                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3025
                         ___________________________

                         Quality Ag Service of Iowa, Inc.

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

Burlington Northern and Santa Fe Railway; BNSF Railway Company; Burlington
Northern and Santa Fe Railway Company; Burlington Northern Railroad Company

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                          Submitted: September 22, 2015
                             Filed: October 30, 2015
                                 ____________

Before MURPHY, MELLOY, and SMITH, Circuit Judges.
                          ____________

MURPHY, Circuit Judge.

      The question in this appeal is which party owns a particular sidetrack in
Melrose, Iowa. The sidetrack is adjacent to two railroad tracks belonging to
Burlington Northern Santa Fe Railway ("BNSF") and also to the property of Quality
Ag Service of Iowa ("Quality Ag"). Quality Ag contends that it owns the sidetrack
by means of adverse possession due to its continuous possession of the sidetrack from
August 25, 2000 to August 25, 2010. BNSF has stored equipment on the sidetrack
since one of its trains derailed near it on August 3, 2010.

      Quality Ag alleges that BNSF has breached an agreement between the parties.
BNSF's motion for summary judgment was granted by the district court1 after it
concluded that the adverse possession claim by Quality Ag was insufficiently pled,
that BNSF owns the sidetrack, and that the agreement alleged by Quality Ag lacked
consideration. On Quality Ag’s appeal we conclude that its claim of adverse
possession fails since it did not exclusively possess the sidetrack for at least ten years.

        BNSF owns two railroad tracks that run through Melrose, Iowa. In 1994 it sold
a parcel of land adjacent to its railroad tracks in Melrose to Farmers Cooperative
Association ("Farmers Coop"). The sale did not include an adjoining sidetrack used
to divert railroad traffic off the main tracks. Farmers Coop sold its parcel to Quality
Ag on August 25, 2000, and Quality Ag has since used the sidetrack to receive
fertilizer deliveries. Its president and owner, Joseph Sinclair, testified at his
deposition that a representative of Farmers Coop told him that at the time of the sale
the purchased property included the sidetrack. Thus, from August 25, 2000 until at
least 2012, its president assumed that Quality Ag owned the sidetrack. Sinclair also
testified that shortly after Quality Ag’s purchase from Farmers Coop it entered into
an agreement permitting BNSF to use the sidetrack if BNSF maintained it. Quality
Ag was unable to produce this alleged written agreement.

       On August 3, 2010 a BNSF train derailed one hundred yards east of the
sidetrack. Since then the railroad has kept equipment on the sidetrack, preventing
Quality Ag from using the track. As a result fertilizer deliveries to Quality Ag must
be made by truck at increased cost, and Quality Ag filed this action against BNSF.


      1
      The Honorable John A. Jarvey, United States District Court Judge for the
Southern District of Iowa.

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Count I, which has since been dismissed, sought damages due to increased delivery
costs and property damage resulting from the derailment. Count II alleges that BNSF
has failed to maintain the sidetrack in violation of its contract with Quality Ag.

       Although BNSF produced a land survey during discovery which shows it as the
owner of the sidetrack, Quality Ag responds that it is the owner because of its adverse
possession. The district court granted summary judgment to BNSF on Count II. The
court ruled that BNSF owned the sidetrack and that Quality Ag could not prevail on
its adverse possession theory because it had not been pled in its complaint. The court
also concluded that the maintenance agreement lacked consideration because it
simply allowed BNSF the right to use its own property. Quality Ag appeals.

       We review a district court's grant of summary judgment de novo, "viewing all
evidence and drawing all reasonable inferences in favor of the nonmoving party."
Jones v. Frost, 770 F.3d 1183, 1185 (8th Cir. 2014). Summary judgment is
appropriate "when there is no genuine dispute of material fact and the prevailing party
is entitled to judgment as a matter of law." Id.

       Quality Ag argues that it owns the sidetrack pursuant to adverse possession and
that the district court erred in concluding that it had not properly pled that theory. We
need not analyze whether Quality Ag’s adverse possession claim was properly pled
because it fails as a matter of law. In order to gain title by adverse possession, one
"must establish hostile, actual, open, exclusive and continuous possession, under a
claim of right or color of title, for at least ten years, by clear and positive proof."
Carpenter v. Ruperto, 315 N.W.2d 782, 784 (Iowa 1982). The exclusive possession
element is not met if the landowner and the potential adverse possessor both occupy
the land during that ten year period. Huebner v. Kuberski, 387 N.W.2d 144, 147
(Iowa Ct. App. 1986). In order to prevail here, Quality Ag must prove adverse
possession for the period between August 25, 2000 and August 25, 2010. Since



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BNSF began occupying the sidetrack after the derailment on August 3, 2010, Quality
Ag cannot establish its adverse possession claim.

       The alleged maintenance agreement between the parties must be supported by
consideration requiring either a benefit to the promisor or a detriment to the promisee.
See Margeson v. Artis, 776 N.W.2d 652, 655 (Iowa 2009). Since Quality Ag has not
shown that it owns the sidetrack, its breach of contract claim also fails. The judgment
of the district court is affirmed.
                          ______________________________




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