                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0170
                            Filed December 5, 2018


LAVON M. BROCKMAN,
    Plaintiff-Appellant,

vs.

GLEN R. RUBY and LORI A. RUBY,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.

Kilnoski, Judge.




      LaVon Brockman appeals the dismissal of her equitable action to abate a

private nuisance and establish a drainage easement. AFFIRMED.




      Lloyd R. Bergantzel, Council Bluffs, for appellant.

      Bradford L. Davis, Council Bluffs, for appellees.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

       LaVon Brockman appeals the dismissal of her equitable action to abate a

private nuisance and establish a drainage easement. She contends the district

court erred in concluding a circumstance on adjoining land owned by Glen and Lori

Ruby does not amount to a nuisance and the court failed to consider the easement

issue. Both parties request an award of appellate attorney fees. The Rubys

request an additional award of expert-witness fees incurred in the district court

proceedings.

I.     Background Facts and Proceedings

       Upon our de novo review of the record, we make the following factual

findings. This case involves a dispute between Brockman and her neighbors to

the east, the Rubys. In 1973, Brockman and her husband1 purchased the property

on which Brockman now lives.2 In 2000, the Brockmans purchased an additional

adjoining tract of land that was owned by Mr. Pursell. When the Brockmans

purchased land from Pursell in 2000, Pursell also owned the adjoining land that is

now owned by the Rubys. The Rubys purchased their current property in 2003.3

       According to Brockman’s testimony, her property contained a four-foot-wide

ditch running from her driveway to the east property line, and then the ditch

continued onto what is now the Ruby property. Brockman testified that, in 1973,

the ditch was fifteen to twenty feet deep in the area by her driveway but was only




1
  Mr. Brockman passed away in 2012.
2
  The Brockmans purchased the land on contract. They fulfilled their obligations under
the land contract, and the real property was deeded to them in 1996.
3
  The record indicates Pursell sold the property to a Mr. Kubrick sometime between 2000
and 2003, and then the Rubys purchased the property from Mr. Kubrick in 2003.
                                         3


four or five feet deep in the area near the property line. Brockman testified the

dimensions of the ditch remained constant from 1973 until around 2000, when

Pursell “changed the driveway” on his property. Pursell apparently filled in a

portion of the ditch and built a driveway on top of it. However, this portion of the

ditch already contained a drainage culvert. The record is unclear as to whether

Pursell made any modifications to the culvert when he installed the new driveway.

Brockman testified she did not know if anything was done to the culvert but

acknowledged Pursell “would have put in a tube similar to or maybe that same

tube that runs under the Rubys’ driveway.”

        Shortly after the Rubys purchased their property in 2003, Brockman and her

husband complained about the culvert underneath the Rubys’ driveway being too

small and causing water to back up on the Brockman property. The Brockmans

asked the Rubys to lower the culvert. Mr. Ruby responded that water was flowing

through the culvert adequately. Mr. Ruby has never noticed any water backing up

on the Brockman property from his culvert. No evidence was presented that the

area flowing into or out of the Ruby culvert has ever flooded or overflowed such

that it would spill over onto the Brockman property. Over the years, Mr. Brockman

and Mr. Ruby engaged in several conversations about the culvert under the Rubys’

driveway. Brockman testified that, since Pursell changed the driveway on the east

property, the ditch on her property started “filling in.”    Brockman claims the

driveway reconstruction is the cause of her nuisance complaints—that her property

is sometimes “wet” and she “cannot mow” because her mower “gets stuck in the

mud.”
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       However, Brockman did not mow the “wet” spots on her property in the past

because, until at least 1998, those areas were occupied by trees. The Brockmans

consented to removal of those trees sometime between 1998 and 2002.

Furthermore, the wet spots on Brockman’s property are located in the lowest point

of the property, and all of the runoff from her property and other higher areas

around that property gravitates to the area where the wet spots are located. With

that runoff comes silt, which settles into the ditch and low corner of Brockman’s

property. Brockman has never engaged in measures to maintain the integrity of

the ditch on her property, such as clean it out, remove vegetation, or install a tile.

The Brockman property includes a natural spring near the complained-of wetland.

Sometimes the spring is wet, sometimes it is dry.

       Brockman’s expert, a general contractor of several years with experience in

installing and supervising the installation of culverts, testified to his opinion that the

placement of the culvert under the Ruby driveway and the level of the Rubys’

connected retention pond causes a backflow of water onto the Brockman property.

However, he also testified Brockman’s ditch has collected sediment from erosion

and that the inflow of sediment from erosion in these “old country ditches” is

constant and usual. He also testified to his belief that when Pursell modified the

driveway on the east property, he moved the culvert further north, which prevented

the sediment from properly flowing from the Brockman ditch. However, historical

mapping data indisputably shows that the course of the waterway has not been

altered since at least the 1930s.

       Mr. Ruby took several videos of the complained-of wetland area. The

footage shows water from the Brockman property properly flows through the
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culvert under the Ruby driveway, into the adjacent retention pond, and over the

spillway on the other side of the pond. The Rubys’ expert has bachelor’s and

master’s degrees in civil engineering and specializes in water resources in

environmental engineering and hydrology. A 2017 wetland assessment of the

Brockman property conducted by the Rubys’ expert found the complained-of wet

area had an elevation of 1109.8 feet, while the Rubys’ retention pond had a lower

elevation of 1106.7 feet. Due to the difference in elevation, the expert testified the

retention pond could not be the cause of the moist conditions on the Brockman

property. Upon his assessment, the expert “determined that the wetland areas on

the [Brockman] property are a direct result of the adjacent groundwater spring-fed

stream, and that said wetlands have been present on the [Brockman] property

dating back to the 1930’s.” The expert also determined the removal of “several

large trees” on the Brockman property, “documented to be more than 70-years old,

has significantly reduced the groundwater uptake occurring in th[e] east wetland

area, therefore resulting in more groundwater seepage coming to the land

surface.” The assessment continued, “[I]t can be definitively stated that the east

wetland area has a nearly 100-year long documented history of being saturated

well prior to the installation of the retention pond and driveway culvert on [Rubys’]

property.”

       In November 2016, Brockman filed a “petition to abate nuisance and for

damages,” alleging the Rubys or the predecessors in interest constructed and

maintained a nuisance that obstructs a natural waterway resulting in devaluation

and diminishment of Brockman’s land. In September 2017, Brockman moved to

amend her petition to add causes of action relating to easements by prescription,
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necessity, and implication. The district court granted the motion. Brockman filed

her amended petition, which additionally requested the court to establish and

enforce an easement by prescription, necessity, or implication. On January 9,

2018, following a bench trial, the district court concluded Brockman failed to prove

by a preponderance of the evidence that the complained-of circumstance

amounted to a nuisance to Brockman’s property. The court dismissed Brockman’s

petition. The court’s ruling did not address the easement issue. On January 14,

the Rubys filed a motion to enlarge or amend asking the court to consider their

request for awards of attorney and expert-witness fees. On January 24, while said

motion was pending, Brockman filed a notice of appeal. On February 1, the court

denied the Rubys’ request for attorney fees but partially granted their request for

expert-witness fees.

II.    Standard of Review

       Our review of this equitable proceeding is de novo. See Iowa R. App. P.

6.907; Braverman v. Eicher, 238 N.W.2d 331, 334 (Iowa 1976); Helmkamp v. Clark

Ready Mix Co., 214 N.W.2d 126, 127–28 (Iowa 1974). We give deference to the

factual findings of the district court, especially when considering the credibility of

witnesses, but we are not bound by them. Iowa R. App. P 6.904(3)(g).

III.   Analysis

       A.     Easement—Preservation of Error

       Brockman’s amended petition added causes of action relating to easements

by prescription, necessity, and implication. In its ruling dismissing the petition, the

district court did not address the easement claims. On appeal, Brockman argues

the court erred in not finding an easement should be established. Brockman
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acknowledges the district court “failed to address easements” but believes error

was preserved on the merits of her easement claims “by timely filing a notice of

appeal with this court.”

       The Rubys do not contest error preservation on the easement claims, but

we do. See, e.g., State v. Bergmann, 633 N.W.2d 328, 332 (Iowa 2001) (“Although

the State concedes that error has been preserved . . . , we disagree.”); Top of Iowa

Co-op v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“In view of the range

of interests protected by our error preservation rules, this court will consider on

appeal whether error was preserved despite the opposing party’s omission in not

raising this issue at trial or on appeal.”). The filing of a “notice of appeal has nothing

to do with error preservation.” Thomas A. Mayes & Anuradha Vaitheswaran, Error

Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake

L. Rev. 39, 48 (2006). Rather, “[w]hen a district court fails to rule on an issue

properly raised by a party, the party who raised the issue must file a motion

[pursuant to Iowa Rule of Civil Procedure 1.904(2)] requesting a ruling in order to

preserve error for appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

       Here, the district court failed to rule on the easement claims and Brockman

filed her notice of appeal without filing a motion requesting a ruling on the claims.

Error was not preserved. We therefore decline to consider the issue.

       B.      Nuisance

       A nuisance is a condition that “is injurious to health, indecent, or

unreasonably offensive to the senses, or an obstruction to the free use of property,

so as essentially to interfere unreasonably with the comfortable enjoyment of life

or property.” Iowa Code § 657.1(1) (2016). Civil actions “may be brought to enjoin
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and abate [a] nuisance and to recover damages sustained on account of the

nuisance.”    Id.   The burden of proof is on the plaintiff “to establish by a

preponderance of evidence the existence of a defendant created nuisance which

was a proximate cause of resultant damages to person or property as alleged.”

Kriener v. Turkey Valley Cmty. Sch. Dist., 212 N.W.2d 526, 532 (Iowa 1973);

accord Build-A-Rama, Inc. v. Peck, 475 N.W.2d 225, 229 (Iowa Ct. App. 1991).

       This was a classic battle of the experts case, with Brockman’s expert

opining circumstances on the Ruby property caused the presence of a wetland on

the Brockman property, and the Rubys’ expert opining the wetland is a historical

circumstance that was exacerbated by a natural spring, the removal of trees, and

ill maintenance of the drainage ditch on the part of Brockman. “When a case

evolves into a battle of experts, we, as the reviewing court, readily defer to the

district court’s judgment as it is in a better position to weigh the credibility of the

witnesses.” State v. Jacobs, 607 N.W.2d 679, 685 (Iowa 2000). Here the district

court implicitly found the Rubys’ expert’s opinion to be more credible in light of all

of the evidence presented. Upon our de novo review, we agree. In any event, the

evidence presented simply fails to show that a condition on the Ruby property,

whether it be the culvert placement or the attached retention pond, was the cause

of the wet conditions on the Brockman property. Instead, we find it more likely

than not that the wet conditions resulted from the historical existence of a natural

spring, topographical makeup of the Brockman property, removal of several trees,

and lack of maintenance or improvements as to the drainage ditch.

       Upon our de novo review of the record, and affording great deference to the

district court’s factual findings, we agree with the district court that Brockman failed
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to meet her burden to prove a nuisance. We therefore affirm the denial of her

petition.

        C.    Appellate Attorney Fees

        Both parties request an award of appellate attorney fees.         “Generally,

attorney fees are recoverable only by statute or under a contract.” Miller v. Rohling,

720 N.W.2d 562, 573 (Iowa 2006). Here, there is no contract between the parties

authorizing an award of attorney fees, and “Iowa’s statutory nuisance law—Iowa

Code chapter 657—makes no provision for the recovery of attorney fees” in the

district court or on appeal. Id. Neither party contends the other has acted in bad

faith, vexatiously, wantonly, or for oppressive reasons. See id. We therefore deny

each party’s request.

        D.    Expert Witness Fees

        The Rubys request that we increase the district court’s award of expert-

witness fees incurred in the district court proceedings. The Rubys did not file a

notice of appeal or cross-appeal of the court’s ruling on its request for expert

witness fees. We therefore have no jurisdiction over the request and dismiss it.

See In re Marriage of Davis, 608 N.W.2d 766, 773 (Iowa 2000); Hulsing v. Iowa

Nat’l Mut. Ins. Co., 329 N.W.2d 5, 7 (Iowa 1983).

IV.     Conclusion

        We affirm the denial of Brockman’s petition, deny the parties’ requests for

appellate attorney fees, and deny the Rubys’ request for additional expert-witness

fees.

        AFFIRMED.
