                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1761
                            Filed December 5, 2018


DOUG JASTER and ELIZABETH JASTER,
    Plaintiffs-Appellees,

vs.

CITY OF GARBER,
      Defendant-Appellant.
________________________________________________________________


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

Bauercamper, Judge.



      The City of Garber seeks reversal of the district court decision granting

ownership rights over three adjoining sections of disputed property to Doug and

Elizabeth Jaster. AFFIRMED.




      James A. Garrett of James A. Garrett Law Office, Waukon, for appellant.

      Daniel J. McClean of McClean & Heavens Law Offices, Dyersville, and

Eashaan Vajpeyi and Max E. Kirk of Ball, Kirk & Holm, PC, Waterloo, for appellees.




      Heard by Tabor, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

         The City of Garber seeks reversal of the district court decision granting

ownership rights over three adjoining sections of disputed property to Doug and

Elizabeth Jaster.    We find the Jasters have presented clear and convincing

evidence the City was equitably estopped from asserting a claim on the property.

We affirm the district court.

         I.    Background Facts & Proceedings

         In 1873, the City of East Elkport was platted in Clayton County. The plat

included a “Fifth Street” on the west border of the city. A portion of the plat was

vacated by the district court in 1901, including the majority—but not all—of Fifth

Street. The City was incorporated in 1904 and renamed the City of Garber.1 The

City’s current population is under one hundred residents. The property in dispute

is the original platted Fifth Street. Fifth Street has never been used as a city street,

and has not been graded, drained, surfaced, or maintained by the City. An alley

runs along the east side of Fifth Street, separated from Fifth Street by trees and a

fence.

         In 1959, the Kolz family purchased property on the west edge of the City.

The Kolzes’ address was 501 Fifth Street, and was the only property with a Fifth

Street address. The property was thought to include and treated as including all

the land up to the west edge of the alley, including Fifth Street. The Kolz family

accessed their property through a driveway at the end of the alley. The Kolzes

grew a garden over part of the disputed property, used the property in placing their


1
     The incorporation documents did not include any plat of the City; rather, the
incorporation plat only contained the borders of the incorporated area.
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septic system, and planted several dozen trees on the southern end. For many

years the Kolz family openly used part of Fifth Street as farm land with the City’s

knowledge. The Kolzes registered the land with the Farm Service Agency to grow

native wildflowers, possibly as part of the Conservation Reserve Program, and the

Jasters maintain the certification.

       In 2012, the Jasters purchased the Kolzes’ property. When purchasing the

property, the seller’s description of the property included the land in dispute. After

closing, the bank discovered the legal description conflicted with the county plat so

the Jasters requested a quit claim deed from the City for Fifth Street. The City

refused and instead claimed ownership of the street. The Jasters moved their

driveway to a different street and erected fence posts where the driveway had been

to stop persons from driving through their property.

       Prior to this action, long-time city residents including the Kolz family and

members of the city council did not know a platted Fifth Street existed. The only

use of Fifth Street by vehicles was the Kolzes’ driveway at the end of the alley.

       In 2016, the City had a survey done, and the resulting plat shows none of

the streets west of Third Street are located in accordance with the 1873 plat. The

2016 plat and current city layout does match the 1919 plat of the “West View

Addition,” which replatted the other land vacated in the 1901 order; the plat

relocated Fourth Street, laid out lots on either side of Third and Fourth Streets, and

created a new east-west street, but omitted Fifth Street entirely. The record does

not include any plats of the City following its incorporation that include Fifth Street.

       The City had no plans for the property to be developed but claimed

ownership was needed for fire protection, EMS calls, and utility access. At one
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point, Clayton County had tried to have the City install a city water or sewer system,

but the plans were halted following major flooding in 2004 and have not been

pursued since. Except for a single year after the beginning of this action, the City

has never made any effort to maintain or take care of any portion of Fifth Street. 2

The area between Fourth and Fifth Streets is only one lot deep, with the lots in

between fronting on Fourth Street. Since the Jasters moved their driveway no

property fronts Fifth Street.

         On April 28, 2016, the Jasters filed suit to resolve the dispute over

ownership of the property once platted as Fifth Street. The Jasters stated the City

had recognized the disputed land as part of the Jasters’ property for more than ten

consecutive years. The City counterclaimed for quiet title for ownership of Fifth

Street. The court held a bench trial on April 19 and 20, 2017.

         On August 18, the court ruled in favor of the Jasters. The court considered

the doctrines of acquiescence, adverse possession, and equitable estoppel. The

court found the Jasters proved an equitable estoppel claim by clear and convincing

evidence. The City filed a motion to enlarge and amend on the findings relating to

the doctrine of equitable estoppel, which the court denied following an unreported

hearing. The City appeals.

      II.      Standard of Review

         “An action to quiet title in land is in equity and, thus, this court’s review is de

novo.”      Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 811 (Iowa 2000).

“Although we give weight to the trial court’s fact findings, neither the court’s findings


2
  The City’s maintenance effort consisted of an employee mowing Fifth Street, which had
been covered in tall prairie grasses.
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of fact nor its conclusions of law are binding.” Stecklein v. City of Cascade, 693

N.W.2d 335, 336 (Iowa 2005).

       III.   Merits

       In the context of property disputes, a claim of equitable estoppel requires

proof of three elements. Fencl, 620 N.W.2d at 816. First, the claimant must prove

conduct by the City indicating abandonment of its interest.       Id. Second, the

claimant must prove a claim of ownership through adverse possession. Id. at 818.

Third, the court must find the City’s assertion of its ownership interest would

unfairly damage the claimant. Id.

       A.     Abandonment. “A threshold requirement for [abandonment] is

proof that the city has not used the property for more than ten years.” Id. at 816.

That threshold has been met here. The land once platted as Fifth Street has been

used as cropland, a garden, an arborvitae, and as a driveway for the adjoining

property’s owners, but has never been used for any City purpose.

       This element also requires “affirmative evidence of a clear determination to

abandon.” Allamakee Cty. v. Collins Tr., 599 N.W.2d 448, 452 (Iowa 1999). “[A]n

intent to abandon must be proven by clear and satisfactory evidence.” City of

Marquette v. Gaede, 672 N.W.2d 829, 834 (Iowa 2003). “[T]he failure of a small

town to improve a street ‘before public convenience requires it, will not amount to

either an abandonment or an estoppel.’” Stecklein, 693 N.W.2d at 345 (quoting

Keuhl v. Town of Bettendorf, 161 N.W. 28, 31 (Iowa 1917)).

       Since its incorporation, the City has made no claim to the land. In 1901, the

court vacated a portion of the 1873 East Elkport plat, including the streets adjacent

to the vacated blocks. Upon its incorporation in 1904 as the City of Garber, the
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City did not submit the 1873 plat laying out streets and lots.                Following

incorporation, the City made no attempt to claim or replat Fifth Street prior to the

Jasters’ request for a quit claim deed. While incorporation may have acted as

acceptance of the 1873 plat, such acceptance could only extend to the portion not

vacated. See Stecklein, 693 N.W.2d at 339; Town of Kenwood Park v. Leonard,

158 N.W. 655, 658 (Iowa 1916). In 1919, the City platted an addition of the land

vacated in 1901 but did not include Fifth Street at all. Instead, the new plat

eliminated the prior access points to the platted Fifth Street, limiting potential

access to a single intersecting street. We find the City’s elimination of Fifth Street

from new plats, its limitation of access to the purported street, its failure to take any

affirmative action to assert its rights or recognize and claim Fifth Street as city

property at any time between its incorporation and this action constitutes an

abandonment of Fifth Street.

       B.      Adverse Possession. For this element, the claimant “must prove

his ‘actual and notorious possession of the land . . . as private property under a

claim of right.’” Fencl, 620 N.W.2d at 818 (quoting Kelroy v. City of Clear Lake, 5

N.W.2d 12, 17 (Iowa 1942)). Claimants must have held, managed, and cared for

the property as they would other property of like nature and condition. Pearson v.

City of Guttenberg, 245 N.W.2d 519, 530 (Iowa 1976). The possession must be

for more than ten years, and the claimant must act in good faith. Fencl, 620

N.W.2d at 818. Possession under claim of right suffices to meet the element, claim

of title is not required. Id.

       The Jasters and the prior owners together have nearly sixty years of

possession of the land, during most of which the disputed property was openly
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used as part of the adjoining field for crops and then conservation land, as an

arborvitae, a garden, and as a driveway. The prior owners also improved their

property by installing pipes to reach a leach field, both of which are partially located

in the disputed property. The land was held, managed, and cared for in the same

manner as the adjoining property. The person selling to the Jasters described the

property line as running up to the alley and a stand of trees, inclusive of all the land

disputed. Upon discovering the error, the Jasters promptly and in good faith began

taking steps seeking to acquire title to the land. We find the elements of adverse

possession have been met in this case.

       C.     Unfair Damage. The final element of equitable estoppel considers

whether the Jasters will be unjustly injured by recognition of the City’s ownership

of the vacated and intersection portions of Fifth Street. See id. The Jasters

purchased their property believing in good faith based on express representations

by the seller the land once platted as Fifth Street was included in the purchase.

The discrepancy in the legal description was not discovered until after the sale had

closed. To require the Jasters—who purchased the property in good faith for

valuable consideration and without notice of the City’s claim to the disputed

property—to give up their right to the property would be inequitable and cause

unfair damage to the Jasters. See id.

       In summary, the City has not used this property for more than one hundred

years. Long time city residents and members of the city council did not know the

street existed. Much of the disputed land was vacated prior to incorporation of the

City, and the City has never claimed a right to any of the disputed property prior to

this suit. The owners have treated the land once platted as Fifth Street as part of
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the adjoining parcel for over fifty years. The Jasters in good faith believed the

disputed property was included in the property they purchased and would suffer

unfair harm if they were now deprived of the property. Accordingly, we affirm the

trial court’s order of equitable estoppel granting title to the Jasters for the property

once platted as Fifth Street.

       AFFIRMED.
