CITY OF EMMETSBURG, Plaintiff-Appellee, vs. KARAN A. MCSHEA, RONALD D. SEAMAN, OSCAR KALLESTAD, LEORA KALLESTAD, KENNETH A. EWEN, II, RICHARD S. DEE, TERESA A. DEE, CAROL J. ANDE RSON, DONALD C. NAUSS, LEON BLANCHET, LAURA BLANCHET, RI CHARD LEE HENRICH, SHIRLEY ANN ROBERTS, ETHELYN HENRICH, JA MES L. KIBBIE, KATHERINE J. KIBBIE, JANE M. WENTZEL, MICHAEL L. WENTZEL, ROBERT L. WENTZEL, KELLY J. WENTZEL, VENDELL C. REZA BEK, RITA M. REZABEK, DONALD C. NAUSS, FLORA ANN S. NAUSS, a/ k/a FLORANNE S. NAUSS a/k/a FLORA ANNE NAUSS, RODNEY A. HILL, NORA C. HILL, JOHN M. REICHERT, ROBERT J. BOES, ELAINE L. BOES, JEFFREY J. KERBER, ROBIN LEWIS KERBER, SHARON A. HO OBLER and JAMES A. HOOBLER, Defendants-Appellants, MICHAEL A. OLSON and KRIST IE A. OLSON, et al., Defendants.
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IN THE COURT OF APPEALS OF IOWA
No. 7-265 / 06-0754
Filed August 8, 2007
CITY OF EMMETSBURG,
Plaintiff-Appellee,
vs.
KARAN A. MCSHEA, RONALD D. SEAMAN, OSCAR KALLESTAD,
LEORA KALLESTAD, KENNETH A. EWEN, II, RICHARD S. DEE,
TERESA A. DEE, CAROL J. ANDERSON, DONALD C. NAUSS, LEON
BLANCHET, LAURA BLANCHET, RICHARD LEE HENRICH, SHIRLEY
ANN ROBERTS, ETHELYN HENRICH, JAMES L. KIBBIE, KATHERINE J.
KIBBIE, JANE M. WENTZEL, MICHAEL L. WENTZEL, ROBERT L. WENTZEL,
KELLY J. WENTZEL, VENDELL C. REZABEK, RITA M. REZABEK, DONALD
C. NAUSS, FLORA ANN S. NAUSS, a/k/a FLORANNE S. NAUSS a/k/a
FLORA ANNE NAUSS, RODNEY A. HILL, NORA C. HILL, JOHN M.
REICHERT, ROBERT J. BOES, ELAINE L. BOES, JEFFREY J. KERBER,
ROBIN LEWIS KERBER, SHARON A. HOOBLER and JAMES A. HOOBLER,
Defendants-Appellants,
MICHAEL A. OLSON and KRISTIE A. OLSON, et al.,
Defendants.
________________________________________________________________
Appeal from the Iowa District Court for Palo Alto County, Don E. Courtney,
Judge.
Appellants challenge a district court decision that quieted title in the State
to shoreline created with fill dredged from Five Island Lake in the early part of the
twentieth century.
Appellants contend this land became their property as
successors in interest to the original riparian owners.
REMANDED.
REVERSED AND
2
David P. Jennett, Storm Lake, for appellants.
Stephen F. Avery of Cornwall, Avery, Bjornstad & Scott, Spencer, for
appellee.
Heard by Sackett, C.J., and Vogel and Baker, JJ., and Nelson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
3
SACKETT, C.J.
This action was brought by the City of Emmetsburg, Iowa, 1 seeking to
quiet title in the City to shoreline property located on Five Island Lake, formerly
known as Medium Lake. The questioned land from the South Bay between the
trestle bridge on the north and Soper Park on the south, was created with fill
dredged from the lake in the early part of the twentieth century. The dredging
followed the passage by the General Assembly of Iowa in 1909 of a Special Act
for the Preservation and Improvement of Medium Lake (Special Act).
The
defendants-appellants 2 contend the northeast side of the lake dredge fill as it
relates to the property in Ormsby’s Trust Addition became and continues to be
the property of the riparian owners on the shoreline and, as successors in title,
these owners contend the questioned land is theirs. The district court found the
State of Iowa to be the record title holder.
Appellants contend (1) the 1909 Special Act preserved the title of the
riparian owners to the shoreline, (2) the district court’s finding the placement of
the land had an independently reasonable and substantial relationship to a
navigational or other paramount public purpose was erroneous, (3) neither the
City nor the State demonstrated they acquired title to the land by adverse
possession, and (4) the district court erred in not considering that the lot owners
had an easement by implication.
The City contends (1) the Special Act established the dredge fill as public
land, (2) the placement of the dredge fill had a public purpose beyond navigation,
(3) the evidence shows the shoreline in question has been used as public
1
2
The State of Iowa appeared and specifically concurred in the relief sought by the City.
A number of other defendants were in default or did not appeal the ruling.
4
property for over fifty years and any interest the riparian owners may claim to it
was lost through adverse possession. We reverse and remand.
SCOPE OF REVIEW.
The purpose of a declaratory judgment is to
resolve uncertainties and controversies before obligations are repudiated, rights
are invaded, or wrongs are committed. Dubuque Policemen’s Protective Ass’n v.
City of Dubuque, 553 N.W.2d 603, 607 (Iowa 1996). Our review of an action for
declaratory relief is determined by the manner in which the action was tried to the
district court. SDG Macerich Props, L.P. v. Stanek, Inc., 648 N.W.2d 581, 584
(Iowa 2002) (citing Walsh v. Nelson, 622 N.W.2d 499, 502 (Iowa 2001)). This
case was filed in equity and, to the extent we are to determine whether or not it is
appropriate to grant equitable relief, our review is de novo. Johnson v. Kaster,
637 N.W.2d 174, 177 (Iowa 2001). We must examine the facts as well as the
law and decide the issues anew. Id. In doing so, we give weight to the district
court’s findings of fact, but we are not bound by these findings. Id. However as
to review of issues involving the interpretation of a statute or special acts we
review for the correction of errors at law. Iowa R. App. P. 6.4; State v. Carpenter,
616 N.W.2d 540, 542 (Iowa 2000); State v. Schultz, 604 N.W.2d 60, 62 (Iowa
1999). We are not bound by the district court’s application of legal principles.
Schultz, 604 N.W.2d at 62.
HISTORY.
Emmetsburg, the county seat of Palo Alto County, is in
northwest Iowa. To the north, Emmet County lies between Palo Alto County and
the Minnesota border. To the west Clay, O’Brien, and Sioux counties lie between
it and the South Dakota border. The Wisconsin glacier covered this area with
glacial till about 12,000 to 15,000 years ago and, as a result this part of the state
5
has a number of swamps, lakes, marshes, and wetlands. In 1850 the federal
government transferred ownership of swamp lands to the State, allowing the
State to drain the swamps and sell the reclaimed land. Iowa provided that a lake
or swamp land could be drained if twenty people residing in the township where
the body of water was located and fifty other landowners in the county petitioned
to drain it, subject to the approval of the Executive Council of Iowa.
For a
number of years there was a dispute in Palo Alto County over draining the lake.
The farmers seeking more land wanted the lake drained, while the townspeople,
looking at Medium Lake for recreational purposes, were against it. At the time
Medium Lake was low, the water quality was poor, it was overgrown with reeds
and rushes, and was not usable for recreational boating. Other lakes in the area
were being drained.
In late 1907 a published notice indicated there was a petition on file
seeking authority to drain Medium Lake, contending it was a health hazard. The
matter came on for hearing before the Executive Council of Iowa in February of
the next year and the petition was denied. Thus began an effort to improve the
lake. It would be an awesome task and require substantial funds to accomplish.
In March of 1909, while the collection of funds to support improving the
lake was yet in process, the Iowa 33rd General Assembly enacted the Special
Act entitled Preservation and Improvement of Medium Lake. 3
3
The stated
Preservation and Improvement of Medium Lake.
An act for the preservation and improvement of Medium Lake and
the islands therein and placing the same within the jurisdiction of the city
of Emmetsburg.
Be it enacted by the General Assembly of the State of Iowa:
Section 1. Reserved for park purposes. That Medium Lake in
Palo Alto county, Iowa, and the islands therein belonging to the state, or
6
purpose of the act was “for the preservation and improvement of Medium Lake
and the islands therein and placing same under the jurisdiction of the City of
Emmetsburg.”
Dredging commenced with funding provided both by the City and private
individuals. By 1920 the dredging was completed and the lake was smaller,
deeper, and sported a more stable shoreline. Some of the silt removed from the
lake was used to enlarge existing islands or construct a new island. Some of the
silt was deposited outside the former shoreline. The question quickly arose as to
that shall be formed under this act, are hereby reserved from sale or other
disposition and dedicated and set apart to the use of the people of the
state for public parks and recreation grounds.
Section 2. Jurisdiction. The jurisdiction of the city of Emmetsburg
is hereby extended so as to include the public waters and public lands
within said Medium lake with the like force and effect as if the same were
a part of the streets, public grounds and parks of said city, subject to the
limitation in this act contained.
Section 3. Improvement authorized. Said city of Emmetsburg is
hereby authorized and empowered to provide for the deepening,
dredging, improving and beautifying of said Medium lake and public lands
therein, and of such portions thereof as it shall determine, and for the
formation of additional islands or of new land along the shore for the
disposition of material dredged from the lake and to make such
alterations in the shore lines of said lake as may be necessary to
accomplish the improvements hereby authorized subject always to the
riparian rights of private owners. But said city may authorize the riparian
owners to make such necessary alterations and additions at their own
expense. Said city is further authorized to lay out, establish and improve
streets, parks and boulevards along the shores of said lake or upon such
new land. Said city is further authorized and empowered to provide for
the stocking of said lake with fish and for the propagation and
preservation thereof. Nothing herein contained shall be construed as
excepting said lake from the operation of the general fish and game laws
of the state.
Section 4. In effect. This act being deemed of immediate
importance shall take effect and be in force from and after its publication
in the Register and Leader, a newspaper published at Des Moines, Iowa,
and the Palo Alto Reporter, Emmetsburg Democrat and Palo Alto
Tribune, newspapers published at Emmetsburg, Iowa, without expense to
the state.
Approved February 13, A.D. 1909
Publication certified (Emphasis supplied).
7
who owned the new shoreline, a question that continued to plague the riparian
property owners, the City, and the State over the next many decades and is the
question that faces us in this appeal. 4
PROCEEDINGS.
In 2004, the City filed the petition for declaratory
judgment that leads to this appeal, seeking to quiet title to the disputed dredge fill
land.
Many defendants, including the appellants, filed answers and
counterclaims. Some did not appear and were found in default.
Following trial, the district court quieted title in the property in the State of
Iowa. The court held the Special Act was clear in its intent and the dredge fill
was placed along the lakeshore for a public purpose. The court, while finding
title to the property was in the State, further found jurisdiction over the lake’s
development, including the challenged property, was in the City under the terms
of the 1909 Special Act. The court concluded the defendants’ riparian rights
were subject to the City’s jurisdiction and subservient to the use of the dredge fill
land for a public purpose. The court distinguished this case from other Iowa
cases addressing dredging and accretion, reasoning the Special Act specifically
addressed dredging, and jurisdiction over the dredge fill only as to this specific
lake. The court determined the land was public property, subject to riparian
rights rather than private property subject to public access. The court noted the
private property owners were guaranteed continued right of access to the lake by
the City.
4
The court further held the placement of the dredge fill had an
In tracing the history, the parties and district court have relied on a plaintiff’s exhibit,
James L. Coffey, Saving Glacier’s Creation, Five Island Lake Restoration Projects
(McMillen Publishing 2003).
8
independently reasonable and substantial relationship to the same public
purpose to which the riparian rights were subservient.
THE 1909 SPECIAL ACT.
Our goal in interpreting statutes is to
determine legislative intent. State v. Wagner, 596 N.W.2d 83, 87 (Iowa 1999).
We determine the intent from what the legislature said, not from what it might or
should have said. See Iowa R. App. P. 6.14(6)(m). If the language is clear and
unambiguous, we apply a plain and rational meaning in light of the subject matter
of the statute. City of Waukee v. City Dev. Bd., 590 N.W.2d 712, 717 (Iowa
1999). However, if reasonable minds could disagree over the meaning of a word
or phrase of a statute, the statute is ambiguous and we resort to the rules of
statutory construction. Id. When construing the statute, we read the language
used, and give effect to every word. State v. Osmundson, 546 N.W.2d 907, 910
(Iowa 1996).
We apply all relevant doctrines of construction in determining
intent.
Defendants contend the 1909 Special Act preserved the title of the
riparian owners to the shoreline. They contend it is clear from the Special Act
that the legislature did not attempt to restrict the riparian right of private owners.
Defendants argue the legislature intended to qualify the right of the City to
establish parks and streets on the shore on public land, including State owned
land, but did not extend to the City the right to establish parks and streets on
riparian land held by private persons. They point out that while the Special Act
makes provision for the disposition of the material dredged to make alteration in
the shoreline to accomplish the authorized purpose, it specifically provides the
authorization is “subject always to the riparian rights of private owners.”
9
The City contends that while the riparian rights of private owners are
referenced in the Special Act, it does not specifically grant ownership or
jurisdiction to private owners having riparian rights. The City argues that if the
General Assembly intended to grant title to the dredge fill to abutting landowners
it could certainly have so provided.
The City points out that before the dredge fill the riparian owners had a
right of access to the lake which was then a slough or swamp, and after the fill
the City recognized that the riparian owners continued to have access to the lake
and, among other things, allowed docks to be constructed along the shoreline.
The defendants contend this is no more than the minimal access available to the
general public and they are entitled to the access of riparian owners. They point
us to Robert’s River Rides, Inc. v. Steamboat Dev. Corp., 440 N.W. 2d 884, 889
(Iowa 1998). There the court noted that owners of land adjacent to navigable
waters possess certain common law rights, apart from those of the general
public, which are incidents of riparian ownership, which right is subject to the
right of the government to maintain and promote navigation by whatever
reasonable means. Id.
RELATIONSHIP TO NAVIGATION OR OTHER PUBLIC PURPOSE. The
defendants contend the district court erred in finding the placement of the land
had an independent reasonable and substantial relationship to a navigational or
to other public purpose.
They argue that the City failed to prove that the
placement of the fill had a navigational or public purpose to which the riparian
owners’ right of access was made subservient. The City contends the placement
of the fill had a public purpose beyond navigation.
10
This distinction is important for it is relevant to determining who has rights
to an accretion that results from an addition to the shore line. See Nielsen v.
Stratbucke, 325 N.W.2d 391, 392 (Iowa 1982). The right to accreted land is the
same whether it results from natural causes or from artificial means over which
the owner of the land has no control. C.H. Moore Trust Estate by Warner v. City
of Storm Lake, 423 N.W.2d. 13, 13 (Iowa 1988); Lakeside Boating & Bathing, Inc.
v. State, 344 N.W. 2d 217, 221 (Iowa 1984). In the case of artificial depositing of
land as we have here, the riparian owner will become the owner of the additional
land unless the dredging operation is reasonably necessary for navigational or
other paramount state purposes. Moore Trust, 423 N.W.2d at 14; see Lakeside,
344 N.W.2d at 221-22; see also Park Commission v. Taylor, 133 Iowa 454, 46162 (1907). There the Iowa court recognized cases from other jurisdictions that
held accretions that may have been due to artificial causes inures to the benefit
of the riparian owner while finding that riparian owners had no rights to extension
of their lots to the river where encroachment was the result of lot owners placing
fill along the bank.
The defendants argue that the district court, in interpreting the Special Act,
ignored the language of Lakeside, 344 N.W.2d at 221-22. There the court was
asked to determine ownership of dredge fill to the shore line of Storm Lake in
Buena Vista County. The Iowa Supreme Court said:
[T]he State’s purpose in dredging a lake to enhance recreational
navigation, for example, will not automatically give the State title to
dredge fill that it deposits against the shore. For the State to have
title to the new land, the dredge fill’s particular placement must
independently have a reasonable and substantial relationship to the
same or different navigational or other public purpose to which the
riparian owner's right of access is made subservient by law.
Otherwise a taking would occur. Thus, if the particular placement
11
of dredge fill does not independently serve a recognized paramount
governmental purpose, the riparian owner acquires title to the made
land as if it had been deposited against the shore by accretion.
Id. (emphasis supplied).
The defendants note the district court here concluded that the particular
placement of the fill at Five Island Lake did have an independently reasonable
and substantial relationship to the same or different navigational and/or other
public purpose to which the riparian owners’ right of access is subservient
because the Special Act allowed the City jurisdiction to dredge. They argue that
for the district court to reach this conclusion, it had to find the paramount public
purpose of the Special Act was for creation of parks and streets.
The City argues that because the dredging of Five Island Lake was under
the authority of the Special Act and the dredge fill was created by the Special
Act, the Five Island Lake situation is different from the Storm Lake situation. It
argues, as the district court found, that the Special Act as to Five Island Lake
specifically providing authority for “parks and boulevards upon the new land,”
shows a clear legislative intent that the jurisdiction be in the City, the parkway be
treated like other city parks, and the General Assembly did not recognize the
riparian rights of the abutting property owners. (Emphasis supplied).
The City also argues the navigational reason was apparent because prior
to the dredging, the lake was a swamp and was not navigable. The defendants’
discount this argument, advancing that the need to dredge a lake does not give
the State the right to deposit the fill on the shoreline and in effect move private
land away from the lake shore. Defendants argue this is why the Special Act
12
referenced riparian rights and authorized the creation of islands in the lake, so no
title problems would be created.
It is not a taking of private property for the State to make changes in a lake
bed when reasonably necessary in aid of navigation, even though the changes
have the effect of cutting off a riparian owner’s access to the lake. Lakeside, 344
N.W.2d at 221; Peck v. Alfred Olsen Constr. Co., 216 Iowa 519, 525-33, 245
N.W.2d 131, 134-37 (1932). However, the related project is immune from private
rights only when it is so related to a project under the acknowledged public
powers in the navigable waters that enjoyment of the latter project would be
substantially impaired without the creation of the former. See Lakeside, 344
N.W.2d at 220 (citing Michaelson v. Silver Beach Improvement Ass’n, 173
N.E.2d 273, 277 (Mass. 1961)). There is not a taking if a navigational purpose
existed in the made land. See Lakeside, 344 N.W.2d at 221. In Michaelson the
court found where the state placed dredge fill from a harbor improvement project
along plaintiffs’ private beach that the creation of the beach was not necessary
for the enjoyment of the dredged channel. Michaelson, 173 N.E.2d at 277-78.
While the City here has shown that dredging may have been necessary for
navigation, including recreational navigation, there is no showing that the
placement of the dredge fill on the shoreline was necessary to enjoying the
navigational enhancement of the lake.
The City has failed to show that the
placement of the fill was subject to the dominant right of the State to improve
navigation.
Furthermore, there was no showing the placement of parks and
roadways were necessary to enjoying the navigational enhancements of the lake.
We reverse the district court’s contrary findings.
13
The question therefore becomes whether the provisions of the Special Act
created, as the district court found, an exception to the general rule. That is, did
the provisions of the Special Act deprive the riparian owners of the right to the
dredge fill to which they would otherwise have been entitled. We find it did not.
The City was authorized to dredge and form additional islands or new land
along the shore, but the authority was “subject always to the riparian rights of
private owners.” And while we agree that the City was authorized to lay out,
establish, and improve streets, parks and boulevards “along the shore of the lake
or on new land,” nothing in this language modified the rights of the riparian
owners, which were affirmed in a prior paragraph. We reverse the district court’s
finding that the Special Act divested the riparian land owners of title to the fill.
ADVERSE POSSESSION.
Defendants contend that at all times they
have used the property as riparian owners and the State and/or City cannot claim
the land by adverse possession. The City contends that the record supports a
finding the land was used as public property and this is sufficient evidence to
support a finding they took it by adverse possession.
We find that the City has established a prescriptive easement for a
roadway between the fill and the original shoreline, but it has failed to prove it or
the State are entitled to acquire the balance of the property through adverse
possession.
1.
Prescriptive Easement.
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
14
158, 161 (Iowa 1996); Simonsen v. Todd, 261 Iowa 485, 489, 154 N.W.2d 730,
732 (1967); see also Iowa Code § 564.1 (2005). It is based on the principle of
estoppel and is similar to the concept of adverse possession. Webb v. Arterburn,
246 Iowa 363, 378, 67 N.W.2d 504, 513 (1954). We apply the principles of
adverse possession to establish a prescriptive easement and use adverse
possession to describe an easement by prescription. Collins Trust v. Bd. of
Sup’rs, 599 N.W.2d 460, 463 (Iowa 1999). The fundamental distinction between
the two doctrines is an easement by prescription concerns the use of property,
while adverse possession deals with the acquisition of title to property by
possession. Id. The mere use of land does not, by lapse of time, ripen into an
easement.
Schaller v. State, 537 N.W.2d 738, 742 (Iowa 1995).
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. The public has been found to be acting under a
claim of right where a road had been legally established, used and improved.
See Barnes v. Robertson, 156 Iowa 730, 733-34, 137 N.W. 1018, 1019 (1912);
Collins Trust, 599 N.W.2d at 463. The road has been established and improved
for more than fifty years. The public has a prescriptive easement to it.
A party claiming title by adverse possession must establish hostile, actual,
open, exclusive, and continuous possession, under claim of right or color of title
for at least ten years.
C.H. Moore Trust Estate v. City of Storm Lake, 423
N.W.2d 13, 15 (Iowa 1988).
Proof of these elements must be “clear and
positive.” Id.; Carpenter v. Ruperto, 315 N.W.2d 782, 784 (Iowa 1982). Because
the law presumes possession is under regular title, the doctrine of adverse
15
possession is strictly construed. Mitchell v. Daniels, 509 N.W.2d 497, 499 (Iowa
Ct. App. 1993).
The City admits that the owners put docks out and used the land, but
argues that there are docks in Iowa extending from public land and that fails to
refute the State’s claim of adverse possession. The City further argues there
was no dispute about ownership until a bike trial was proposed in 1996, the
landowners participated in a public improvement bond issue in 1990, and the City
required them to remove their items left in the area.
Defendants contend the lot owners’ testimony supports a finding that they
continuously used the dredge fill as their own property. They challenge the City’s
assertion that the bond issue of 1990 was evidence of adverse possession and
note that when the City proposed a bike trail in 1996, the lot owners objected and
the trail was not constructed.
Various lot owners testified to making
improvements on the property, cleaning up and maintaining the property, putting
docks out from the property, rip rapping along the shore line, putting field stone
along the shore line, trimming and planting trees in the area, putting in dirt and
planting grass and wild grasses, pulling out an old stump, mowing the area,
taking bushes out, bringing in sand, storing things there, planting perennials,
putting a fire pit on the property, installing a bench for storage, installing an
irrigation pump, planting flowers and setting up an American flag.
The ownership of the land has been disputed since it was created. The
defendants and the City have exercised certain ownership rights but neither has
used the property to the exclusion of the other. Rather they have each enjoyed a
hybrid sort of possession. Yet neither the City nor the State has acted in such a
16
manner as to clearly indicate a claim of title or absolute ownership. See Huebner
v. Todd, 387 N.W.2d 144, 146 (Iowa Ct. App. 1986) (dismissing a claim of
adverse possession to land that competing parties both mowed and fought over).
We construe the special act as not depriving the riparian owners of the right to
dredge fill to which they would otherwise be entitled.
We reverse the finding the State is the record titleholder of the shoreline
area in question and find that at the time the fill was placed it became the
property of the riparian owners.
We dismiss defendant’s counterclaim, there
being insufficient evidence to support their prayer that we quiet title to their
properties and decree that they are the absolute owners in fee simple of real
estate described in their counterclaim, there being insufficient evidence in the
record to make such a determination.
We determine that the City has
established a prescriptive easement for the public over the existing roadway but
has failed to establish a claim to the shoreline area based on adverse
possession.
Costs on appeal are taxed two thirds to the City and one third to the
property owners.
REVERSED AND REMANDED.
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