Court, December 1, 2015

Paul Mathews sought to control land rented to him by Nancy Mathews and Phyllis Delahoyde. In response, The Sargent County Water Resource District filed for declaratory relief in November 2012 as the successor in interest to the Sargent County Board of Drain Commissioners. The Board obtained interest in the property through right-of-way deeds signed in 1917 and 1918.

At issue is whether the deed conveyed an easement or an estate in fee. The district court found the deeds granted fee title in property to the District. The Mathews appealed. The Mathews argued the right-of-way deeds from 1917 and 1918 unambiguously show an intent to convey easements for a right of way when read in plain language. In addition, if the deeds were ambiguous, the Mathews argued the district court interpretation of parol evidence is erroneous. When a deed is unambiguous, meaning of the deed is determined from the document itself. When it is found to be ambiguous, extrinsic evidence may be considered.

The deed reads, in part, that owners:

“grant, sell and convey, and forever release to the people of the County of Sargent, in the State of North Dakota, right of way for the laying out, construction and maintenance of a public drain, as the same may be located by the Board of Drain Commissioners, through said above described lands, being a strip of land . . . [described]. And we hereby release all claims to damages by reason of the laying out, construction and maintenance thereof through our said lands.”

The Court analyzed the deed to understand the grantor’s intent. The deed grants a “right of way” specifically for “construction and maintenance of a public drain” and does not convey an estate in fee. When the granting clause includes the phrase “right of way,” courts have found the deed usually conveys an easement. The Court found the deed was unambiguous and conveyed an easement when read in plain language.

The decision of the district court was reversed.

Landowner not entitled to injunction when ownership of easement rights in dispute

by Kaitlin Heinen

Hawkeye Land Company v. City of Coralville, Iowa
(Iowa Court of Appeals, June 12, 2013)

Hawkeye Land Company filed an application for injunction on April 6, 2012, which involved a parcel of land and railroad tracks located on the southern end of Coral Ridge Avenue in Coralville, Iowa. The application was filed in response to the City of Coralville’s decision to extend Coral Ridge Avenue over the tracks in order to provide access to a developing subdivision. Prior to construction of the extension, “Coralville did not initiate eminent domain proceedings.” The City negotiated with Heartland Rail Corporation, believing that Heartland, rather than Hawkeye, had the rights to approve the street extension over the railroad tracks. An agreement between Coralville and Heartland was reached.

Both Hawkeye and Heartland claimed to have received ownership from the railroad’s original owner, Chicago Pacific Corporation (CPC). Heartland claimed to have purchased rights from CPC and to have been granted rights to operate the rail line including the right to grant easements, such as construction of a street over the tracks. Coralville argued its purchased such an easement from Heartland. On the other hand, Hawkeye argued it purchased rights from CPC including the right to grant easements for “transportation and transmission systems” by “whatever means,” which arguably includes streets. The most contentious issue between parties was which party possessed rights to grant easements necessary to extend Coral Ridge Avenue over the railroad tracks and whether that party had been properly compensated. If Hawkeye possessed rights, the extension could constitute a taking requiring eminent domain proceedings and payment to Hawkeye. If Heartland possesses rights, eminent domain proceedings are not necessary because Coralville had compensated Heartland. The district court denied Hawkeye’s application for injunction because it found that Hawkeye failed to show that it had suffered irreparable harm and had no adequate remedy at law.

To obtain an injunction, the owner must prove irreparable injury and that no adequate legal remedy is available. “When property has been subject to condemnation, the landowner may permanently enjoin the eminent domain proceedings.” Also, “[i]n each case where a permanent injunction has enjoined condemnation under eminent domain, condemnation has occurred first.” The Iowa Court of Appeals held that this did not happen in this case. Coralville brought no condemnation proceedings, but Iowa law provides a remedy for a taking that has occurred without condemnation proceedings. Mandamus, or inverse condemnation, is available as a remedy when an agency has taken private land for public use without condemnation proceedings or employing eminent domain. So, the Iowa Court of Appeals ruled that the rights of the parties need not be decided at this time because the question before the court in this case was whether Hawkeye was entitled to an injunction. “A mandamus action is available to it, and as that action will result in the same outcome as a condemnation proceeding, it provides an adequate remedy at law.” Yet, “[b]ecause Hawkeye is unable to satisfy the necessities to obtain an injunction,” the district court’s decision was affirmed.

Filling sinkhole not an allowable activity under TNC conservation easement

by Victoria Heldt

The Nature Conservancy v. Larry and Marsha K. Sims
(United States Sixth Circuit Court of Appeals, May 21, 2012)

In December 2001 the Sims purchased a 100-acre farm from The Nature Conservancy, Inc. (TNC) in Kentucky.  The real estate agreement included an easement to “assure that the Protected Property will be retained forever substantially undisturbed in its natural condition and to prevent any use…that will significantly impair or interfere with the Conservation Values of the Protected Property.”  The easement also conveyed to the TNC a right to inspect the property annually to ensure the Sims comply with the easement.  Without the easement, the property was appraised at $260,400 and with the easement it was appraised at $60,000.  The Sims paid $60,084 for the property in addition to a $244,939 tax-deductible charitable gift to TNC.

The property consisted of two sections, one being a residential/agricultural area to be used for the Sims’ residence and for commercial agricultural uses.  The remaining portion of the land, known as Henslow Sparrow, was to be used only for grazing livestock and producing hay.  A detailed description of the condition of the property was included in the agreement.  In January 2005 TNC inspected the property and found several instances of non-compliance with the easement.  One such non-compliance was the fact that the Sims altered the topography on the property by excavating and re-grading a sinkhole behind their residence.  This action violated Section 2.5 of the easement.  The remaining instances of non-compliance were remedied by the Sims and the allegations dropped.

TNC’s expert geologist was permitted to survey the sinkhole and determine the contours of the ground before the sinkhole was filled.  The district court granted summary judgment in favor of the Conservancy, determining that the Sims did indeed violate the easement.  It noted that, although the Sims were allowed to make some changes to the property in relation to authorized activities, filling a sinkhole with an estimated 6,269 cubic yards of soil was not one of them.  In a later judgment, the court awarded the Conservancy $77,337.50 in attorneys’ fees and $18,9902.33 in expenses.  Upon examination of the hours billed to TNC, the court subsequently reduced the amount awarded to TNC by $11,774.  The Sims appealed both judgments.

In regards to the violation of the easement, the Court ruled that the district court was correct in determining that the Sims were in violation.  Section 2.5 of the easement  states “there shall be no ditching; draining; diking; filling; excavating; removal of topsoil, sand, gravel, rock, or other materials; or any change in the topography of the land in any manner except in conjunction with activities otherwise specifically authorized herein.”  Filling the sinkhole clearly violated this condition.

The Sims argued that they are allowed to “enhance their agricultural usage” of the land under Section 3.2 of the easement and in filling the sinkhole they were improving the farming process.  Furthermore, they pointed to the phrase within Section 2.5 that allowed for altering the land “in conjunction with activities otherwise specifically authorized herein” in support of their argument.  They asserted that farming is an authorized activity and thus they are allowed to fill the sinkhole to improve the agricultural use.  The Court rejected this argument, stating that filling is not a normal precursor to farming activities.  In addition, “filling” is strictly prohibited within Section 2.5.

Next, the Sims argued that Section 3.7 gives them the right to “dig wells” and “create ponds” and they should therefore be allowed to place the excavated dirt in a sinkhole on their land.  The Court dismissed this argument as unreasonable since it would allow the Sims to breach one provision of the easement in order to enjoy another.  The Sims further argued that the status of the depression as a “sinkhole” was not disclosed to them before they filled.  Regardless, the Court noted that “filling” is explicitly forbidden.  The Sims claimed they would not have built their residence so close to the sinkhole had they known they weren’t allowed to fill it.  The Court determined it was the builder’s task to recognize limitations of the property in regards to the construction of a home.

Finally, the Sims challenged the reasonableness of the amount of damages awarded to TNC.  The Court noted that the district court took into account all the necessary factors in determining the amount awarded.  It carefully examined the record of hours billed and the breakdown of the hours in its decision-making process.  The Court determined the award to be reasonable.  It affirmed the district court’s decision on both judgments.

Lakeway easement interpreted as providing access, not a park

by Victoria Heldt

Bedford, et. al., v. Joan Yvonne Rogers, Joan Yvonne Rogers Trust
(Michigan Court of Appeals, April 17, 2012)

The long list of plaintiffs in this case is comprised of property owners within the Glen Eyrie subdivision located on Crystal Lake.  The plat (recorded in 1920) and the parties’ deeds established a 100-foot wide strip of land designated as the “lakeway” between the plaintiffs’ property and the edge of Crystal Lake.  The lots do not extend all the way to the water.  The lakeway was to be “dedicated to the common use of property owners in Glen Eyrie plat.”  Sometime after 1920, Crystal Lake Drive was constructed parallel to, and partially within, the lakeway.  Surveys done in 2001 and 2010 indicated that the border separating the property owners’ lots and the lakeway is located near the center line of Crystal Lake Drive.

Historically, some of the property owners built boathouses or storage units in the lakeway.  When Rogers purchased her lot in 1987 a 20 x 28-foot boathouse was built in the lakeway in front of her property.  In September 2009 she applied to the township for a permit to build a new 28 x 34-foot boathouse to replace the existing one.  The township granted the permit and Rogers began construction in October 2009.  The new “boathouse” was to include running water, heat, toilet facilities, a kitchenette, a workshop, and a second floor cupola.

As Rogers’ construction was in its early stages, the plaintiffs wrote a letter through an attorney asking Rogers to cease construction since the lakeway was reserved for the common use of property owners.  Rogers refused to stop the construction.  In December 2009 the Lake Township Zoning Administrator wrote her a letter stating the building violated the township’s zoning ordinance since it “includes substantial space designated by the Building Department as living quarters” and issued a stop work order.  Rogers appealed the administrator’s opinion and, in April 2010, the Board of Appeals voted that the boathouse constructed should be “allowed as a compatible non-commercial recreational facility.”  The Board did place certain conditions on the property that included the removal of certain residential features (e.g. a tub, shower, and certain fixed kitchen appliances).

In trial court, the plaintiffs filed a request for summary disposition citing trespass and nuisance.  They argued that the plat dedication granted property owners an “irrevocable easement over the lakeway property and prevented defendant from exclusively using the portion of the lakeway in front of her lot by constructing a new structure that expanded the footprint of the old boathouse.”  Rogers also filed for summary disposition, arguing she owned the portion of the lakeway in front of her property and had the right to make use of it.  The court noted that a tacit agreement existed among land owners that 100% of the lakeway was not dedicated for common use since most property owners built boathouses for personal use.  History supported that claim since most of the structures had existed for over 40 years.  The court acknowledged that the expansion of this boathouse by several feet would not further prevent other land owners from using and enjoying the lakeway.  It determined the expansion should be allowed.

On appeal the Court of Appeals first noted that a use under a plat dedication must be within the scope of the dedication and must not interfere with the owners’ use and enjoyment of the property.  In this case, the plaintiffs interpreted the plat dedication to create a park for common use by the lot owners.  This Court of Appeals disagreed.  The dedication stated that “the drive, court, spring road and lakeway” were dedicated for common use.  When interpreting language like this, it is in accordance with precedent to treat word groups in a list as having related meanings.  The drive, court, and spring road are all used as right-of-ways (access) for lot owners to travel to, from, and within the plat, not as a park (which implied open space without obstructions).  The Court stated that the lakeway is to be considered similar; i.e., as a right-of-way.  The Court further noted that the term “lakeway” suggests it should be used as a right-of-way rather than a park (since the word “way” is found within the term.)

Subsequently, the Court determined that “the scope of the dedication created an easement within the lakeway for common use of lot owners of the land as a right-of-way that allows lot owners to use the lakeway in the same manner as the drive, court, and spring road.”  Since Crystal Drive, which runs through the lakeway, satisfies the purpose of a right-of-way providing access, there is no need to prohibit obstructions such as boathouses from the lakeway.   The Court determined that the slightly larger boathouse would not prevent residents from using and enjoying the lakeway for its purpose as right-of-way any more so than the previous boathouse did.  Thus, it affirmed the trial court’s decision.

Landowner could not limit access of easement holder to one specific route

by Victoria Heldt

Enbridge Energy, LP v. Donovan Dyrdal, et al.
(Minnesota Court of Appeals, October 24, 2011)

The Dyrdals own agricultural property that is subject to easements held by Enbridge Energy.  The easements were granted in 2009 by the power of eminent domain and allowed Enbridge “rights of ingress and egress as are reasonably necessary or convenient in the exercise of such easement rights.”  Enbridge, a public-service corporation, installed and maintained pipelines in the easement.  Soon after completing the pipeline installation, Enbridge discovered problems at two locations, so the crew began working to correct them in January of 2010.  They used a field road on the Dyrdal property to access the two spots.  In response, the Dyrdals placed large hay bales across the field road and in the ditch between the problem sites, preventing Enbridge from accessing their work site.  Enbridge claimed this delay cost them an additional $28,697.80 in project costs.

Enbridge sought a declaratory judgment and injunctive relief in district court alleging a breach of easements and a violation of the eminent-domain order, among other things.  They also moved for a temporary injunctive relief to prevent the incident from reoccurring during litigation, which the court granted.  The Dyrdals countered with a claim of immunity under Minnesota’s statute preventing strategic litigation against public participation (SLAPP).  The statute’s goal is to prevent parties from using the threat of costly litigation to silence those who want to debate public issues.  The district court eventually granted Enbridge’s motion for summary judgment on the issue of declaratory relief, finding Enbridge did indeed have the right to access the property to maintain the pipelines.

The Dyrdals appealed, their first claim being that the district court erred when it denied their request for partial summary judgment on the grounds of Minnesota’s anti-SLAPP statutes.  The anti-SLAPP statute can be used to dismiss claims that relate to public participation.  The Court noted that public participation is defined as “speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.”  The Dyrdals argued that, since Enbridge gained access to the property by means of an eminent-domain procedure, it was acting as a government agent in its actions.  Consequently, they claimed that the anti-SLAPP statue was applicable.  The Court disagreed.  They noted that the power of eminent domain does not make the entity a government agent once the power has been exercised.  In addition, they found that Enbridge was exercising its rights as an easement owner, not a government agent, in accessing the property.  Further, the Dyrdals previously claimed that they placed the hay bales on the road in order to load them and not to interfere with Enbridge’s work.  If that is true, then their conduct was not to “procure favorable actions from Enbridge,” but for their own private farming operations.  As a final note, the Court noted that it had recently found that a preexisting legal relationship could limit a party’s ability to file an anti-SLAPP claim.

The Dyrdals also alleged that the district court abused its discretion when it granted temporary injunctive relief.  In evaluating whether a temporary injunction is appropriate, the Court considers five factors:  1) the nature and background of the relationship between the parties; 2) the balance of harm to the parties; 3) the likelihood that the party seeking the injunction will prevail on the merits of the action; 4) wither there are public-policy considerations; and 5) whether there are any administrative burdens involved in judicial supervision and enforcement of the temporary injunction.  After analysis, the Court found that the first three factors favored Enbridge, while the last two were neutral.

The Dyrdals focused mainly on the third factor.  The Court had reasoned that the language in the eminent-domain ruling showed Enbridge had a clear right to access the property and that constituted a showing that they would most likely win on the merits of the case.  The Dyrdals claimed that the real-estate doctrine of practical location limited Enbridge’s right of entry to one specific route.  The boundary by practical location can be established by acquiescence if one party chooses a specific route and the other agrees accepts it over a period of time.  The Dyrdals contend that an alternative route (and not the field road) that was previously used had been established by acquiescence.  The Court noted the plurality in the phrase “rights of ingress or egress” that appeared in the eminent-domain ruling.  It found that the ruling did not prescribe one specific route of access, so the Dyrdal’s claim was insufficient to disprove the likelihood of Enbridge’s success in a claim.  Additionally, the practical location by acquiescence doctrine requires acquiescence over a period of time.  In this case, the easement was relatively new and substantial time had not passed in which to establish a route by acquiescence.  The Court affirmed the district court’s decision regarding the temporary injunction.

Use of roadway by mobile home park residents went beyond scope of easement

by Gary Taylor

113th Avenue Road Fund Assn. v. I & R Properties, Inc.
(Iowa Court of Appeals, November 9, 2011)

Plaintiff 113th Avenue Road Fund Association (the association) is a voluntary, unincorporated group of lot owners in a subdivision called BJ Mahoney‟s Second Subdivision in Scott County. Plaintiff Sandra K. Moore is the former association president and owns Lot 1 in the subdivision.The defendant, I & R Properties, Inc. (I & R), owns lots 13, 14, and 15 in the subdivision and operates a trailer park—the Lake Canyada Mobile Home Park—“partially on, and adjacent to, the subdivision.” (although I & R denied owning the lots and affirmatively stated that Lake Canyada L.L.C. is the record title holder of the property. The district court observed, “the legal relationship between I & R Properties and Lake Canyada is not clear. . . . [but] I & R Properties is at least the resident manager and authorized agent of Lake Canyada L.L.C.”).

I & R and Lake Canyada use residential buildings on lots 13 and 14, located on 113th Avenue, as an office for the mobile home park and as a residence for the park‟s manager. Several mobile home residents use 113th Avenue as their ingress and egress to their mobile homes. In addition, I & R cut a roadway through lot 15, which connects with 113th Avenue. The crude roadway provides the occupants of approximately 235 trailer lots with a shortcut to 113th Avenue so that they may access Lake Canyada’s business office.  The sixty-six-foot-wide roadway was first recorded in a 1948 plat of the B.J. Mahoney‟s Second Subdivision, and the Mahoneys recorded an affidavit in 1964 reaffirming their dedication of the roadway for the use of “all of the owners of lots” in the 1948 plat. On June 30, 1986, the owners of the land adjoining the road signed an agreement for continued maintenance and access to and from their properties. That agreement stated that 113th Avenue is designated “as a private road for residential use for all owners and residents of the Lots in said Auditor’s Plat of B.J. Mahoney’s Subdivision and B.J. Mahoney’s 2nd Subdivision. The owners of the following adjoining lots to the described road state that each party has the right to use the described road for residential use to Ingress and Regress.” In 1986, Dean Harding managed Hawkeye Real Estate Investments and signed the agreement for Lots 13, 14, and 15.  Over the years, several disagreements arose between trailer park management and subdivision landowners concerning the meaning of the agreement, and the use and maintenance of 113th Avenue.  The latest disagreement resulted in this lawsuit over the interpretation of the agreement.  The district court ruled that I & R could not use lots 13, 14, and 15 for commercial purposes, and that the association could erect blockades to prevent trailer park residents from using 113th Avenue.  I & R appealed.

The parties agreed that the district court went beyond the scope of pleadings in restricting the use of lots 13, 14, and 15.  However, they still disagreed about the scope of the 1986 agreement concerning use of the road.  I & R recognizes the 1986 agreement referenced “residential use” of the road, but argued that phrase “cannot fairly be construed to ban traffic related to the operation of the park as a place where persons reside. The Court of Appeals disagreed.  The testimony about 113th Avenue reveals that the lots adjoining the private road were held and used by about twenty people for their own residences in 1986, as opposed to any commercial or business endeavors. The notion that more than two-hundred occupants of mobile homes may use I & R’s easement to transact business at the manager’s office and to gain a quicker connection to a public road was not contemplated by the lot owners who signed the 1986 agreement for access and maintenance of the private road.  The agreement did not contemplate that I & R could open the private road to hundreds of customers who rented trailer lots from the company. That commercial use of the road by non-residents has created an unintended burden on common holders of the easement.  The agreement’s reference to proportional responsibility for the maintenance costs also supports the conclusion that the signatories did not anticipate opening 113th Avenue to non-residents who would benefit from their use of the private road without contributing to its upkeep.

The Court of Appeals found that I & R violated the 1986 agreement by allowing the different type of use of 113th Avenue by their tenants. It affirmed the district court’s declaration that I & R’s roadway on Lot 15 should be closed to through traffic to 113th Avenue, the north end of 113th Avenue should be closed to access from the mobile home park, and I & R should be prohibited from interfering with the association’s enforcement of the agreement.

Iowa C.A. adjudicates easement rights of Mississippi River frontage owners

by Gary Taylor

Clancy v. Jessen
(Iowa Court of Appeals, October 7, 2009)

Landowner may grant easement rights beyond prior deed restrictions so long as they do not impair existing rights of other easement holders.

In 1964 the Kelloggs acquired 2.07 acres of property north of the city of McGregor that included 198 feet of riverfront along the Mississippi River.  The property was bisected by railroad tracks.  Three years later they subdivided the property into 17 lots.  Lot 17 had the entire 198 feet of riverfront, but the Kelloggs platted drives so that the other 16 lots were given vehicular access to the riverfront via Lot 17.  The 10 lots west of the railroad tracks were sold over the years – purchasers coming to be known as West Enders – with the following language granting the easement:

“Grantors convey easement to use platted drives, and to travel access and use over and across Lot 17 of Kellogg’s Subdivision, to Mississippi River, and use of riverfront adjacent thereto.”

The 6 lots east of the tracks were sold – purchasers coming to be known as East Enders – with the same language, and also included the following notation:

“Grantors further agree that no buildings of any type shall be allowed on said Lot 17.  Permission granted to grantees to install 3 docks for 3 boats on said Lot 17.” 

Eventually 3 docks were built with room for multiple boats.  Historically, both East Enders and West Enders docked boats at those docks. 

The Kelloggs sold Lot 17 in 1986.  In 2007 several lot owners proposed several new dock plans to the Army Corps of Engineers, who must review and approve such plans on the Mississippi River for navigability.  The Corps approved a plan that provided for one large community dock in the middle of Lot 17 that would accomodate the boats of all West Enders, and two smaller new docks.  The plan left two of the existing docks in place. 

Two East Enders brought suit to stop development of the new dock plan, arguing that only the  deeds of the East Enders granted permission for boat docks, and that the West Enders’ deeds granted no such rights.  The Court of Appeals disagreed.  The East Enders’ claims must fail, reasoned the court, if the docking priviledges granted to the West Enders do not impair the East Enders’ easements rights.  The owner of Lot 17 may elect to confer on the West Enders more benefits than they are entitled to, but that is not concern of the East Enders unless their rights are adversely affected.  The granting of rights to East Enders to install “3 docks for three boats” did not give them rights to have their docks in a particular location on Lot 17.

Iowa Supreme Ct. examines scope of access easement

by Allison Arends

Stew-Mc Development v. Fischer
(Iowa Supreme Court, August 14, 2009).

Proposed use of farm access lane for access to residential subdivision would exceed original scope of easement.

In 1888, Anton Birkel purchased land in Dubuque County, which was eventually passed down to Ferdinand Birkel. During Ferdinand’s ownership, his mother, Rosa, lived on a separate farm on the northern part of his property. Ferdinand allowed Rosa and other relatives to travel across his land in order to access public roads and other parts of the property. After Rosa sold her property and it was divided into two lots, Ferdinand continued to allow the new owners of Rosa’s property to travel across his land. This “access way” was later named Kress Lane. In 1983, Ferdinand Birkel’s land was sold to Nancy and Thomas Fischer, who continued to allow the owners of the northern properties to use Kress Lane for access purposes. Prior to this case, the owners of the two northern lots were James Kress and Joseph and Penni Schmitt. Although Kress Lane is vital to the survival of these farms, Dubuque County never formally accepted it as a public road, although over the years the county has rocked and graded it, and given it a name for 911 emergency addressing purposes.  The Birkel-Fischer chain of ownership has never established a written legal instrument granting a formal easement across the Fischer party for Kress Lane.

In February 2002, Stew-Mc Development, Inc. made an offer to purchase the two-hundred acre Kress estate in hopes that the Dubuque County Board of Supervisors would approve an application to rezone the property to permit single-family residential development. At the Dubuque County Planning Zoning Commission where Kress’ application was considered, Nancy Fischer objected, stating that Kress Lane was only an access easement over her property, and the northern landowners had no real ownership. As a result, the application was denied on the grounds that the Kress property had insufficient public access.

Kress and Stew-Mc filed for a declaratory judgment claiming that Kress Lane was a county road, thereby providing sufficient public access necessary for residential development. The district court granted summary judgment in favor of the Fischers. The court determined that Kress lane was a private road based on “an easement and was not a public roadway, either by direct acquisition, formal dedication and acceptance, implied dedication or prescriptive easement.” The court also determined that despite the “scope” of the easement, it was not “broad enough to cover the proposed residential development. “

The court applied law of easements in which they found they must look at the original scope and use of the easement, which was granted to the two farm properties at a time when residential development was not contemplated. The court also decided that if the scope of the easement was not defined, the easement is limited to what is “reasonably necessary and convenient for the purposes for which it was created.” The court also noted that the development of the residential area would not only increase the use of the easement, but it would change the nature of the easement constituting an extra burden upon the dominant estate.

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