                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0172
                               Filed March 9, 2016


GREGORY S. KOETHER,
d/b/a KOETHER RANCH, L.L.C.,
       Plaintiffs-Appellees,

vs.

GWENDOLYN ELLIOTT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clayton County, John J.

Bauercamper, Judge.



      Gwendolyn Elliott appeals the district court’s ruling quieting title to land in

favor of Gregory Koether by way of adverse possession.           REVERSED AND

REMANDED.




      Elisabeth S. Reynoldson of Reynoldson & Van Werden, L.L.P., Osceola,

and Richard L. Wilson of Richard L. Wilson, P.C., Lenox, for appellant.

      Matthew W. Boleyn of Reynolds & Kenline, L.L.P., Dubuque, for

appellees.



      Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                               2


MULLINS, Judge.

          Gwendolyn Elliott appeals the district court’s ruling quieting title to land in

favor of Gregory Koether by way of adverse possession.                    We reverse and

remand.

          I.     Background Facts and Proceedings

          Gwendolyn and Gregory are siblings, the only children of Eddie and

Eleanore Koether. Eddie died in 2000,1 and Eleanore died in January 2004.2

Prior to the deaths of Eddie and Eleanore, Gregory farmed with his father and

utilized the outbuildings located on Lot 17, the land in dispute, in the joint farming

operation.

          Gwendolyn and Gregory served as co-executors of Eleanore’s estate. On

August 1, 2006, Eleanore’s estate conveyed Lot 17 to Gwendolyn in fee simple

absolute by way of a court officer’s deed signed by both Gwendolyn and Gregory

as co-executors. Gwendolyn recorded the deed on September 18, 2006. At the


1
    Under Eddie’s will, title to all properties owned by Eddie passed to his wife, Eleanore.
2
    Eleanore’s will was executed on December 19, 2003, and provided in pertinent part:
                                          ARTICLE THREE
                 1.        I give all of my pasture and tillable farm land to Gregory S.
         Koether and Kathleen K. Koether.
                 2.        I give all of my forest/timber land to be divided equally
         between Gwendolyn J. Elliott and Gregory S. Koether.
                 3.        I give Gregory S. Koether the rental house legally
         described as follows:
                 Southwest Quarter of the Northeast Quarter in Section 26,
                 Township 95 North of Range 4, Clayton County, Iowa.
                           I give Gwendolyn Elliott the family house legally described
         as follows:
                 Lot Seventeen (17), Block Two (2), in the Village of Giard,
                 Clayton County Iowa.
                 The property will be conveyed to each party set forth above
         subject to the parties sharing a roadway/driveway easement and sharing
         the well jointly. The easement for the driveway and well shall be
         perpetual. The parties shall share equally any maintenance or repair
         costs for the well and for the driveway.
                                            3


time of the conveyance, Gwendolyn and Kathleen Koether, Gregory’s ex-wife,

knew Lot 17 included the outbuildings but did not know its exact boundaries.

Gregory testified at trial that he believed he was only conveying the family house

to Gwendolyn when he signed the court officer’s deed. On March 23, 2012,

Gwendolyn had the lot surveyed and subsequently evicted Gregory.

         On October 22, 2013, Gregory filed a petition in equity to quiet title to Lot

17, excluding the family house, which he conceded belonged to Gwendolyn. On

September 24, 2014, the district court held a trial in the matter. On December 9,

2014, the district court granted Gregory’s petition to quiet title to “all of the

pasture and tillable farm land located” on Lot 17 and determined Gwendolyn to

be the owner of the family house located there. The district court did not address

the ownership of the outbuildings located on Lot 17 in its written ruling.        On

December 22, 2014, Gwendolyn filed a motion to enlarge, amend, or modify the

court’s findings of fact and conclusions of law pursuant to rule 1.904(2),

requesting that the district court modify its ruling and find that Gregory did not

hold any portion of Lot 17 adversely to Gwendolyn.                The district court

subsequently denied the motion. Gwendolyn appeals.

         II.       Scope and Standard of Review

         Our review of this quiet title action, a matter tried in equity, is de novo.

Iowa R. App. P. 6.907; Garrett v. Huster, 684 N.W.2d 250, 253 (Iowa 2004). We

have the responsibility to examine the facts as well as the law and decide anew

the issues properly preserved. Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa

2001).         We give weight to the district court’s fact findings, especially when
                                          4


considering the credibility of witnesses, but we are not bound by them. Iowa R.

App. P. 6.904(3)(g).

         III.   Analysis

         A party invoking the adverse possession doctrine “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. (quoting Carpenter v. Ruperto, 315 N.W.2d 782, 784 (Iowa 1982)).

Because the law presumes possession under regular title, the doctrine of

adverse possession is strictly construed. Id.

         Adverse possession may be established by either “color of title” or “claim

of right.” Id. at 16; see also Council Bluffs Sav. Bank v. Simmons, 243 N.W.2d

634, 636 (Iowa 1976). Color of title means “that which in appearance is title but

in reality is no title.” Grosvenor v. Olson, 199 N.W.2d 50, 52 (Iowa 1972). “To

constitute color of title there must be a paper or record title of some kind . . . .”

Goulding v. Shonquist, 141 N.W. 24, 25 (Iowa 1913). Gregory did not have color

of title to Lot 17 because he did not have a deed to the land. We now turn to the

element of claim of right.

         Claim of right has often been used interchangeably with color of title. Id.

Claim of right does not require a writing, Council Bluffs Sav. Bank, 243 N.W.2d at

636, but instead requires a person to use land “openly and notoriously, as

owners of similar lands use their property, to the exclusion of the true owner.”

I-80 Assocs., Inc. v. Chi., Rock Island & Pac. R.R. Co., 224 N.W.2d 8, 11 (Iowa

1974).      Also encompassed within this element is a good-faith requirement.
                                          5

Carpenter, 315 N.W.2d at 786. Good faith can be established by acts that clearly

indicate the possessor claimed title:

       The actual occupation, use, and improvement of the premises by
       the claimant, as if he were in fact the owner thereof without
       payment of rent or recognition of title in another or disavowal of title
       in himself, will be sufficient to raise the presumption of his entry and
       holding as absolute owner and, unless rebutted, will establish the
       fact of a claim of right.

Council Bluffs Sav. Bank, 243 N.W.2d at 636 (citation omitted).             However,

ownership cannot be acquired by claim of right by one who knows he does not

have good title. See Carpenter, 315 N.W.2d at 785. When knowledge of lack of

title is accompanied by knowledge of no basis for claiming an interest in that

property, a good-faith claim cannot be established. Id. at 785–86.

       Gwendolyn claims Gregory failed to prove the elements of adverse

possession because he did not have open, exclusive, continuous, actual and

hostile possession of the land for a period of ten years. She contends Gregory’s

occupation of the outbuildings on Lot 17 ended in August 2012, when she served

him notice that she was terminating his tenancy, and thus, any occupation of the

land by Gregory had to have begun in August 2002 at the latest. Gwendolyn

asserts, however, that Gregory made no claim of ownership to the land during

the life of their parents, and that he actually acknowledged his use of the property

was pursuant to an oral lease with their parents that ended when their mother

died in 2004.

       Gregory responds that he did assert a claim of ownership while their

parents were living and has held all of the pasture and tillable farm land

adversely to Gwendolyn and their parents. He contends he has owned the land
                                             6


in question since the 1980s—when he started rotational grazing on the land for

cattle, sheep, and goats—and cannot recall a discussion with either of their

parents regarding his tenancy on the land. He further asserts his improvements

to the land are proof of his claim of ownership because they show that he held

the land openly and that his claim was hostile to their parents’ ownership.3

       Gregory testified at trial that he farmed with his father until his father’s

death in 2000. After Eddie’s death, the property passed to Eleanore, and she

owned the whole of Lot 17 until her death in January 2004. In his answers to

interrogatories, Gregory stated that he utilized the outbuildings on Lot 17



3
  Gregory alternatively claims that if this court finds he did not establish the elements of
adverse possession by clear and positive proof, he is entitled to the land under equitable
principles. He asserts that pursuant to Eleanore’s will, he was bequeathed all of the
“pasture and tillable farm land,” which includes portions of Lot 17, while Gwendolyn only
received the family house, which is situated on Lot 17. He contends, “Essentially, the
land in dispute was devised to [him] all along by way of Article Three, paragraph 1” of
Eleanore’s will, and “that intention was not appropriately carried out when the Court
Officer’s Deed [conveying Lot 17 to Gwendolyn] was executed.” Thus, he argues,
Gwendolyn will inequitably and unjustly benefit from the error of the deed’s draftsman,
as he has used and improved the land for over three decades while Gwendolyn has
lived in Kansas. He claims neither he nor Gwendolyn signed the 2006 deed conveying
Lot 17 to Gwendolyn “with a correct understanding as to what portion of land was
actually being conveyed to the two of them.” He asserts neither party intended for him to
be excluded from the land at issue.
         Gwendolyn responds that Gregory did not plead his undefined claim for general
relief at any time and the district court did not rule on it. See Lamasters v. State, 821
N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that
issues must ordinarily be both raised and decided by the district court before we will
decide them on appeal.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)).
She further contends Gregory has failed to cite any authority in his brief to this court in
support of his claim, and therefore, it must be waived. See Iowa R. App. P.
6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed waiver of
that issue.”). We determine Gregory’s sole claim in this quiet title action was based
upon a theory of adverse possession, and at no time prior to reaching this court did he
move to amend his pleadings or otherwise plead in the alternative that he was entitled to
the land under equitable principles. Because Gregory never pleaded other relief in this
case and the district court did not rule on any such claim, the claim is not preserved for
our review. See Lamasters, 821 N.W.2d at 862. Furthermore, Gregory has failed to cite
any authority in support of his claim or arguments on appeal and has thus waived this
issue. See Iowa R. App. P. 6.903(2)(g)(3).
                                            7


pursuant to an oral lease with his parents while they were alive, but during

testimony at trial, he claimed some ownership interest since he was a child.4

Kathleen also testified Koether Ranch, L.L.C. utilized the outbuildings pursuant to

a verbal agreement with Eddie and Eleanore. On our de novo review, we find

Gregory’s claim of ownership is not supported by clear and positive proof and

conclude that because Gregory occupied the land with the permission and

consent of his parents, he cannot claim his adverse possession of the land

started before his mother’s death in 2004. See Council Bluffs Sav. Bank, 243

N.W.2d at 636 (noting that when property is used with the permission of its

owners, the use can never ripen into title by adverse possession). Accordingly,

Gregory did not hold the property adversely to Gwendolyn for a sufficient period

of time to obtain title by adverse possession.

       Additionally, in 2006, Gwendolyn and Gregory, as co-executors of their

mother’s estate, deeded Lot 17 to Gwendolyn. Gwendolyn testified she knew Lot

17 extended into the barnyard and covered some of the outbuildings but did not

know the extent of its boundaries until she had the survey conducted in 2012.

Gregory acknowledged that when he and Kathleen formed Koether Ranch,

L.L.C. in early 2005, they transferred all of their land into the L.L.C. but did not

transfer Lot 17.     Kathleen, as co-owner of Koether Ranch, L.L.C. and its

registered agent, testified that Gregory did not list Lot 17 as an asset in their

2013 dissolution proceeding. Kathleen also stated she knew she and Gregory

4
  In his answers to interrogatories, Gregory stated his father was his landlord, the lease
was oral with informal terms and conditions, and that he paid varied compensation for
the lease. At trial, however, Gregory testified these statements were incorrect because
he thought he had owned the South half of Lot 17, where the outbuildings are located,
since he was a child.
                                               8


did not own any interest in Lot 17 because of the deed Gregory and Gwendolyn

signed in 2006. Kathleen stated she knew the 2006 deed conveyed more than

just the family home to Gwendolyn because otherwise the easement granted in

Eleanore’s will requiring the parties to share a common driveway and a well

would not have been necessary.

       Finally, the record shows Gwendolyn has paid all property taxes for Lot 17

since it was conveyed to her in 2006. See id. at 638 (finding that whoever pays

the property taxes in an adverse possession action “is a circumstance to be

considered, [but] it alone cannot establish title by adverse possession”); Meyers

v. Canutt, 46 N.W.2d 72, 76 (Iowa 1951) (noting “[p]ayment of taxes is evidence

of good faith” by the person seeking adverse possession). Gwendolyn has also

maintained liability insurance for the whole of Lot 17.

       In 2012, Gwendolyn served Gregory with a notice to quit and a notice of

termination of farm tenancy. Even if Gregory could establish he had occupied

any portion of Lot 17 hostilely, actually, openly, exclusively, and continuously, he

cannot establish that he has done so for the requisite ten-year period.

Accordingly, we reverse and remand for entry of an order denying and dismissing

Gregory’s petition to quiet title to Lot 17.

       REVERSED AND REMANDED.
