JAMES A. TOOL and M. CYNTHIA TOOL, Plaintiffs-Appellants/Cross-Appellees, vs. ROBERT GENE NOLIN and MARJORIE M. NOLIN, Defendants-Appellees/Cross-Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 9-751 / 08-2012
Filed December 30, 2009
JAMES A. TOOL and
M. CYNTHIA TOOL,
Plaintiffs-Appellants/Cross-Appellees,
vs.
ROBERT GENE NOLIN and
MARJORIE M. NOLIN,
Defendants-Appellees/Cross-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Gregory A. Hulse,
Judge.
James and Cynthia Tool appeal, and Robert and Marjorie Nolin crossappeal, from the district court ruling quieting title to certain real estate to the
Tools. AFFIRMED.
Bruce Nuzum of Matthias, Campbell, Tyler, Nuzum & Rickers, Newton, for
appellant.
James C. Ellefson of Moore, McKibben, Goodman, Lorenz & Ellefson,
L.L.P., Marshalltown, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Danilson, JJ.
2
DANILSON, J.
James and Cynthia Tool appeal, and Robert and Marjorie Nolin crossappeal, from the district court ruling that the Tools had proved title by adverse
possession to a small piece of rural land, triangular in shape, amounting to less
than 1/3 acre that was previously part of a railroad line (“the triangle”), with the
exception of the south twenty feet of the triangle.
I. Background Facts and Proceedings.
In an earlier appeal on the instant case, this court remanded for a trial on
the issues of adverse possession and boundary by acquiescence.1
Our
February 27, 2008 ruling contains a detailed factual background regarding the
parties’ claims of ownership to the triangle, which we reiterate in part:
Nolins’ Claim. The Nolins trace their right to the land as
follows. In 1877, a deed transferring the land to Iowa, Minnesota
and N.P. R.R. Co. was recorded in the office of the Jasper County
Recorder. That deed recited, in pertinent part,
that in case the said Railway Company does not
construct a Railway through said tract of land or shall
after construction permanently abandon the route
through said lands the same shall revert to and
become the property of the grantees herein, their
heirs and assigns
In approximately 1927, the rails and ties remaining from the
railroad were removed from this particular piece of land. Later, a
decision by the Interstate Commerce Commission found that the
1
This action is one of several between these parties (and their families) since
2004 with regard to a disputed section of real estate in rural Jasper county. In 2005 this
court affirmed the district court’s conclusion that the Nolins did not have an easement to
use the lane formerly known as “Flora’s Lane” on the south twenty feet of the Tools’
property. See Nolin v. Tool, No. 05-0741 (Iowa Ct. App. Nov. 23, 2005). Later, the
district court granted an injunction filed by the Tools to enjoin the Nolins from the
condemnation of a road through the real estate. See Jasper County Case No.
EQCV113751. In the instant action, this court remanded for a trial on the issues of
adverse possession and boundary by acquiescence. See Tool v. Nolin, No. 07-0813
(Iowa Ct. App. Feb. 27, 2008). Those issues were tried and considered by the district
court, and are now the issues before this court on appeal.
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entire portion of the railroad line running from Reasnor to Monroe
had been formally abandoned.
In 1956, a tax sale regarding this property was held, and
Jasper County bid on it, as was then required. On December 21,
1967, a tax deed was issued to Jasper County. The tax sales deed
recites that that abandoned railroad property was acquired for taxes
owed by the Chicago, Rock Island & Pacific Railroad Company for
the years 1953, 1954, and 1955. In 1972, Jasper County held an
auction and sold its interest in the property to Steve and Linda
Hewitt by way of quitclaim deed. In 2006, Robert Nolin approached
Steve Hewitt to purchase the land. Hewitt agreed to sell it for
$1000 and he provided Nolin with a quitclaim deed.
Tools’ Claim. As noted above, the 1877 deed transferring
the land to the railroad provided for the possibility of title reverting
to the grantees or their assigns should the railroad company
abandon it. The Tools assert they are the assigns of those
grantees. In 1978, the Tools purchased a portion of the disputed
land from the Van Wyngarden family. In 2002, they purchased a
second plot of land from a cousin, Arthur Q. Tool, and his wife.
Later that year, the Tools filed an affidavit of possession concerning
the land.
The Lawsuit. On August 28, 2006, the Tools filed a petition
in equity against the Nolins, asking that title to the disputed property
be quieted in their names. Competing motions for summary
judgment were filed by the parties. Following a hearing on the
motions, the district court ruled in favor of the Tools and quieted
title to the land in their name.
....
We first note that the Tools, who prevailed below, now
concede that the legal ground upon which the district court ruled in
their favor does not actually support its position.
....
The Tools also claimed a right to the land under alternative
grounds. However, the district court did not address the issue of
whether the Nolins’ interest in the land was forfeited either under a
theory of adverse possession or boundary by acquiescence. It
appears factual issues may remain as to these claims, and a trial
may be necessary on them. We therefore remand for further
consideration of these theories.
Tool v. Nolin, No. 07-0813 (Iowa Ct. App. Feb. 27, 2008).
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On remand, the district court determined the Tools had proven title by
adverse possession to the triangle, except the south twenty feet of it.2 The court
dismissed the Tools’ action for slander of title.
The Tools filed a motion to
enlarge or amend findings, which the court denied. This appeal followed.
II. Adverse Possession.
The Tools appeal, contending the court erred in finding they did not
establish title by adverse possession to the south twenty feet of the triangle. The
Nolins cross-appeal, arguing the court erred in finding that the Tools had
established title by adverse possession to any part of the triangle. Our review of
this issue is de novo. Fencl v. City of Harper’s Ferry, 620 N.W.2d 808, 811 (Iowa
2000).
A party seeking to gain 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).
The doctrine of adverse possession is strictly
construed because the law presumes possession is under regular title. Id. Proof
of each of the elements must be “clear and positive.” Id.
In this case, the district court determined the Tools provided clear and
positive proof of its claim of right or color of title to the triangle, except the south
twenty feet. We agree with the court that the Tools established hostile, actual,
open, exclusive, and continuous use of the triangle (except for the south twenty
feet) for farming purposes since at least 1961. The record fully supports the
2
The court issued no finding as to the owner of the south twenty feet. The court
did not find that the Tools had proven title by acquiescence.
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court’s finding. To the court’s analysis, we need only add that the Tools had no
actual knowledge of anyone else claiming title to the triangle north of the south
twenty feet until 2006. The Nolins had a valid tax deed, but the doctrine of
adverse possession presupposes a defective title. Creel v. Hammans, 234 Iowa
532, 534-35, 13 N.W.2d 305, 307 (1944).
We now turn to whether the district court correctly determined that the
Tools did not establish title by adverse possession to the south twenty feet of the
triangle. Our analysis begins and ends with the exclusivity requirement. “[A]
claimant’s possession need not be absolutely exclusive; it need only be of a type
of possession which would characterize an owner’s use.” Huebner v. Kuberski,
387 N.W.2d 144, 146 (Iowa Ct. App.1986) (quoting 2 C.J.S. Adverse Possession
§ 54 (1972)). A “mere casual intrusion by others on property occupied by the
adverse claimant does not deprive his possession of its exclusive character.” Id.
(quoting 2 C.J.S. Adverse Possession § 56 (1972)).
We conclude the Tools’ possession of the south twenty feet was not
exclusive. Up until 2002, the south twenty feet constituted a farm road (formerly
known as Flora’s Lane) that was used by the Tools and other people, including
the Nolins. For many years, the Tools allowed the Nolins to use the road to allow
the Nolins access to their property north of Buck Creek. It was not until 2002 that
the Tools plowed the road and began to use the south twenty feet for farming
purposes. The following exchange of the court’s questioning of plaintiff James
Tool illustrates the Tools’ lack of exclusive possession of the south twenty feet of
the triangle:
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Q. So you didn’t farm the—you didn’t physically put crops
on or anything, the 20-feet strip until 2002 . . . ? A. Yeah.
Q. Is that correct? A. Yes. But I think, as I remember—
Q. Prior to that time, that 20-foot strip was used by other
people? A. Used by myself to farm down there and other people
drove it too.
Q. And that would include Mr. Robert Nolin, the defendant in
this action? A. Yes.
The Tools’ allowance of the public to access the farm road constituting the
south twenty feet prior up until 2002 clearly shows that the Tools’ possession of
this area was not exclusive. Compare Huebner, 387 N.W.2d at 146 (finding
possession exclusive when the only outside use of the property was when the
neighbors’ children climbed a fence to take berries from the property and the
landowner yelled at them) with Marksbury v. State, 322 N.W.2d 281, 287 (Iowa
1982) (determining possession was not exclusive where the public entered the
landowner’s property to picnic and fish in the area).
Because the Tools could not prove exclusive possession of the south
twenty feet, we agree with the district court that the Tools did not prove their
claim of adverse possession with regard to that area. We find it unnecessary to
address the remaining elements of adverse possession with regard to the south
twenty feet of the triangle.
III. Boundary by Acquiescence.
The Tools also contend the court erred in finding they did not establish title
by acquiescence to the south twenty feet of the triangle. We review this issue de
novo. Fencl, 620 N.W.2d at 811 (action tried in equity is reviewed de novo).
The Nolins argue the theory of acquiescence is inapplicable in this case
because the Tools and Nolins are not adjoining landowners. We agree with the
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Nolins. Our supreme court has interpreted the theory of acquiescence under
chapter 650 (2007) to include a requirement that the boundary line be
established between “two adjoining landowners or their predecessors in title . . .
.” Tewes v. Pine Lane Farms, Inc., 522 N.W.2d 801, 806 (Iowa 1994). Here,
although the Nolins and Tools are adjoining landowners of property to the east of
the disputed property, the Nolins do not own land immediately adjacent to the
south twenty feet of the triangle. Nor do the Nolins own land adjacent to any part
of the forty acres that has been subject to prior suits between these parties. We
find no error in the district court’s conclusion that the Tools had not proved title by
acquiescence to the south twenty feet.
IV. Remaining Claims.
The Tools raise further claims on appeal with regard to the statute of
limitations, clean hands, and slander of title. We have thoroughly reviewed the
record, the briefs of the parties, and the ruling of the district court and we find
these issues to be without merit. We have already addressed the Nolins’ claim
on cross appeal in our discussion above with regard to adverse possession.
V. Conclusion.
Having considered the issues raised on appeal and cross-appeal, we
affirm.
AFFIRMED.
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