                  IN THE COURT OF APPEALS OF IOWA

                             No. 3-1198 / 12-1966
                             Filed March 26, 2014


GLORIA HUTCHINS,
    Plaintiff-Appellee/Cross-Appellant,

vs.

LARRY HUTCHINS, Substituted for WILBUR HUTCHINS,
     Defendant-Appellant/Cross-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.



      Wilbur Hutchins appeals the district court’s ruling in favor of Gloria

Hutchins in this adverse possession action. AFFIRMED.



      Valerie Cramer for Cramer Law, P.L.C., Des Moines, for appellant.

      Max Burkey, Des Moines, for appellee.



      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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POTTERFIELD, P.J.

       Wilbur Hutchins appeals,1 challenging the district court’s ruling in favor of

Gloria Hutchins in this adverse possession action.2 He asserts Gloria Hutchins

failed to prove the requisites of an adverse possession claim. We affirm.

       I. Background Facts and Proceedings.

       In 1977, Joy and Wilbur Hutchins purchased 10.339 acres of land at

12300 64th Street, Elkhart, Iowa.

       In 1987, Joy and Wilbur Hutchins invited their son, Michael; his wife,

Gloria; and the couple’s daughter to move onto the Elkhart property and build a

home. Gloria and Michael established their residence—a manufactured home3

—on the Elkhart acreage in 1987, where they resided from then on.

       From 1987 and on, Gloria and Michael treated the approximately three

acres of the Elkhart acreage as their own. Gloria and Michael planted a large

fenced garden and orchard, erected a two and one-half car garage, poured

cement sidewalks and a garage apron, and, beginning in 1999, paid real estate

taxes. Electricity to the home is independent. Gloria and Michael, however,

shared a driveway with Joy and Wilbur, and their water came from a well shared

1
   Wilbur Hutchins died while this action was pending. Larry Hutchins’s motion to
substitute party was granted by this court on March 5, 2014. For ease of reference we
will continue to refer to the defendant as Wilbur Hutchins.
2
  Though Gloria filed a cross-appeal, she does not raise any independent challenge to
the court’s ruling. Rather, she asserts this court could affirm on alternate grounds,
contending she also proved her claim under Iowa Code chapter 650 (2011) (disputed
corners and boundaries), which was raised in count IV of her amended petition. The
district court did not address the chapter 650 claim and Gloria did not seek a ruling on
the claim. “If the court does not rule on an issue and neither party files a motion
requesting the district court to do so, there is nothing before us to review.” Stammeyer
v. Div. of Narcotics Enforcement of Iowa Dep’t of Pub. Safety, 721 N.W.2d 541, 548
(Iowa 2006). Therefore, we do not address the cross-appeal.
3
  In his appellate brief, Wilbur denies Gloria had a home built on the property, stating “it
was a moveable trailer.”
                                           3


with Joy and Wilbur. Following Michael’s death in 2005, Gloria continued to

reside on and maintain the three acres and residence.

       On June 21, 2011, Gloria was served with a notice to quit tenancy.

       On July 5, 2011, Gloria filed a petition to quiet title to the three acres by

virtue of adverse possession.        She sought and was granted a temporary

restraining order delaying her eviction.       In an amended petition, Gloria also

sought a prescriptive easement for continued use of the existing shared driveway

and well, and alleged the boundaries of her property were established by

acquiescence.4

       Following a trial, the district court ruled in favor of Gloria and ordered that

title to tax parcel 210-00502-004-000 and locally known as 12300 NE 64th

Street, Elkhart, be quieted in favor of Gloria Hutchins. In a ruling on Gloria’s

motion to enlarge or amend, the court also granted an easement by prescription

for use of the driveway leading to her property and for use of the well.5 The court

found the easements run with the land.

       Wilbur Hutchins6 appeals, contending (1) the district court erred in “finding

plaintiff obtained title to the property by adverse possession”; (2) the plaintiff


4
  The trial court docket indicates the plaintiffs consented to the amendment on June 28,
2012, and the district court allowed the amendment on July 11, 2012.
5
  Iowa Code section 564.1, relating to easements, provides:
                In all actions hereafter brought, in which title to any easement in
        real estate shall be claimed by virtue of adverse possession thereof for
        the period of ten years, the use of the same shall not be admitted as
        evidence that the party claimed the easement as the party’s right, but the
        fact of adverse possession shall be established by evidence distinct from
        and independent of its use, and that the party against whom the claim is
        made had express notice thereof; and these provisions shall apply to
        public as well as private claims.
6
  Both Joy Hutchins and Wilbur Hutchins died while this action was pending. Their son,
Larry Hutchins, was substituted as appellant. See Iowa Code § 611.20 (“All causes of
                                             4


“failed to prove the hostile element of adverse possession, which negates

adverse possession”; (3) the district court erred in “raising the issue the

defendant gave title to the land to the plaintiff”; (4) the court erred “when it found

plaintiff and her husband had no duty to tell the defendants of their claim to the

title of the property”; (5) the “only proof of ownership . . . was the plaintiff’s self

serving oral testimony”; (6) the court erred in finding the plaintiff acted as a true

owner; (7) “the district court abused its discretion by not only making substantial

factual errors in the final order[, b]ut also in misquoting supreme court cases as

the law”: (8) the court erred “when it believed the statements made by the plaintiff

were true”; (9) the court erred in “grant[ing] a prescriptive easement against

plaintiff’s [sic] land by adverse possession when the possession was not

exclusive or hostile”; and (10) the court erred when it found that there was a

transfer of land title “absent any writing to that effect or any evidence of a transfer

of land.”

       II. Scope and Standard of Review.

       This matter was tried in equity; consequently, our review is de novo. Iowa

R. App. P. 6.907. We give weight to the trial court’s fact findings, especially

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

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

action shall survive and may be brought notwithstanding the death of the person entitled
or liable to the same.”); Id. § 625A.17 (“The death of one or all of the parties shall not
cause the proceedings to abate, but the names of the proper persons shall be
substituted, as is provided in such cases in the district court, and the case may
proceed.”); Iowa R. App. P. 6.109(3) (“If substitution of a party is sought for any reason,
. . . the person seeking substitution must file a motion for substitution of party with the
clerk of the supreme court.”). Gloria’s resistance to the motion to substitute requests this
court order the opening of an estate for Wilbur Hutchins. We affirm the district court,
maintaining the status quo. Gloria’s request for additional relief should be directed to the
district court following issuance of procedendo.
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       III. Discussion.

       The court determined Gloria proved her claim of adverse possession

under a claim of right. A party invoking the adverse possession doctrine “must

establish hostile, actual,[7] 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.

       “A claim of right is evidenced by taking and maintaining property, such as

an owner of that type of property would, to the exclusion of the true owner; in

other words, the plaintiff’s conduct must clearly indicate ownership.”         Louisa

Cnty. Conservation Bd. v. Malone, 778 N.W.2d 204, 207 (Iowa Ct. App. 2009).

       Wilbur’s several issues on appeal essentially boil down to one—because

Gloria came to the property with permission, her possession and use can never

satisfy the “hostile” element of either adverse possession or prescriptive

easement.8 We disagree.

       “Hostility of possession does not imply ill will, but only an assertion of

ownership by declarations or acts showing a claim of exclusive right to the land.”

Johnson, 637 N.W.2d at 178 (citing 3 Am. Jur. 2d Adverse Possession § 50, at


7
  “Actual possession is the type of possession or control owners ordinarily exercise in
holding, managing and caring for property of like nature and condition.” Burgess v.
Leverett & Assocs., 105 N.W.2d 703, 706 (Iowa 1960).
8
  In Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001), the supreme court observed:
                We consider principles of adverse possession when determining
        whether an easement by prescription has been created. However, the
        concepts of adverse possession and easement by prescription are not
        one and the same. Rather, easement by prescription concerns the use of
        property and adverse possession determines acquisition of title to
        property by possession.
(Citations omitted.)
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143 (1986)). Conduct that shows an intention to hold title exclusive of others

shows hostile possession. Burgess, 105 N.W.2d at 706. In order to show hostile

possession, a plaintiff must demonstrate conduct showing the “intention to hold

title exclusive to all other titles or against the world.” Id. The Iowa Supreme

Court has stated, “It is enough if the person . . . takes and maintains such

possession and exercises such open dominion as ordinarily marks the conduct of

owners in general, in holding, managing, and caring for property of like nature

and condition.” See C.H. Moore Trust, 423 N.W.2d at 15 (citation omitted). And

“[a]lthough ‘mere use’ is insufficient to establish hostility or claim of right, certain

acts, including substantial maintenance and improvement of the land, can

support a claim of ownership and hostility to the true owner.”           Malone, 778

N.W.2d at 208.

       We initially observe the district court found Gloria “to be credible in her

testimony.” We give deference to the court’s finding as it was in a better position

to assess her credibility. See Neimann v. Butterfield, 551 N.W.2d 652, 654 (Iowa

Ct. App. 1996) (“We are keenly aware of the trial court’s superior vantage point to

make credibility determinations due to its ability to consider firsthand the

demeanor and appearance of the parties.”).

       Upon our de novo review, we agree with the district court Gloria

established such substantial maintenance and improvement of the land so as to

establish hostile possession; that is, she proved her “intention to hold title

exclusive to all other titles or against the world.” Burgess, 105 N.W.2d at 706.

She and Michael constructed a home on the property and planted an orchard.

They enclosed a large garden with fencing. They built a two and one-half car
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garage on a cement pad and poured cement sidewalks leading to their home.

They built two decks surrounding the home and planted other trees. Gloria (and

Michael) exclusively maintained the home and three acres. Beginning in 1999,

Gloria has paid property taxes.

       Wilbur argues the district court improperly injected the concept that the

property was gifted to Gloria and Michael when the plaintiff did not make that

claim. This reads too much into the district court’s ruling. The court did not enter

its ruling on the basis the property was a gift. Rather, the court considered the

testimony of the witnesses—which included some testimony that Wilbur may

have intended to gift the property—and found Gloria “entered the premises under

a good faith belief she had a legal claim to the property” and “with the

understanding she was the true owner.” Those findings are pertinent to the claim

that Gloria possessed the property under a claim of right. See Council Bluffs

Sav. Bank v. Simmons, 243 N.W.2d 634, 636 (Iowa 1976) (discussing

possession under claim of right); see also Carpenter v. Ruperto, 315 N.W.2d

782, 786 (Iowa 1982) (noting good faith claim of right is essential to adverse

possession claim).

       With respect to the district court’s ruling concerning prescriptive

easements, in addition to challenging the “hostility” of Gloria’s possession, Wilbur

argues Gloria’s shared use of the driveway and well were not exclusive. “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

hostilely for ten years or more.” Johnson, 637 N.W.2d at 178. But, “use need
                                        8

not be exclusive.” Id. at 179. “Rather, a claimant’s possession ‘need only be of a

type of possession which would characterize an owner’s use.’” Id.

      We conclude there is clear evidence supporting the trial court’s findings of

adverse possession and prescriptive easement. We therefore affirm.

      AFFIRMED.
