MILES M. MILLS JR., Plaintiff-Appellant, vs. KAYNE ROBINSON, DONNA ROBINSON, KIRBY SMALL and SHERRY SMALL, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-579 / 08-0739
Filed September 2, 2009
MILES M. MILLS JR.,
Plaintiff-Appellant,
vs.
KAYNE ROBINSON, DONNA ROBINSON,
KIRBY SMALL and SHERRY SMALL,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen Romano,
Judge.
Plaintiff appeals the district court ruling on his petition to quiet title under a
theory of adverse possession. AFFIRMED.
Peter Cannon, West Des Moines, for appellant.
Meghan Hanson of Sporer & Flanagan, P.C., Des Moines for appellees
Robinsons.
Kirby and Sherry Small, Des Moines, appellees pro se.
Considered by Vogel, P.J., and Potterfield, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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BEEGHLY, S.J.
I.
Background Facts & Proceedings
Miles Mills Jr. and his late wife purchased 3110 St. Johns Road, Des
Moines, in 1965. At the time he moved in, Mills purchased a “notch” of land to
the east to expand his garage. He began regular use of the land to the east of
the garage, the disputed property, at that time. While the adjoining owners and
Mills shared use of a portion of the disputed area, Mills’s use was exclusive in the
area awarded by the trial court.
In 1979 Kayne and Donna Robinson moved into the property to the east of
Mills at 3100 St. Johns Road. In 1980, Mills had eleven tons of dirt hauled in and
put in the area to the east of his driveway in order to level that area. He planted
groundcover to prevent erosion in the area. Mills testified he spent between
$12,000 to $20,000 for plants. Mills tended to the area and accessed it several
times each week. The Robinsons did not object to Mills’s use of the property.
On November 14, 2005, the Robinsons entered into a real estate contract to sell
3100 St. Johns Road to Kirby and Sherry Small. The Smalls disputed Mills’s use
of the land and an acrimonious relationship developed.
On October 24, 2006, Mills filed a petition to quiet title, and claimed the
Smalls had engaged in trespass.
On November 17, 2006, the district court
granted Mills’s motion for a temporary injunction prohibiting the Smalls from
entering the disputed area during the term of the action or from contacting Mills.
On May 18, 2007, Mills filed a motion to show cause, claiming Kirby Small had
intentionally violated the terms of the temporary injunction by shouting profanities
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at Mills and threatening bodily harm. Additionally, the Smalls filed a cross-claim
against the Robinsons, claiming they failed to deliver possession of the entire
property.
The district court issued a ruling on January 22, 2008. The court found
the testimony of Mills was credible, while the testimony of Kirby was not credible.
The court found “Mills clearly maintained and improved the land at the northern
end of the disputed property.” The court also found, however, “The disputed
area south of the plantings, that is, the area from the north edge of Mills’s garage
to the back fence, was not entirely treated in the same manner.” The court noted
that while Mills used the southern part of the disputed property to store mulch,
the Robinsons also used the area for storage and snow removal. The court
determined Mills had acquired, by adverse possession, an area 8.5 feet by 39.87
feet in the northern end of the disputed property, and 2.53 feet by 59.88 feet in
the southern end of the disputed property.
The court found Kirby had willfully cut and damaged trees on Mills’s
property and awarded Mills damages of $15,000.
Also, Kirby had willfully
destroyed a gate and Mills was awarded damages of $580. The court found the
Smalls
had
not
established
their
cross-claim
against
the
Robinsons.
Furthermore, the court found Kirby guilty of two counts of contempt for violating
the temporary injunction. Kirby was ordered to pay $940 in Mills’s attorney fees
and court costs.
Mills and the Smalls filed motions pursuant to Iowa Rule of Civil Procedure
1.904(2). The court denied the motions. The court granted Mills’s request for a
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permanent injunction prohibiting Kirby from having any contact whatsoever with
Mills, or from entering the land awarded to Mills. Mills appeals the district court’s
decision failing to grant him the total amount of the disputed area.
II.
Standard of Review
An action to quiet title is heard in equity, and our review is de novo. Barks
v. White, 365 N.W.2d 640, 643 (Iowa Ct. App. 1985). 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.
Adverse Possession
A party claiming title to property under the doctrine of adverse possession
must show hostile, open, exclusive, and continuous possession, under a claim of
right or color of title, for at least ten years. Carpenter v. Ruperto, 315 N.W.2d
782, 784 (Iowa 1982). The doctrine of adverse possession is strictly construed.
Garrett v. Huster, 684 N.W.2d 250, 253 (Iowa 2004).
A claim of adverse
possession must be established by clear and positive evidence.
Mitchell v.
Daniels, 509 N.W.2d 497, 499 (Iowa Ct. App. 1993).
The elements of hostility and claim of right are closely related. Brede v.
Koop, 706 N.W.2d 824, 828 (Iowa 2005). A party must show an assertion of
ownership by declarations or acts establishing a claim of exclusive right to the
land. Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001). Continued use
does not, by the mere lapse of time, become hostile or adverse. Mensch v.
Netty, 408 N.W.2d 383, 387 (Iowa 1987).
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“Although mere use does not constitute hostility or a claim of right, some
specific acts or conduct associated with the use will give right to a claim of right.”
Collins Trust v. Allamakee County Bd. of Sup’rs, 599 N.W.2d 460, 464 (Iowa
1999). “Thus, acts of maintaining and improving land can support a claim of
ownership and hostility to the true owner.” Id. Whether a party has established a
claim of right must be determined on a case-by-case basis.
Johnson, 637
N.W.2d at 179.
We agree with the district court’s assessment that Mills satisfied the
elements of adverse possession for the front part of the disputed property. The
facts are different, however, regarding the back part of the property. There was
testimony that the Robinsons used the back part to store items. Thus, as to the
back part of the property, Mills has not shown an exclusive use of the disputed
property.
See Johnson, 637 N.W.2d at 179 (noting a party must show “an
assertion of ownership by declarations or acts showing a claim of exclusive right
to the land”).
Also, Mills did not maintain the back part of the property to the same
extent as the front part.
Mills had brought in dirt to level off the front part,
expended between $12,000 to $20,000 on plants, and spent several hours each
week maintaining the area. In the back part of the property he stored mulch.
The trial court found the testimony of Kayne Robinson persuasive that Mills made
little use of the disputed property outside of the area adjoining his driveway and
garage. From that the trial court could infer that Mills use was inconsistent with a
claim of ownership, not only during Robinson’s ownership, but also for the period
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from 1965 through 1979. We agree with the district court’s conclusion that Mills
did not engage in sufficient maintenance and improvement on the back part of
the disputed area to establish a claim of ownership.
See Collins Trust, 599
N.W.2d at 464 (finding “acts of maintaining and improving land can support a
claim of ownership”).
IV.
Prescriptive Easement
In the alternative, Mills asks that he be granted an easement by
prescription over the total area of the disputed property. This issue was raised
for the first time in Mills’s motion under rule 1.904(2). A motion pursuant to rule
1.904(2) is not properly used as a method to introduce a new issue not
previously raised before the court. See In re Marriage of Bolick, 539 N.W.2d
357, 361 (Iowa 1995) (finding a rule 1.904(2) motion permitted the court to
enlarge or modify its findings based on the evidence in the record, the motion
was not a vehicle for parties to retry issues based on new facts). We conclude
this issue was not properly preserved for our review.
V.
The Smalls’ Claims
In their pro se brief on appeal, the Smalls ask that the decision of the
district court be overturned. They assert Mills did not adequately demonstrate a
claim of adverse possession. The Smalls did not cross-appeal. A party that
neither appeals nor cross-appeals is entitled to no greater relief than it was
accorded by the district court. Federal Land Bank v. Dunkelberger, 499 N.W.2d
305, 308 (Iowa Ct. App. 1993). We conclude the Smalls are not entitled to any
relief on appeal.
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We affirm the decision of the district court.
AFFIRMED.
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