THOMAS K. NEWPORT, STEPHANIE NEWPORT, GERALD NEWPORT AND NEWPORT'S FLOWERS, INC., Plaintiffs-Appellees, vs. JUDITH M. DULIN, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 6-669 / 05-1233
Filed November 30, 2006
THOMAS K. NEWPORT, STEPHANIE NEWPORT, GERALD NEWPORT
AND NEWPORT'S FLOWERS, INC.,
Plaintiffs-Appellees,
vs.
JUDITH M. DULIN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, David M. Remley,
Judge.
The defendant appeals from the district court’s order granting a permanent
injunction. AFFIRMED.
Thomas J. Viner of Hallberg, Jacobsen, Johnson & Viner, P.L.C., Cedar
Rapids, for appellant.
Richard F. Mitvalsky of Gray, Stefani & Mitvalsky, P.L.C., Cedar Rapids,
for appellees.
Heard by Huitink, P.J., and Vogel and Eisenhauer, JJ.
2
VOGEL, J.
Judith Dulin appeals from the district court’s order granting a permanent
injunction in favor of Newport’s Flowers, Inc., Thomas, Stephanie, and Gerald
Newport.
Dulin purchased land from Newport Flowers, Inc. and after some
years, erected a fence to block use of a private road on the land, preventing the
plaintiffs from accessing their properties via the road. Because we agree with the
district court’s findings that the Newport plaintiffs have an access easement on
the private road in question, we affirm the grant of the permanent injunction.
I. Background Facts and Proceedings.
The Newport family has owned the real estate in question since 1898,
operating a greenhouse and wholesale and retail flower business from the
location at 2125 Wilson Avenue SW in Cedar Rapids, Iowa. The property is
bordered by Wilson Avenue SW on the north, Newport Drive SW on the east,
and Lori Drive SW on the west. In 1961, the easterly portion of the Newport
property adjacent to Newport Drive SW was platted into Newport’s First Addition
to the City of Cedar Rapids and subsequently developed into residential lots.
Newport’s Second Addition, also adjacent to Newport Drive SW, was platted into
Lots 24, 25, and 26 in 1978, and Newport’s Third Addition to Cedar Rapids was
platted into Lots 1 and 2 in 1989. Newport’s Flowers, Inc. has owned all of the
land located west of Newport’s First, Second, and Third Additions and east of
Dorale’s First, Second, Third and Fourth Additions since June 1968.
Gerald
Newport’s parents, Leonard and Edith, deeded this land to the corporation, while
retaining ownership of Lots 1 and 2 of Newport’s Third Addition.
Following
Leonard’s death, Gerald eventually came to own the entirety of Newport’s Third
3
Addition Lots 1 and 2 through testamentary and inter vivos transfers.
Access to the residential property Lots 1 and 2 of Newport’s Third Addition
has been along a curbed and partially asphalted driveway measuring
approximately twenty feet in width and running south from Wilson Avenue SW
along the length of the westerly boundary of Newport’s First and Third Additions.
The Newport’s alleged the roadway has been in existence since 1898, long
preceding construction of the residence on Lot 1. It appears from the record that
the parties do not dispute that the Newport family has continually used the road
for ingress to and egress from their various properties along the roadway. There
has never been a driveway that connects either Lot 1 or Lot 2 to Newport Drive
SW directly to the east of the property, as the elevation of the lots is four to five
feet higher than that of the street, with a steep precipice. The access road and
rights of usage by the Newport family and Newport Flowers, Inc. is the source of
the parties’ controversy.
Gerald and his wife, Jeanne, resided in a house on Lot 1 until 1989, when
they sold it on contract to their son, Thomas Newport, and his wife Stephanie.
The warranty deed in fulfillment of the contract for Lot 1 was given on April 1,
2001. The home faces north toward Wilson Avenue SW, rather to the adjoining
Newport Drive SW on the east, and the house is configured for access from the
private road in question in this case. Gerald and Jeanne constructed a four-stall
garage on Lot 2 of Newport’s Third Addition in the early 1970’s. The garage
faces the west towards the access roadway. Gerald and Jeanne also deeded to
Thomas and Stephanie Lot 2 in February 2004.
The business known as Newport Flowers is located immediately west of
4
the residential property, to which access has also historically been from the
private roadway going south from Wilson Avenue SW. The private road splits
about 300 feet from Wilson Avenue SW, with the east portion of the road
continuing south along Newport’s First, Third, and Second Additions, toward and
beyond the residential property.
The portion of the road south of the split
contains cemented curbs on each side, a grass strip in the middle, and asphalt
along the sides. At the split, the westerly portion of the private road loops into a
teardrop-shaped driveway in front of the Newport Flowers building.
There are also several buildings, including an unoccupied house, a metal
shed, and greenhouses, located west and south of the Newport Flowers building
on land retained by the corporation Newport Flowers, Inc. after the subdivision
and sale of Lot 1 of Newport’s Fourth Addition. Pursuant to agreement on the
sale, one driveway to these structures accessed by crossing in front of the
Newport Flowers building at the northwest corner was closed; thereafter, the only
means of access has been on the private roadway on the eastern edge of
Newport’s Fourth Addition. Immediately south of all of these buildings is an open
field used for agricultural purposes by Gerald’s brother, Dale. There are two
remaining ways to enter into the field and other lands retained by Newport
Flowers, Inc.: a gravel road from Lori Drive SW to the west that turns into a dirt
pathway leading up the west side of the field and is impassable in wet or snowy
weather; or the access driveway from Wilson Avenue SW in dispute in this case.
Judith Dulin began working at Newport Flowers in 1995, following the
destruction by fire of her flower business located in Iowa City.
Dulin had
previously expressed an interest in purchasing the business and a portion of the
5
real estate owned by the corporation Newport’s Flowers, Inc., to which Gerald
had been the sole shareholder since 1989. Following negotiations, the parties
signed a “Sale Agreement” for the business and a portion of the land, which
provided among other things, a closing date of June 30, 1997, and a subdivision
of the land to be completed and approved by the City of Cedar Rapids
(Newport’s Fourth Addition).
To complete the subdivision of the property, Brain Engineering prepared a
preliminary plat to Lot 1, Newport’s Fourth Addition, including all of the property
owned by Newport’s Flowers, Inc. The preliminary plat, dated October 1996,
extended Hughes Drive SW south of Wilson Avenue SW into a proposed cul-desac known as Hughes Court SW, with the eastern half of the cul-de-sac providing
access to the flower shop. The plat also showed the existing private roadway
with the notation “existing drive” and “20’ access easement” adjacent to the road
in two locations on the plat. The plat shows the twenty-foot access easement
running south from Wilson Avenue SW to the southern boundary of Lot 1,
Newport’s Fourth Addition. Dulin was provided with a copy of the preliminary plat
and instructed Gerald that she preferred not to have half of the cul-de-sac
created by Hughes Court SW on her property at Lot 1, Newport’s Fourth
Addition. A second preliminary plat was prepared and submitted, showing the
Hughes Court SW cul-de-sac offset and located mostly on the property being
retained by Newport Flowers, Inc. The revised preliminary plat also contains the
same notation regarding “existing drive” and “20’ access easement” in two
locations along the private roadway. The final plat was prepared in June 1997,
and contains the words “20’ access, utility, and priv. drain easement” or “20’
6
access, priv. drain, and utility easement” in two locations along the roadway in
question in the location where the previous preliminary plat had read “20’ access
easement” and “existing drive.”
Dulin took over the business effective January 1, 1997, and leased the
premises and business for $1500 per month. Dulin paid rent up through May
1997, but as the closing date approached, the parties realized that Gerald
needed more time to complete required clean up of the premises. The sale was
closed in September or October 1998, and Newport’s Flowers, Inc. conveyed title
by warranty deed to Dulin, which described the property as “Lot 1, Newport’s
Fourth Addition to the City of Cedar Rapids, Linn County, Iowa.” Prior to the
closing, Dulin’s attorney reviewed the abstract of title and prepared a title opinion
which noted the utility easement for the “easterly twenty feet (20’) of the lot
[Dulin] was purchasing,” but failed to mention the access easement.
The
attorney cautioned that “I can give no report on the location of boundary lines,
rights of parties in possession or easements existing by virtue of usage, as the
same do not appear on the abstract.” Dulin also received copies of the plats,
including the final plat attached to the attorney’s title opinion, but she denied
reviewing them or the title opinion. The district court found to the contrary, that
she had in fact reviewed the plats and her husband had reviewed the title
opinion.
As the closing approached, Gerald and Jeanne claimed that they spoke
with Dulin regarding their ability to access the remaining property by using the
private roadway.
Dulin testified that she did not recall this particular
conversation, but that she was aware prior to the sale that Gerald, Jeanne,
7
Thomas, and Stephanie used the private roadway along the flower shop
business land to access their property south of Wilson Avenue SW. The closing
occurred in September 1998, and the various Newports continued to use the
private access road. Several years passed without incident between the parties
and use of the road. Then sometime in the summer of 2002, Dulin met with
Gerald and expressed her concern regarding the traffic over the east portion of
the road and her intention to construct a fence. She asserts that Gerald did not
oppose this, and a contractor erected a chain-link fence along the north portion of
Dulin’s east property line along the private roadway and a six-foot wooden
privacy fence between Thomas and Stephanie’s residence on Lot 1 (Newport’s
Third) and the private roadway up to the north end of the garage on Lot 2
(Newport’s Third). Also, two east-west chain link gates were placed across the
private roadway, controlling driveway access:
one at the south boundary of
Dulin’s property and the other at the north end of Thomas and Stephanie’s
property at Lot 1 (Newport’s Third). The gates were left open most of the time,
although Dulin admitted closing both sets of gates occasionally, but not locking
them.
With the construction of the fencing, the plaintiffs filed suit against Dulin in
June 2003 seeking to enjoin her from restricting the plaintiffs’ access to and use
of the private roadway. A temporary injunction was granted on June 6, 2003,
preventing Dulin from shutting the gates or otherwise blocking access to the east
roadway and from communicating with the plaintiffs or others that their access
easement was denied. Following trial, the district court entered a permanent
injunction in June 2005 against Dulin and those acting on her behalf from
8
erecting any fence or gate or otherwise blocking access to the private east
roadway and from communicating to the plaintiffs or their agents and invitees that
access was denied.
II. Scope of Review.
Because this case was tried in equity, our review is de novo. Owens v.
Brownlie, 610 N.W.2d 860, 865 (Iowa 2000).
III. Existence of an Easement.
Dulin appeals arguing that the plaintiffs failed to demonstrate an express
easement, implied easement, or easement by necessity with the evidence
presented at trial. In granting the permanent injunction, the district court ruled
that Newport’s Flowers, Inc. holds an express access easement over the easterly
twenty feet of the private road running the length of Lot 1, Newport’s Fourth
Addition, by virtue of the unambiguous language contained in the plats. The
court also ruled that Thomas and Stephanie hold easements both by necessity
and implication over the twenty foot access from the north boundary of Lot 1,
Newport’s Fourth Addition to the south boundary of Lot 2, Newport’s Third
Addition.
An easement has been defined in Iowa as
a liberty, privilege, or advantage in land without profit, existing
distinct from ownership of the soil, and because it is a permanent
interest in another's land, with a right to enter at all times and enjoy
it, it must be founded upon a grant by writing or upon prescription.
Independent Sch. Dist. v. DeWilde, 243 Iowa 685, 692, 53 N.W.2d 256, 261
(1952) (citations omitted). In general, a roadway easement may be established
in one of four ways: (1) by express written grant, (2) by prescription, (3) by
9
necessity, and (4) by implication. Kahl v. Clear Lake Methodist Camp Ass'n, 265
N.W.2d 622, 624 (Iowa 1978).
Express Easement—Newport Flowers, Inc. The district court ruled that
as the grantor in the real estate transaction, Gerald’s corporation Newport’s
Flowers, Inc. holds an access easement by virtue of the deed, with reference to
the language on the recorded plats. Since an easement is an interest in real
estate, an express grant to create an easement must satisfy the requirements of
a conveyance of an interest in real estate and must be in writing to satisfy the
statute of frauds.
See Iowa Code § 622.32 (2003).
Dulin argues that the
language on the plat is not sufficient to reserve an express easement for
Newport’s Flowers, Inc. We note that Dulin’s brief argument on the finding of an
express easement fails to cite any case law in support of her position. Although
the requirements of Iowa Rule of Appellate Procedure 6.14 allows us to deem
waived any arguments not properly supported, see Phone Connection, Inc. v.
Harbst, 494 N.W.2d 445, 449 (Iowa Ct. App. 1992), we choose to address the
merits. Despite Dulin’s contentions to the contrary, Iowa law observes that an
easement may also be granted in a plat and has the same legal effect as if it had
been explicitly granted in every subsequent deed or other instrument of
conveyance.
Maddox v. Katzman, 332 N.W.2d 347, 351-52 (Iowa Ct. App.
1982). The language contained on the plats is unambiguous that an access
easement exists on twenty feet of Lot 1, Newport’s Fourth covered by the private
roadway.
Furthermore, we observe that the obligation to repair an easement
generally rests with the party holding the easement, and the owner of the
10
servient estate through which another party has a right of travel is under no
obligation to repair.
Kepler v. Border, 179 Iowa 318, 161 N.W. 302 (1917).
Thomas testified that he for many years maintained and repaired the private
roadway in question since moving into the house in 1989, and either he or Gerald
routinely removed snow. This consistent maintenance did not change following
the sale to Dulin and she did not contradict this testimony. We also note the
following finding by the district court:
Since the warranty deed from Newport’s Flowers, Inc. to [Dulin]
conveyed the property by reference to the plat, it is not fatal to
Newport’s Flowers, Inc.’s claim of an express easement that the
warranty deed did not specifically refer to the access easement.
The notation of the access easement on the plat is sufficient.
We agree with the district court that the record supports the existence of an
express easement in favor of Newport’s Flowers, Inc. for use of the private
roadway and conclude that Dulin has failed to show how the record does not
support this conclusion. We affirm on this issue.
Easement by Implication or Necessity. Dulin also contends the district
court’s finding of an easement by implication and necessity in favor of Thomas
and Stephanie is not supported by the record. An easement by implication is
imposed “by inferring the parties to a transaction intended the result, although
they did not express it.” Schwob v. Green, 215 N.W.2d 240, 242-43 (Iowa 1974).
It arises with the following conditions: (1) a separation of the title; (2) a showing
that, before the separation took place, the use giving rise to the easement was so
long continued and obvious that it was manifest it was intended to be permanent;
and (3) it must appear that the easement is continuous rather than temporary,
and (4) that it is essential to the beneficial enjoyment of the land granted or
11
retained. Brede v. Koop, 706 N.W.2d 824, 830 (Iowa 2005). An easement is
“essential” when it is reasonably necessary, as distinguished from being merely
convenient. Id. “The intent to grant or reserve an easement by implication must
be determined as of the time of the severance of the unity of ownership.” Id.
(quoting Bray v. Hardy, 248 Iowa 794, 797, 801, 82 N.W.2d 671, 675 (1957)). An
easement by implication may be claimed by either a remote grantor or a remote
grantee if such a right existed in favor of a prior party for whom they take an
interest. Schwob, 215 N.W.2d at 244.
To establish an easement by necessity, a claimant must prove: (1) unity
of title to the dominant and servient estates at some point prior to severance; (2)
severance of title; and (3) necessity of the easement.
Nichols v. City of
Evansdale, 687 N.W.2d 562, 568 (Iowa 2004). In contrast to the easement by
implication, no showing of intent of the parties to create a right of easement is
required to prove an easement by necessity. Id. Strict necessity need not be
proven, but showing mere inconvenience is not enough to establish the
easement. Schwob, 215 N.W.2d at 245. When the use of an alternative involves
disproportionate expense and inconvenience, the necessity requirement may be
satisfied. Id. at 244.
Dulin asserts there was not a clear intent to create an easement and that it
was not reasonably necessary. In addition to finding the required separation of
title and the continuous use, the district court made the following findings:
Lots 1 and 2, Newport’s Third Addition, owned by Tom and
Stephanie, are located on Newport Drive. However, there is no
existing driveway from Newport Drive to Tom and Stephanie’s
garage. While the construction of such a driveway would not be
impossible, it would be very costly. The difference in elevation from
12
Newport Drive to the garage is four to five feet. Retaining walls or
extensive grading would be required, and installation of city
sidewalks may be required. William Crary, [Dulin’s] engineer,
declined to give a cost estimate for the installation of a driveway,
retaining walls, or grading the lot. The location of the garage doors
on the west side of the garage rather than the east side and the
location of the garage very close to the property line between
[Dulin] and Tom and Stephanie would make it very difficult and
extremely inconvenient to access the garage, particularly if [Dulin]
should choose to extend her existing fence southerly past the
garage. Approaching the existing garage doors from Newport Drive
involves an additional obstacle, which is a large tree depicted in
Exhibit EE-3, which would prevent the construction of driveway
from Newport Drive to the garage with a gradual turning radius. I
conclude that access to the garage from Newport Drive would
involve disproportionate expense and inconvenience. Therefore, it
is necessary that Tom and Stephanie use the 20-foot access
depicted along the east side of lot 1 on the final plat, Newport’s
Fourth Addition, for access to their home and garage.
....
Before the separation of title, the driveway was used by Tom
and Stephanie’s predecessors in interest (Leonard and Edith and
their tenants) for many years prior to 1968. The driveway was
improved, clearly defined and used on a very regular basis.
Therefore, the driveway easement was so long continued and
obvious, that it was intended by Leonard and Edith in 1968 when
the separation of title occurred that the driveway easement be
permanent.
The driveway was essential to the beneficial
enjoyment of the land owned by Tom and Stephanie’s
predecessors in interest. For the reasons stated in section 2
above, I conclude that the driveway easement is essential to Tom
and Stephanie’s beneficial enjoyment of lots 1 and 2, Newport’s
Third Addition.
....
Tom and Stephanie have an easement by implication and an
easement by necessity over the “20’ access” which runs along the
east side of lot 1, Newport’s Fourth Addition, from Wilson Avenue to
the south boundary line of lot 2, Newport’s Third Addition.
These findings fully support an easement by necessity and by implication
in the record, and Dulin fails to assert a compelling argument based on law and
the facts of this case that would alter this conclusion.
13
We affirm the district court’s grant of a permanent injunction against the
defendant.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
