                      IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1192
                               Filed April 30, 2014


MARY ANN SLYCORD,
    Plaintiff-Appellee,

vs.

AUDREY J. GARRETT and BOBBY
DEAN MARTIN, asTrustee of MMM TRUST,
     Defendants-Appellants.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Annette J.

Scieszinski, Judge.



      The appellants appeal from a declaratory-judgment ruling determining the

parties’ rights and responsibilities to a strip of land located between properties

owned by the appellants and the appellee. AFFIRMED.



      Matthew G. Sease of Kemp & Sease, Des Moines, for appellants.

      Rick L. Lynch and Ashley M. Leyda of Lynch Law Office, Bloomfield, for

appellee.



      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
                                         2


DOYLE, J.

       This case involves a fifteen-foot strip of real property located between

property owned by plaintiff Mary Ann Slycord and properties owned by

defendants Audrey J. Garrett and Bobby Dean Martin, trustee of MMM Trust.




       After disputes arose concerning Slycord’s use of the strip as a driveway to

access her property, Slycord filed a petition in district court seeking a declaratory

judgment as to the parties’ rights and responsibilities in relation to the property.

Following a bench trial, the district court entered its ruling determining (1) the

strip of land was a public road and not owned by Martin; (2) Slycord had a right to

the non-exclusive use of an easement over that road; (3) Martin was liable for

damages to the road and Slycord’s property; and (4) Martin was permanently

enjoined from harassing Slycord concerning the road in the future. Upon our de
                                             3


novo review of the record, we agree with the district court’s declarations and

affirm its ruling.

       I. Background Facts and Proceedings.

       The first plat concerning the relevant properties was recorded in 1900.

The plat sub-divided the northwest quarter of the northwest quarter of section 13

into seven lots. However, the plat did not contain any markings of roadways

between the lots, other than a highway running through Lot 7 and to the east of

Lots 1 through 6.

       Another plat for this area was drawn up in 1906 and recorded in 1909.

This plat sub-divided the land into more lots, and it included areas for roadways

between certain lots. At issue here is the strip of land designated for a roadway

located south of Lots of 5 and 6 and north of Lot 10, as pictured above.1 This

plat was still the existing plat of the area at the time of trial.

       In 1948, a dispute arose between prior landowners that used this road.2

At that time, Lots 5 and 6 in section 13 were owned by James and Betty Holder.

The owners of Lots 1 and 4 of section 14, Bigna, Donald, Ruth, and Kenneth

Peterson, also used the road to access their lots. The Holders told the Petersons

they were going to fence off the road, and the Petersons filed suit to quiet title to

ensure their access to and use of the road. The Holders never responded to the

suit, and a default judgment was later entered by the district court. The court’s

decree stated, in relevant part:

       1
          A roadway between those lots was never built by the county; however, the
adjoining landowners used the strip of land as a road to access their lots.
        2
          For the sake of clarity in this opinion, we refer to the lots in the northwest
quarter of the northwest quarter of section 13 as “section 13” lots and the lots in the
northeast quarter of the northeast quarter of section 14 as “section 14” lots.
                                        4


      [T]he court finds that the [Holders] have voluntarily disclaimed [any]
      right, title or interest in the driveway lane fifteen feet in width
      running from the “Caldwell Hill” road in a westerly direction at a
      location immediately south and adjacent to auditors Lots number 5
      and 6 in the northwest quarter of the northwest quarter of section
      13, township 72 north, range 14 west, and extending to the property
      of plaintiffs as described in the petition. That [the Holders] have
      voluntarily opened said driveway lane and are not in any manner
      obstructing the same. That [the Petersons], by reason of the open,
      notorious, continued use of said driveway lane for over forty years,
      are entitled to have the continued future use thereof for travel,
      quieted and established in the [Petersons] and all future owners of
      auditors Lots 1 and Lot 4 in the northeast quarter of the northeast
      quarter of section 14, township 72 north, range 14 west in Wapello
      County, Iowa.

      In approximately 1982, defendant Audrey Garrett purchased Lot 10 in

section 13 and Lot 1 in section 14. Defendant Bobby Martin began living with

Garrett at her home on Lot 10, and at the time of trial, the couple had resided

there for approximately twenty-five years.     In July 2010, Garrett transferred

ownership of Lot 1 to Martin as trustee of the MMM Trust. The lot is landlocked

without use of the disputed road.

      In May 2010, plaintiff Mary Ann Slycord purchased section 13 Lots 4, 5,

and 6 from the Holders. To access her lots, she used the disputed road, as the

Holders did before her. There is no other road or driveway available for Slycord

to access her lots, and Lot 6 is completely land-locked.

      After Slycord bought the property, Martin made numerous claims of

ownership to the road. A month after Slycord moved in, Martin prevented a

serviceman that had used the road to access Slycord’s property from leaving the

property by blocking the serviceman’s vehicle in with a tractor. Martin refused to

move his tractor until the county sheriff was called to the scene. Martin also

blocked in other visitors to Slycord’s home. Later, Martin made changes to the
                                          5


road, including cutting up an area in the back part of the road leaving a trench,

leaving Slycord unable to access her back property. Martin also dumped gravel

on the road, causing the road to rise about a foot and making it uneven with

Slycord’s yard, as well as causing gravel to go into Slycord’s yard.

       In September 2012, Slycord filed suit seeking a declaratory judgment as to

her and Martin’s rights to use the road, along with Martin’s right to “maintain” the

road. A bench trial was held in May 2013, and the deputy auditor testified that

after she researched the plats, she determined the disputed road was not owned

by anyone.     She also testified that neither the current nor the prior owners

abutting the road paid taxes on the property. Both Slycord and Martin offered

surveyors’ opinions concerning the strip of land, and essentially, both surveyors

agreed that the road was not owned by anyone.

       Slycord testified that Martin harassed her and her guests, along with

“destroying” the road and placing gravel on part of her lawn. She requested the

court declare that Martin and Garrett have no right, title, or interest in the

roadway to deny her access to the road and her property, and she sought Martin

be enjoined from denying her access and from further altering the road.

Additionally, she requested Martin be ordered to return the road to its prior

condition.

       Martin and Garrett testified. They believed the Holders’ had lost any and

all of their rights, claims, and title to the road by way of the 1948 court ruling, and

they asserted the ruling transferred those rights, claims, and title to the

Petersons, the owners of section 14, Lot 1. Because Martin was now the owner

of that lot, he maintained he was the owner of the roadway. Martin testified the
                                               6


road was only intended to serve as driveway for that lot. Additionally, Martin

denied damaging the road, though he admitted some gravel went over the bank

into Slycord’s ditch. He also testified he took an area of the road out that was

“giving [him] trouble” but had planned to put a tile in for water drainage.

        Thereafter, the district court entered a declaratory judgment finding in

favor of Slycord. The court found Slycord “demonstrated by a preponderance of

the credible evidence that the road at issue is a public one, not privately owned

or controlled by Martin or anyone else.” The court also concluded Martin altered

the road without the right to do so and for an improper purpose, damaging

Slycord in the process. The court ordered that Martin, at his expense, restore

Slycord’s property rights, including fixing the road and removing gravel from her

yard.   Finally, the court determined Martin had been harassing Slycord and

ordered a permanent injunction be issued by the county clerk of court “to protect

Slycord from future harassment by Martin.”

        Martin and Garrett now appeal.3




        3
          Visualization of the subject matter of a land or property dispute is critical to a full
understanding of the dispute. Plat maps, aerial photographs, photographs, and
drawings are routinely used as trial exhibits to aid the finder of fact. Color is commonly
employed in these exhibits to clearly delineate boundaries and ownership of lands, and
witnesses testifying at trial typically refer to “this color parcel” or “that color line.” When
appearing in an appendix on appeal, all too often these peacock-colored models of
clarity have been transformed into illegible black-and-white head-scratchers. Such is the
case here. It is frustrating to an appellate judge to read transcript testimony referring to
colors while at the same time looking at black-and-white reproductions in the appendix.
To be sure, the original trial exhibits are typically available to this court—but not readily
available to those judges who office outside Des Moines. While we are cognizant of the
fact that color reproductions in the appendix are more expensive than black-and-white
copies, it would be helpful to the court if litigants would at least include in the appendix
color copies of those exhibits most critical to understanding the dispute. The
implementation of EDMS may resolve this commonly observed phenomenon—but that
remains to be seen.
                                         7


       II. Scope and Standards of Review.

       “Our review of actions for declaratory judgment depends upon how the

action was tried to the district court.” City of Riverdale v. Diercks, 806 N.W.2d

643, 651 (Iowa 2011). Because this action was filed and tried in equity, our

review is de novo. See Orr v. Mortvedt, 735 N.W.2d 610, 613 (Iowa 2007); see

also Iowa R. App. P. 6.907. We examine all the facts and the law to decide the

issues anew. Brede v. Koop, 706 N.W.2d 824, 826 (Iowa 2005). “Thus, we are

not bound by the trial court’s findings of fact, but give them weight in our decision

because of the trial court’s opportunity to view the evidence and witnesses

firsthand.” Kolb v. City of Storm Lake, 736 N.W.2d 546, 553 (Iowa 2007).

       III. Discussion.

       On appeal, Martin and Garrett contend the district court erred in finding

Martin did not own the road, in determining Slycord also had an easement right

to access her property via the road, and, alternatively, in ordering Martin to repair

the road at his sole expense. We address their arguments in turn.

       A. Ownership.

       Martin and Garrett contend, as they did at trial, the 1948 court ruling

transferred any and all rights to the road held by the then landowners, the

Holders, to the other landowners, the Petersons. Because Martin is now in the

Petersons’ position, Martin and Garrett maintain the ruling transferred the

Petersons’ “ownership rights” to him as the future owner of their lot. In support of

their argument, Martin and Garrett emphasize the court’s use of the following

language in its ruling: “That [the Petersons], by reason of the open, notorious,

continued use of said driveway lane for over forty years, are entitled to have the
                                        8


continued future use thereof . . . .” (Emphasis added.) Because the terms “open,

notorious, and continued use” are general elements of adverse possession, see,

e.g., C.H. Moore Trust Estate v. City of Storm Lake, 423 N.W.2d 13, 15 (Iowa

1988), and adverse possession transfers ownership rights, see Nichols v. City of

Evansdale, 687 N.W.2d 562, 568 (Iowa 2004), Martin and Garrett insist the court

intended to transfer ownership rights from the Holders to the Petersons for the

Petersons exclusive use. We disagree.

      To be sure, Martin and Garrett correctly point out those terms are

essential elements in establishing adverse possession.       Nevertheless, those

terms are also the elements for establishing a prescriptive easement, which “is

akin to adverse possession.”     Id.   Like adverse possession, a prescriptive

easement “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.” Brede, 706 N.W.2d at 828 (citation and internal quotation marks omitted).

However, instead of acquiring title to the property, which occurs where adverse

possession is established, the putative easement-holder acquires only “the right

to legally use the property.” Nichols, 687 N.W.2d. at 568 (emphasis added); see

also 3 Am. Jur. 2d Adverse Possession § 8, at 93-94 (2002) (stating the principal

difference between adverse possession and prescription is the right acquired: full

title to the property and an easement, respectively). Prescriptive easements, and

the elements to establish such, are not new concepts; indeed, even prior to the

1948 ruling, our supreme court has looked at the elements of adverse

possession in determining whether an easement for use existed.         See, e.g.,

Chicago, M., St. P. & P.R. Co. v. Cross, 234 N.W. 569, 572 (Iowa 1931) (“[I]t is
                                        9


quite apparent from the record that the appellee is not entitled to an easement or

passageway at the place in question by reason of adverse possession.”); Culver

v. Converse, 224 N.W. 834, 836 (Iowa 1929) (citing Iowa Code § 10175

(1927): “In all actions hereafter brought, in which title to any easement in real

estate shall be claimed by virtue of adverse possession . . . .”); Heinrich v.

Schmitt, 181 N.W. 407, 407 (Iowa 1921) (finding the district court did not err in

restraining the defendants from interfering with the plaintiffs’ use of a right-of-

way, where the plaintiffs’ “grantors and themselves [had] been in the

uninterrupted, open, notorious, and adverse possession, use, and occupancy,

under claim of right to use the same, with knowledge and consent of

defendants”); see also Webb v. Arterburn, 67 N.W.2d 504, 513 (Iowa 1954)

(“Consequently if plaintiffs have the roadway easement which they claim, it must

be an easement by prescription, or, as otherwise stated, by adverse possession,

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

hostilely asserted against defendants for ten years or more.”); Consol. Sch. Dist.

of Ellsworth v. Thompson, 189 N.W. 803, 805 (1922) (explaining the difference

between adverse possession and easement by adverse possession).

      Upon our de novo review, we agree with the district court that the 1948

ruling merely established the Petersons’ right to a prescriptive easement to use

the road. Not only do the terms in the 1948 ruling “open, notorious, continued

use” correspond with the elements of a prescriptive easement, the context of the

terms within the ruling support a finding of only a prescriptive easement.

(Emphasis added.) The court’s ruling first states the Holders “voluntarily opened

said driveway lane.”    The ruling does not find the Holders abandoned the
                                          10


driveway or that the Petersons had the exclusive possession of the road for the

requisite period of time necessary to establish a claim of adverse possession.

See C.H. Moore Trust Estate, 423 N.W.2d at 15; Thompson, 189 N.W. at 805.

Further, the court’s next sentence declares that the Petersons were “entitled to

have the continued future use thereof for travel.” The ruling did not grant the

Petersons any greater right than the use of the road for travel. For all these

reasons, we conclude the 1948 ruling did not transfer any ownership rights of the

road such that Martin is now the owner of the road. We therefore affirm on this

issue.

         B. Easement.

         Martin and Garrett again argue that Slycord did not have an easement

interest in the road because the 1948 ruling extinguished the prior titleholders’

rights. However, having found their interpretation of the 1948 ruling incorrect,

their argument again fails here for the same reasons. Accordingly, we affirm on

this issue.

         C. Repair Damages and Injunctive Relief.

         Finally, Martin and Garrett alternatively contend that if we find Martin was

not the owner of the road, he “maintained the driveway in a very good condition”

and any repair work necessary to maintain Slycord’s easement should be paid

for by her, or at the minimum, shared between the parties. Additionally, Martin

and Garrett argue the court’s injunction is contrary to Iowa law because it would

prohibit them from ever making repairs and does not set forth Slycord’s

responsibility to contribute. We disagree.
                                       11


      We recognize “[i]t is a well settled principle in Iowa law when property

owners commonly use private roads as ways of necessity, all of those owners

should be required to contribute equally to the maintenance of those roads.”

Brentwood Subdivision Rd. Ass’n, Inc. v. Cooper, 461 N.W.2d 340, 342 (Iowa Ct.

App. 1990). However, it is also “true that neither party to an easement may

interfere with the rights of the other.” Krogh v. Clark, 213 N.W.2d 503, 506 (Iowa

1973). When an easement holder is merely using or maintaining the easement

and is not hindering the use of the other easement holder, such maintenance and

use is permissible. See, Brede, 706 N.W.2d at 826 (finding “[t]he occasional

placement of gravel and grading simply ensured that the driveway would be

passable and hence, usable” was permissible and did not establish prescriptive

rights); Krogh, 213 N.W.2d at 506 (finding defendant easement holders “could

rightfully remove the [obstructions which deprived them of full use and enjoyment

of their easement, without damages to the plaintiff], as long as they did no more

than was necessary for that purpose and as long as they could accomplish it

without breach of the peace”); see also James W. Ely, Jr. & Jon W. Bruce, The

Law of Easements & Licenses in Land § 8:35 (2014) (“co-holders of a roadway

easement have been permitted to alter the landscape in order to improve

vehicular passage so long as the rights of the other co-holders are not

infringed.”). However, a common easement holder generally

      may not park on a right-of-way in such a manner as to obstruct the
      use by others, or expand the use of a common driveway to include
      residents of a nearby subdivision, or place wheel blocks on a
      common right-of-way, or erect a fence across a roadway easement,
      or construct a ramp in a common driveway. Likewise, one
      easement holder’s installation of speed bumps on a roadway
      easement may interfere with the right of other easement holders to
                                         12


       use the road. Moreover, . . . one easement holder encroached on
       the property of the other holder by erecting a retaining wall
       unrelated to the enjoyment of the easement within the easement
       area. . . . Nor can a common easement holder in a mutual roadway
       easement for ingress and egress overburden the easement by use
       of all-terrain and off-road vehicles.

James W. Ely, Jr. & Jon W. Bruce, The Law of Easements & Licenses in Land

§ 8:35 (internal footnotes omitted). As one treatise notes:

              Interference with an easement is a form of trespass.
       Consequently, an easement holder is entitled to equitable relief
       against a servient owner’s unlawful interference with the easement
       holder’s enjoyment of the servitude, particularly when the
       obstruction is of a permanent character. Courts frequently enjoin
       the obstruction of an easement and order the removal of
       encroaching structures at the servient owner’s expense. The fact
       that such removal may be costly is not ordinarily a
       consideration. . . .
              A court of equity, however, may balance the relative
       hardships of the parties and refuse an injunction when the expense
       of removing an innocent encroachment would be disproportionate
       to the injury suffered by the easement holder. Likewise, a court
       may impose equitable restrictions on the easement holder as a
       condition of granting relief from interference. Moreover, it has been
       suggested that in an appropriate situation, a court might compel the
       easement holder to contribute part of the cost of removing an
       innocent encroachment.          Further, courts occasionally deny
       injunctive relief on the ground that monetary damages constitute an
       adequate remedy for the easement holder.

Id. § 8:32 (internal footnotes omitted) (emphasis added).

       Here, the district court clearly found Slycord more credible than Martin and

Garrett as to the condition of the road. Although Martin asserts he merely made

repairs to maintain the road, Slycord testified to the contrary, stating his “repairs”

interfered with her use of the road.          We rely upon the court’s credibility

determinations, having witnessed the testimony firsthand, and we further

conclude upon our review of the evidence that the driveway is not in the condition

Martin and Garrett assert. Because the road was not merely “repaired” and an
                                          13


innocent encroachment, but rather it was damaged by Martin going out of his

way to alter the road to Slycord’s detriment, Martin must solely restore it to its

former condition. See id.; see also Schwartz v. Grossman, 173 N.W.2d 57, 60

(Iowa 1969) (upholding a trial court’s order directing defendants to restore

conditions to the status existing prior to such wrongful conduct because the

defendants’ acts made the plaintiff’s easement useless); Nixon v. Welch, 24

N.W.2d 476, 481 (Iowa 1946) (requiring a county to bear the cost of repairing a

culvert it destroyed). Additionally, because of Martin’s purposeful interference

with Slycord’s use of the easement, the court did not err in enjoining Martin from

further altering the road. See Schwartz, 173 N.W.2d at 61 (Iowa 1969) (holding

trial court properly enjoined defendants where defendants willfully and

substantially violated “plaintiff’s right to the free and unobstructed use of the alley

in question” and the defendants did “not intend to discontinue their interference

with and obstruction of the easement area unless compelled to do so”).

       Sometime down the road, when repairs to and maintenance of the road is

necessary, the property owners who use the road should share those costs. See

Brentwood Subdivision Rd. Ass’n, Inc., 461 N.W.2d at 342. Because neither

Martin and Slycord own the road but both use the road, both are “entitled to

repair the easement so long as [he or she] does not: [f]irst, interfere with the right

of [other] thus to do; and, second, render the private way less convenient or

useful for the latter’s purposes.” Bina v. Bina, 239 N.W. 68, 71 (Iowa 1931).

However, neither, “in improving the common way, must in any way disturb the

improvement thereon made or being made by the other.” Id. An apportionment

of costs for the repairs and maintenance is appropriate if the benefit of those
                                        14

repairs and maintenance is unequal. See id. (holding a sixty-forty percentage

apportionment of costs appropriate where the road’s use by the parties was

roughly a sixty-forty split). We find the following language from the Arizona Court

of Appeals helpful in fashioning how costs should be apportioned here:

              [E]ach party’s contribution should be based on an equitable
      apportionment determined after consideration of various relevant
      factors, which may include but are not limited to each party’s
      proportionate use of the easement, including the amount and
      intensity of actual use, and the benefits derived therefrom; whether
      each party received proper notice and a reasonable opportunity to
      participate in the decisions regarding repairs and maintenance;
      whether the completed work was reasonable and necessary;
      whether the repairs and maintenance were performed adequately,
      properly, and at a reasonable price; the value of any other
      contributions (monetary or in kind) by the parties to repairs and
      maintenance; and any other factors that may be deemed relevant.

Freeman v. Sorchych, 245 P.3d 927, 935-36 (Ariz. Ct. App. 2011). The property

owners should work together in maintaining and sharing costs of the repairs.

When in doubt, it is always better to take the high road and talk to your neighbor

about proposed repairs and each person’s contribution to costs.

      IV. Conclusion.

      For the foregoing reasons, we affirm the district court’s declaratory-

judgment ruling in all respects. Costs on appeal are assessed to the appellants.

      AFFIRMED.
