                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-2137
                              Filed August 2, 2017


ALBERT E. HOLCOMB IV and HOLCOMB ENTERPRISES, LLC,
    Plaintiffs-Appellants,

vs.

DELHI LAKEVIEW ESTATES, INC.,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Delaware County, Thomas A.

Bitter, Judge.




       Holcomb and his business, Holcomb Enterprises, LLC, appeal the district

court’s judgment that denied his request for a declaration that an easement by

implication in favor of his property existed across the “Waterfront Access Area” of

Lake Delhi. AFFIRMED.




       Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for

appellants.

       Janelle Grace Ewing of The Sayer Law Group, P.C., Waterloo, for

appellee.



       Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.

       In 1977 Camp-O-Delhi, Inc. (C-O-D) purchased land adjacent to Lake

Delhi in Delaware County, Iowa. In 1984 the land was platted as the Camp-O-

Delhi subdivision. The subdivision consists of some 92 lots, lake frontage area,

and also road area.      Twenty of the lots front the lake, including lot 89, the

property that is the subject of this litigation.    In 1984, C-O-D also recorded

restrictive covenants for the subdivision.       In 1985, Delhi Lakeview Estates

Landowners Association, Inc. (DLE) was formed and became successor to C-O-

D. DLE purchased from C-O-D the lake frontage area, which is a strip of land

between the shoreline and the lakefront lots—basically the beach area—called

the “Waterfront Access Area.”      DLE also purchased C-O-D’s docks.           Also in

1985, C-O-D sold lot 89 to the Stenders.         In 2005 DLE recorded restrictive

covenants for the subdivision. They mirror the 1984 C-O-D covenants.

       Ownership of lot 89 passed through several hands before Albert Holcomb

IV purchased on contract a portion of lot 89 in 2006.1 Included in the purchase

was a bar-and-grill business located on that lot, known over time as Camp-O or

Camp-O-Delhi. Holcomb and his business, Holcomb Enterprises, LLC, operated

the bar and grill as Camp-O Beach Resort after its purchase.2 The lake side of

the lot Holcomb purchased abuts the “Waterfront Access Area” of Lake Delhi. In

2007 Holcomb requested DLE furnish materials to repair or replace DLE’s

deteriorating docks. When DLE denied Holcomb’s request, he removed the DLE

docks, purchased materials, and built new docks. His application for a dock

1
  In 2010, after paying off the contract, Holcomb received a warranty deed for the
property.
2
  We hereinafter refer to the plaintiffs collectively as “Holcomb” and in the singular.
                                         3


permit was denied because DLE, the riparian owner, would not sign the permit

application. In 2008, Holcomb was cited by the Iowa Department of Natural

Resources for failing to have a dock permit. Holcomb shuttered the business

sometime in 2008 or 2009 when renewal of his liquor license was denied. After

an appeals process, Holcomb’s liquor license was approved in the summer of

2010. He was preparing to reopen the bar when, in July 2010, a major flooding

event caused the dam that created Lake Delhi to fail. Holcomb’s bar and grill

had six feet of standing water during the flooding. The lake was drained dry.

After the flood, the building was condemned because “it was off its foundation,”

and sometime thereafter, the building was torn down. Holcomb was uncertain if

and when the dam would be replaced and the lake restored, so he “left the

property as is until the dam return[ed].” However, he removed the docks he had

built and put them in storage.     Holcomb then moved to suburban Portland,

Oregon, where he resided at the time of trial.

       At the time of purchase, Holcomb obtained the property’s abstract

containing its chain of title.   Included therein is a May 1985 warranty deed

conveying to DLE the “waterfront and roads as shown” on the 1984 Camp-O-

Delhi subdivision plat and “all Boat Docks along the waterfront” of that

subdivision.   The deed noted it was “subject to all restrictive covenants of

record.” The recorded covenants specified that the lake’s frontage would “be

owned and maintained by the lot owners’ association”—DLE—and could not be

sold. The covenants also included that the docks would “be owned by [DLE]”

and could “be rented by the year to lot owners,” with the income from those

rentals being used to pay the association’s expenses. Holcomb understood the
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beach between the waterfront and lot 89 was owned by DLE, as were the

existing docks. Upon the purchase, Holcomb was provided with a copy of the

association’s by-laws.    The by-laws state the association owns, among other

things, “Water Frontage includ[ing] the beach, the boat ramp, and the entire

shoreline except for lots A, B, C, D, and O” and “All Association docks.” The by-

laws also provide:

       Dock and Dock Repairs: Each occupied lot is entitled to one dock
       space. Docks are assigned on a seniority basis with a move up list
       that will be updated each time a move is made. The dock list, the
       move up list and a list of landowners who have paid their dock fee
       will be posted in the Association owned shed. You will be
       responsible for the maintenance of your assigned dock. Materials
       for repairs will be provided by landowners Association.

       In June 2010, a month before the dam broke, Holcomb filed suit against

DLE, seeking the district court to declare Holcomb had “a right of easement

across shoreline property and Waterfront Access Area, and for other relief as is

just and equitable in the premises,” under theories of easement by prescription

and easement by implication.       The petition alleged that “because previously

existing docks,” which patrons of his resort had used to access his resort, “were

in a state of disrepair and posed a hazard to users” and DLE “refused to provide

the material to rebuild or repair the docks,” he “constructed docks on the

waterfront . . . adjacent to his property on property owned by [DLE].” The petition

stated Holcomb had attempted to obtain a dock permit but was “denied as a

result of the refusal of [DLE] to sign the dock-permit application.”

       The litigation between Holcomb and DLE was “put on hold in order to

attempt to arrive at a mutually agreed upon resolution of the issues.” The matter

was continued by agreement of the parties over the years, and trial was later set
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for 2016, after work had begun on the dam’s reconstruction and on new rules

and regulations regarding the use of the subdivision’s properties, including

Holcomb’s property. While the dam was under construction and no lake existed,

DLE “worked with the Iowa Department of Natural Resources to rebuild the

[d]ocks in compliance with state law and regulations and to build a concrete wall.”

Even though there was no lake, DLE continued to rent the newly constructed

docks to members in good standing, and those members continued “to pay all

dues, assessments and the dock rental fees.” DLE claimed Holcomb had not

paid the “annual assessment or dock fee for the second half of 2010” and for the

years that followed.

      Trial to the court on Holcomb’s petition was held in March 2016.

Thereafter, the district court entered its judgment denying Holcomb’s “claim for

easement by prescription and/or by implication.”       The court found Holcomb,

having paid DLE’s dock rental fees and yearly assessments in 2006, 2007, 2008,

and 2009, did not take any affirmative action to demonstrate open and hostile

use of the docks which would have been necessary to establish a prescriptive

easement. Additionally, the court found no easement by implication, explaining:

             There is no evidence that DLE ever intended to create an
      easement for Holcomb. His claim is no better than any other
      property owner on the lake who has maintained a dock for many
      years. His claim is that the docks have existed for a very long time
      for the benefit of [his and prior lot 89 owners’] property, but there is
      no proof that any prior owner considered such use to constitute an
      easement. Lastly, it is debatable as to whether the docks are
      reasonably necessary for the use and enjoyment of [Holcomb’s]
      property, or whether they are a mere convenience. The only claim
      made by [Holcomb] is that approximately half of his customers
      arrive by boat. Holcomb would be whole if he continued to rent the
      docks in front of his property, rather than owning them.
                                         6


       Holcomb subsequently filed a motion seeking an enlargement of the

court’s findings. Holcomb stated he believed the court’s judgment was “incorrect

because the Court focused on the more limited issue of the right to use docks,

and not on the broader issue Holcomb asserted, which was the right to access

across the shoreline based upon an easement by implication or prescription.”

Holcomb maintained “the issue is not one of the right to use docks, but rather the

right of access,” and he requested the court enlarge its findings to find that he—

the owner of lot 89 and the business thereon—“has an easement by implication

for patron access from the lake,” even if he must rent the docks—which he was

willing to do “for a reasonable rental.” The court thereafter denied Holcomb’s

motion.

       Holcomb now appeals the district court’s judgment, arguing the district

court should have recognized that an easement by implication in favor of his

property “across the Waterfront Access Area” was established at the time “the

owner of both the Waterfront Access Area and the [lot 89] property conveyed

each parcel.” The claim was tried in equity, and our review is de novo. See Iowa

R. App. P. 6.907; Larman v. State, 552 N.W.2d 158, 161 (Iowa 1996). “Equity is

not bound by forms, fiction, or technical rules but will seek and determine the true

situation.” Tri-State Ref. & Inv. Co. v. Opdahl, 481 N.W.2d 710, 712 (Iowa Ct.

App. 1991).

       “An easement by implication is one which the law imposes by inferring the

parties to a transaction intended that result, although they did not express it.”

Brede v. Koop, 706 N.W.2d 824, 830 (Iowa 2005) (citation omitted).

       An easement by implication arises under the following conditions:
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              (1) a separation of the title; (2) a showing that, before
              the separation took place, the use giving rise to the
              easement was so long continued and obvious that it
              was manifest it was intended to be permanent; and
              (3) it must appear that the easement is continuous
              rather than temporary, and [(4)] that it is essential to
              the beneficial enjoyment of the land granted or
              retained.
       An easement is “essential” when it is reasonably necessary, as
       distinguished from being merely convenient. “The intent to grant or
       reserve an easement by implication must be determined as of the
       time of the severance of the unity of ownership.”

Id. (alteration in original) (citations omitted).

       The Camp-O-Delhi subdivision was platted in 1984.                  The original

covenants were executed and recorded in October 1984. The separation of title

here occurred in 1985 when C-O-D sold lot 89 to the Stenders, the predecessors

in interest to Holcomb, and sold the waterfront to DLE.            The issue, then, is

whether the circumstances of the transaction evidence an intent by these parties

to grant or reserve an easement in the land C-O-D sold to the Stenders. See id.

at 831. We think not. The covenants predated the sale and evince C-O-D’s

intent. The covenants provide, “Lake frontage will be owned and maintained by

the lot owners’ association. Lake frontage cannot be sold.” They also provide,

“Docks will be owned by the Lot owners’ association and may be rented by the

year to lot owners.” Furthermore, they provide, “All roads and easements within

Camp-O-Delhi . . . will be owned and maintained by the lot owners’ association.”

It is thus crystal clear that at the time of severance of the unity of title, the parties

did not intend to grant or reserve an easement of access to the lake, at least by

dock, to the owner of lot 89.
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       When Holcomb filed this lawsuit, it was all about the docks. Holcomb was

miffed when DLE refused to provide material to rebuild or repair the docks that

Holcomb’s boating patrons utilized to access his business. Taking matters into

his own hands, Holcomb constructed his own docks on DLE’s waterfront

property.   The lawsuit was brought after the Iowa Department of Natural

Resources cited Holcomb for having no dock permit. After losing in district court,

Holcomb appeared to switch gears, claiming in his motion to enlarge that the

district court erred in focusing on “the limited issue of the use of docks” and that

“[t]he issue is not an easement by implication to use docks. Rather, the issue is

our easement by implication for the right of access across the Waterfront Access

Area.” Telling is the fact that Holcomb has not articulated—either to the trial

court or to us—what kind of access easement it is he seeks. Nonetheless, it is

clear he wants his boating patrons to have dock access to his business. Unless

they beach their boats, the only practical boat access is by dock. Holcomb’s

quest for an easement by implication is merely a thinly veiled attempt to

circumvent the covenants to which he is bound.           Why would he seek an

easement by implication if it were not for the purpose of installing his own docks

on DLE waterfront? He answered this question at trial. Holcomb testified he

wanted to start the business back up and that he had dock materials to put up his

own docks if he could get a dock permit and establish a right of access.

       As we noted above, an easement by implication was not intended to be

reserved or granted at the time of the separation of title, and therefore Holcomb

is not entitled to one. Consequently, we affirm the trial court’s judgment.

       AFFIRMED.
