                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0613
                                Filed June 5, 2019

GENE L. FRANKLIN and CONNIE JOHNSON, EXECUTORS OF THE FAE
BLACK ESTATE; GENE L. FRANKLIN, CONNIE JOHNSON, CURTIS L.
FRANKLIN, JULIE PEDRICK, BRUCE FRANKLIN, and GREOGRY S.
FRANKLIN,
    Plaintiffs-Appellees/Cross-Appellants,

vs.

MICHAEL JOHNSTON, ELIZABETH JOHNSTON, STEVE JOHNSTON, and
JUDITH YEAGER,
     Defendants-Appellants/Cross-Appellees,

and

KASONDRA JOHNSTON and JAMES YEAGER,
     Defendants.
________________________________________________________________


      Appeal from the Iowa District Court for Van Buren County, Randy S.

DeGeest, Judge.



      The defendants appeal the district court’s ruling of a prescriptive easement.

The plaintiffs cross-appeal the district court’s dimensions of said easement.

AFFIRMED ON APPEAL; REVERSED ON CROSS-APPEAL.



      Lucas C. Helling (until withdrawal) and Vanessa M. Y. Willman (until

withdrawal) of Foss, Kuiken & Cochran, P.C., Fairfield, for appellants.

      Michael C. Vance of Vance Law Office, Mt. Pleasant, for appellees.



      Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.
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VOGEL, Chief Judge.

       Michael (Mike) Johnston, Elizabeth Johnston, Steve Johnston, and Judith

Yeager (the Johnstons) appeal, and Gene Franklin and Connie Johnson (the

Franklins) cross-appeal, the district court’s ruling following a remand from our

court. See Franklin v. Johnston, No. 15-2047, 2017 WL 1086205, at *13–14 (Iowa

Ct. App. Mar. 22, 2017). The Johnstons and the Franklins are owners of adjacent

property. After years of litigation, both at the district court and appellate court

levels, the parties again appeal, asserting the district court’s ruling on the

Johnstons’ dock and shoreline area was incorrect. The Johnstons assert they

should have been granted fee simple ownership of the disputed area rather than

a prescriptive easement, and the Franklins claim the district court should have

included restrictions for the size and location of the dock and the width of the

shoreline. We affirm the district court’s grant of a prescriptive easement but order

the boundaries of the easement area be limited to the dimensions requested by

the Franklins.

   I. Background Facts and Proceedings

       Otto and Pauline Estle, the Johnstons’ predecessors in title, decided to

construct a lake, and their neighbors, James and Fae Franklin, granted them a

“perpetual easement” to overflow onto their land. The agreement was executed in

April 1962 with James and Fae Franklin granting

       a perpetual easement for the right to occasion overflow by water from
       the land of the [Estles] to and on and over the lands of [James and
       Fae Franklin] such as would be occasioned by the construction of a
       dam not to exceed forty (40) feet in height in a ditch located on the
       land of the [Estles] which ditch traverses the property of [James and
       Fae Franklin], and [the Estles] are hereby granted the perpetual right
       to erect and maintain such dam and thereby occasion an overflow of
                                              3


       water onto and over such portion of [James and Fae Franklin’s] land
       as may be occasioned by the construction of said dam . . . .

The agreement goes on to stipulate each parties’ rights and restrictions. The

Estles’ and the Franklins’ successors in interest are the current parties to this

action—the plaintiffs-appellees, the Franklins, and the defendants-appellants, the

Johnstons.1

       The Franklins brought suit in May 2013, after the Johnstons prohibited them

from using any part of the lake covering the Johnstons’ land. Trial was held on

September 15, 16, 17, 20, and 22, 2015. On November 5, 2015, the district court

made several findings, but pertinent to this appeal were findings that both parties

may use the entire lake for fishing and any other lawful purpose and that the

boundary line was the fence on the north side of the lake. The Johnstons appealed

to our court, and the Franklins cross-appealed.

       In the March 2017 opinion, our court stated,

       We . . . agree with the district court’s conclusion that the Franklins
       have proven a prescriptive easement to use the entire lake. We
       affirm the district court’s rejection of the Johnstons’ claim of a
       boundary by acquiescence through and on the south side of the lake
       due to the lack of clear evidence to support the claim . . . .
               . . . . However, we remand this matter to the district court so
       that it may expand its decision with respect to the shoreline and dock
       near Mike Johnston’s property. On remand the parties may offer to
       the district court evidence and legal argument to support their claim
       for the proper designation of this property.          However, Mike
       Johnston’s use of this dock should never impede the Franklins’
       prescriptive easement to use the entire lake.

Franklin, 2017 WL 1086205, at *14.




1
 More details as to the chain of title to both properties and the history of the various family
members’ use of the entire lake can be found in our opinion from the first appeal. See
Franklin, 2017 WL 1086205, at *1–3.
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       On remand, the district court determined the Johnstons had “clearly

established an easement by prescription for the land described . . . as Auditor’s

Parcel ‘P.’”2 The Johnstons appeal, arguing the district court should have granted

them fee simple ownership of Parcel “P.” The Franklins cross-appeal, asking our

court to confine the dimensions of Parcel “P.”3

    II. Standard of Review

       Both parties agree this matter was heard in equity, so our review is de novo.

Passehl Estate v. Passehl, 712 N.W.2d 408, 414 (Iowa 2006) (“Because this

matter was tried by the district court wholly in equity, we review this appeal de

novo.”).

    III. Fee Simple Title

       A. Compliance with 2017 Court of Appeals Opinion

       The Johnstons argue the district court should have granted them fee simple

ownership in the dock and shoreline area near Mike Johnston’s home, Parcel “P,”

because our 2017 opinion required such a finding. The Franklins claim the district

court’s ruling complied with our 2017 opinion because the language did not specify

the property designation.

       Our 2017 opinion stated,

              There is a dearth of evidence in the record about the size,
       location, condition, and history of the shoreline and dock that exists

2
   Parcel “P” is a parcel identified by a surveyor hired by the Johnstons prior to trial.
3
   The Johnstons filed a motion to stay submission on April 22, 2019. The Franklins filed
a resistance on April 23, and we denied said motion on April 25. On May 15, the Johnstons
filed another motion requesting the submission be stayed, to which the Franklins filed
another resistance on May 20, adding a request for sanctions. The Johnstons filed a
response to the Franklins’ resistance on May 27. On May 31, the Franklins filed a reply
to the Johnstons’ resistance to the Franklins’ motion to strike the Johnstons’ motion for
stay along with another request for sanctions. We again deny the Johnstons’ request and
decline to impose any sanctions.
                                          5


        near Mike Johnston’s property on the north side of the lake.
        However, this is understandable because it was the district court’s
        decision, ending the boundary by acquiescence at the southernmost
        fence post and then running the property line due east until it
        intersects with the deed line, that created the [parties’] current
        dispute over the use of this shoreline and dock. In order to prevent
        further future litigation over this shoreline and dock, we remand this
        case to the district court so that it may expand its ruling as to the
        boundary line north of the lake so that the shoreline and dock near
        Mike Johnston’s house remain part of Mike Johnston’s property. The
        parties may offer evidence and legal argument to the district court as
        to the proper designation of this piece of property. However the
        parties and the district court resolve the language, the size and
        location of the dock should never impede the prescriptive easement
        of the Franklins to access and enjoy the Johnstons’ side of the lake
        as described above.

Franklin, 2017 WL 1086205, at *13. This language instructs the district court on

remand to consider evidence presented by both parties and ultimately determine

the “proper designation of [the] piece of property.” Id. Therefore, we find the

district court’s ruling complied with our 2017 opinion.

        B. Adverse-Possession and Boundary-by-Acquiescence Claims

        Next, the Johnstons assert their claims of adverse possession and

boundary by acquiescence were sufficiently proved by the evidence in the record,

and therefore, the district court should have awarded them fee simple ownership

of the shoreline and dock area within Parcel “P.” However, in its 2018 ruling, the

district court found “granting the Johnstons a fee simple ownership in Parcel ‘P’

[was] not supported by the evidence, nor [was] it conducive to avoiding future

litigation.”   Instead, the district court found “[t]he Johnstons [had] clearly

established an easement by prescription for the land described . . . as Parcel ‘P.’”

        After the ruling was entered, the Johnstons moved to enlarge or amend the

ruling. First, they requested the district court amend their pleadings to include a
                                         6


claim of adverse possession, arguing evidence at trial supported this claim.

However, the district court declined to enlarge its ruling and noted,

       The basic premise upon which this Court determined that each party
       had a reciprocal easement to use and enjoy the lake was that the
       use was not an exclusive use. Each party could use all of the lake
       for recreational purposes, and each party from time to time has used
       most all of the lake. The [Johnstons’] claim of adverse possession
       fails to establish their exclusive use of Parcel “P,” and fails to
       establish a claim of right necessary to establish adverse possession.
       The [Johnstons’] claim to Parcel “P” is found by the Court to be one
       of use of the parcel, not a claim of fee simple ownership.

The Johnstons’ motion also requested the district court reconsider their claim of

boundary by acquiescence, arguing it did not properly acknowledge the

“overwhelming” testimonial evidence indicating the fence north of the lake was

extended through the lake to the south at one time. In response, the district court

found the evidence “was insufficient to establish by a preponderance of the

evidence that a boundary by acquiescence was established.” It further stated,

“There simply was not enough proof brought forth by the [Johnstons], and therefore

the Court declines to find a fence running into the lake established a boundary by

acquiescence.”

       First, “[t]o establish title by adverse possession, one must prove open,

exclusive, continuous, actual and hostile possession under claim of right or color

of title for at least [ten] years.” Council Bluffs Sav. Bank v. Simmons, 243 N.W.2d

634, 636 (Iowa 1976). While “[w]e consider principles of adverse possession when

determining whether an easement by prescription has been created,” the two are

not the same. Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001). “Under Iowa

law, an easement by prescription is created when a person uses another’s land

under a claim of right or color of title, openly, notoriously, continuously, and
                                           7

hostilely for ten years or more.” Id. An “easement by prescription concerns the

use of property and adverse possession determines acquisition of title to property

by possession.” Id.

       In the findings of fact, the district court noted “the specific conduct of the

Johnstons over the [fifty] years the lake has been in existence, including building

and maintaining the dock, support their claim of right to the shoreline and lake

surrounding the dock and that their claim was hostile and a claim of right.” The

Johnstons assert they have maintained a dock and made improvements to it for

over thirty years, and therefore, have established the exclusivity element of

adverse possession for the dock as well as the shoreline. However, at the hearing,

members of the Franklin family testified they used the entire shoreline for many

years without the need to ask the Johnstons for permission. In their testimonies,

Gene and Curtis Franklin acknowledged the dock was considered Mike Johnston’s

property and the Franklin family did not use it.

       Based on the record, we agree with the district court and find the grant of a

prescriptive easement is an appropriate designation of the dock and shoreline area

near Mike Johnston’s home. The evidence before us does not warrant a grant of

fee simple ownership, and as the district court noted, such grant would not prevent

future litigation. Therefore, we affirm the district court’s rejection of the Johnstons’

adverse-possession claim.

       Next, the Johnstons argue the district court should have granted them a fee

simple ownership of the dock and shoreline area because they successfully

established their boundary-by-acquiescence claim. Specifically, the Johnstons

claim the district court failed to properly consider the credible testimony provided
                                        8


by the Johnstons and by Ray Lehn, a Department of Natural Resources District

Forester. The Franklins claim the 2015 district court ruling “absolutely govern[s]”

this claim. They argue that ruling, which our court affirmed in part, “determined

absolutely no acquiescence boundary was proven in order to convey to [the

Johnstons] title to any land included in the [Franklins’] deed title south of the

southern fence post terminus of the north side acquiescence boundary.”

      In our 2017 opinion, we affirmed the district court’s rejection of the

Johnstons’ boundary-by-acquiescence claim and stated,

      [W]e agree with the district court that the evidence was far from clear
      that the Franklins or their predecessor in title knew of the existence
      of a mowed path, knew the mowed path was the claimed boundary
      line and did nothing, and that those two conditions existed for ten
      years.

Franklin, 2017 WL 1086205, at *11. Moreover, in the district court’s ruling on the

Johnstons’ motion to enlarge or amend, the district court stated,

             The [Johnstons] . . . request[] the Court to Enlarge and
      Amend its findings to establish a temporary fence that at some times
      extended into the lake to prohibit cattle from going into the water and
      going on to the neighbor’s property establish a boundary by
      acquiescence. The Court finds that the evidence of a temporary
      fence running into the water was insufficient to establish by a
      preponderance of the evidence that a boundary by acquiescence
      was established. There simply was not enough proof brought forth
      by the [Johnstons], and therefore the Court declines to find a fence
      running into the lake established a boundary by acquiescence.

      While the Johnstons argue their testimony alone established their

boundary-by-acquiescence claim, the district court was able to hear the testimony

and determine the credibility of each witness.      “Our courts have repeatedly

recognized that while in cases of equity the reviewing court is not bound by the

fact findings of the trial court, factual disputes which depend heavily on the
                                             9


credibility of witnesses are best resolved by the trial court which has a better

opportunity to evaluate credibility.” Hartford-Carlisle Sav. Bank v. Shivers, 552

N.W.2d 909, 911 (Iowa Ct. App. 1996). Thus, we defer to the district court’s

credibility findings and find the record on appeal does not warrant disruption of

those findings. Therefore, we affirm the district court’s second rejection of the

Johnstons’ claim of boundary by acquiescence.4

    IV. Specificity of Johnston’s Dock Dimensions and Shoreline

       In 2015, the district court found “that south of the lake and under the lake,

the deed line is the legal boundary before the parties.” The district court concluded

and ordered “the legal boundary of the parties commence[] at the southernmost

fence post of the fence line north of the lake . . . and run[] due east to a point that

intersects with the deed line.” In 2018, the district court found the Johnstons “may

construct and maintain a dock of their choosing so long as it lies entirely within

Auditor’s Parcel ‘P’.”5

       On cross-appeal, the Franklins request we redraft the boundaries of Parcel

“P” by shortening the distance from 87.95 feet to sixty-seven feet. Additionally,

they request we reduce the east-to-west line from 74.68 feet on the north and 78.92

feet on the south to twenty feet for each. They assert an approximate seventy-

five-foot width is excessive because the record clearly shows the Johnstons’


4
  The Johnstons also ask us to overturn the district court’s ruling on the Franklins’ motion
to enlarge or amend, if we grant the Johnstons a fee simple ownership. Since we decline
to do so, we affirm the amendment to the district court’s ruling to clarify the grant of a
prescriptive easement.
5
  Parcel “P” extends the acquiesced fence line, north of the lake, to a point 87.95 feet
south of what the district court determined to be the end point of “the southernmost fence
post.” The southern east-to-west line measures 78.92 feet and intersects with the legal
deed line to the east. The northern east-to-west line measures 74.68 feet and also
intersects with the legal deed line to the east.
                                         10


docks, both present and past, have never exceeded five feet in width. Such

reduction would also minimize any interference with the Franklins’ right to use the

entire lake, as was directed in our 2017 opinion, that “the size and location of [Mike

Johnston’s] dock should never impede the prescriptive easement of the Franklins

to access and enjoy the Johnstons’ side of the lake.” Franklin, 2017 WL 1086205,

at *13. Twenty feet of shoreline is ample area to allow access from the Johnston

property to the dock. We agree with the Franklins’ proposal, and on our de novo

review, we order the boundaries of Parcel “P” be changed accordingly. If another

survey is required to set said boundaries, the Franklins shall bear that expense.

   V. Conclusion

       We conclude the district court appropriately granted the Johnstons a

prescriptive easement in the dock and shoreline.         Additionally, we order the

boundaries of such easement be changed to conform to the Franklins’ requested

specifications.

       AFFIRMED ON APPEAL; REVERSED ON CROSS-APPEAL.
