                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2034
                                Filed April 8, 2015

RANDOLPH W. WOODROFFE and
JANICE M. WOODROFFE,
     Plaintiffs-Appellants,

vs.

ELDA H. WOODROFFE and
KERWIN WOODROFFE,
     Defendants-Appellees.
________________________________

ELDA H. WOODROFFE and
KERWIN WOODROFFE,
     Counterclaim Plaintiffs,

vs.

RANDOLPH W. WOODROFFE and
JANICE M. WOODROFFE,
     Counterclaim Defendants.
________________________________________________________________

       Appeal from the Iowa District Court for Lee (North) County, John G. Linn

Judge.



       The plaintiffs appeal from the district court ruling denying their trespass

claim and finding the defendants have an easement by implication. AFFIRMED.



       Robert S. Hatala of Simmons, Perrine, Moyer & Bergman, P.L.C., Cedar

Rapids, for appellants.

       Timothy D. Roberts of Anderson, Roberts, Port, Wallace & Stewart, L.L.P.,

Burlington, for appellees.
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      Considered by Potterfield, P.J., and Sackett and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2013).
                                             3



SACKETT, S.J.

       The plaintiffs, Randolph H. Woodroffe and Janice M. Woodroffe, appeal

from a district court’s finding that the defendants, Elda H. and Kerwin Woodroffe,

have an easement across plaintiffs’ land for use of a septic system and

dismissing plaintiffs’ claims of trespass and damages.                  The defendants

counterclaimed, and the district court dismissed their counterclaim in part but

declared they had an easement by implication in a septic system located on the

plaintiffs’ property. We affirm.

       BACKGROUND. The plaintiffs own a tract of land described in these

proceedings as Tract A. There is a part of a septic system and a septic tank on

Tract A. It services a home on the tract where Elda resides. She has a life

estate in a tract described in this proceeding as a 2.1-acre tract of land adjoining

Tract A.1 Kerwin holds the remainder interest in the 2.1-acre tract.

       Both tracts, along with other land, were originally owned by Charles

Woodroffe, the grandfather of Randolph and Kerwin.

       In 1956, Elda and her deceased husband, Glenn, built a home on the 2.1-

acre tract and installed the septic tank on Tract A. On November 18, 1959,

Charles reserved a life estate in Tract A to himself, gave Glenn a life estate in the

property, and gave the remainder interest in the property to Glenn and Elda’s

children.




1
 It is not entirely clear how or when Elda got her life estate. However, it is not contested
by the plaintiffs, who indicated they would not force the removal as long as she was
using the system.
                                            4



        Charles died in November 27, 1974. Glenn died on October 22, 2002.

Following Glenn’s death, a partition action was filed addressing the property in

question and other family property. Apparently as a result of the partition action,

there was a land auction. Elda, Kerwin, and Anita L. Erickson2 purchased the

2.1-acre tract subject to Elda’s life estate.        Randolph and his wife, Janice,

purchased Tract A. At the time of this litigation in 2013, Elda continued to live in

the residence on the 2.1-acre plat and she continued to utilize the septic system

that was west of her residence and extended onto Tract A.

        On November 22, 2013, the district court entered findings of fact,

conclusions of law, and an order that declared Elda and Kerwin had an easement

by implication to the septic system, and that the plaintiffs’ trespass claim was

estopped by acquiescence. The district court order dismissed plaintiffs’ petition

at law and the defendants’ remaining counterclaims with costs taxed to the

plaintiffs.

        On December 13, 2013, the plaintiffs filed a motion to correct the

November 22, 2013 ruling, contending the issues of an easement by implication

and estoppel by acquiescence were not raised by the defendants and the

November 22, 2013 ruling should be amended. On December 20, the plaintiffs

filed a notice of appeal from the November 22, 2013 ruling.

        On December 23, 2013, after the notice of appeal was filed and served,

the district court ruled on plaintiffs’ motion, finding the facts of the case also



2
  Erickson was initially sued in this action but dismissed her counterclaim against the
plaintiffs after transferring her interest in the property. The plaintiffs dismissed their
claims against her just prior to the start of trial.
                                            5



supported a finding that defendants have a prescriptive easement for the septic

system because Glenn and Elda expended significant labor or money on the

system and relied on the consent of Charles Woodroffe in building it. The court

also affirmed its earlier ruling that the defendants also have an easement by

implication.

         SCOPE OF REVIEW. The plaintiffs contend that our review is de novo.

Whether the district court tried a proceeding in equity or at law is determinative of

our scope of review on appeal. In re Mount Pleasant Bank & Trust Co., 426

N.W.2d 126, 129 (Iowa 1988). If the district court tried the case at law, our

review is for correction of errors of law. Id. If tried in equity, our review is de

novo. Iowa R. App. P. 6.907. If there is uncertainty about the nature of a case,

an often-used litmus test is whether the trial court ruled on evidentiary objections.

Citizens Sav. Bank v. Sac City State Bank, 315 N.W.2d 20, 24 (Iowa 1982).

When a trial court does rule on objections, it is normally the hallmark of a law

trial, not an equitable proceeding. Sille v. Shaffer, 297 N.W.2d 379, 380-81 (Iowa

1980).

         The plaintiffs filed their petition at law and asked for a jury trial, which was

subsequently waived. The district court recognized in its ruling that the case was

tried at law. Furthermore, objections were ruled on at trial. We consider the

case to be at law and review for correction of errors at law. In a law action, the

district court’s findings of fact are binding upon us if those facts are supported by

substantial evidence. Iowa R. App. P. 6.904(3)(a). Evidence is substantial if
                                          6



reasonable minds could accept it as adequate to reach the same findings. Tim

O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996).

        ISSUES ON APPEAL. The plaintiffs contend there was no easement by

implication or estoppel by acquiescence. They request damages for trespass,

contending that the continued presence and use of the septic tank on their

property amounts to a trespass and they are entitled to money damages. They

further ask that defendants be required to remove that part of the system on their

land.

        A. Estoppel By Acquiescence.

        The plaintiffs contend that the district court incorrectly held that they were

estopped from bringing their trespass claim because this action was not filed until

nine years and 363 days after Glenn’s death on August 3, 2004. Although the

doctrine of estoppel by acquiescence bears an “estoppel” label, it is, in reality, a

waiver theory. Markey v. Carney, 705 N.W.2d 13, 21 (Iowa 2005). This doctrine

applies “where a person knows or ought to know that he is entitled to enforce his

right . . . and neglects to do so for such a length of time as would imply that he

intended to waive or abandon his right.” Humboldt Livestock Auction, Inc. v. B&H

Cattle Co., 155 N.W.2d 478, 487 (Iowa 1967). “Estoppel by acquiescence is

based on an examination of the . . . actions [of the individual] who holds the right

in order to determine whether the right has been waived.” Davidson v. Van

Lengen, 266 N.W.2d 436, 439 (Iowa 1978). Under Iowa law, it is not necessary

to prove prejudice to establish estoppel by acquiescence. See id. In contrast,

the doctrine of equitable estoppel requires proof that the party alleging an
                                          7



estoppel relied on a false representation or concealment of material fact “to his

prejudice and injury.” Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 815 (Iowa

2000). The doctrine of estoppel by acquiescence is more akin to waiver than to

equitable estoppel due to the absence of the justifiable reliance and prejudice

elements. Westfield Ins. Cos. v. Econ. Fire & Cas. Co., 623 N.W.2d 871, 880

(Iowa 2001).

       Considering all the facts, we do not believe the district court erred in

finding estoppel by acquiescence. The district court found, and we agree, that

Randolph was well aware of the presence of the septic tank on Tract A.

Furthermore, Randolph had knowledge of the system’s presence when he

purchased Tract A. He had held an interest in the property by virtue of his

grandfather’s transfer, his grandfather’s death, and then his father’s death.

Furthermore, Randolph’s own testimony was that the septic tank could remain

there until his mother’s death or vacation of the residence on the 2.1 acre tract.

       The plaintiffs also argue that the district court erred in not recognizing that

even though he had a remainder interest in the property since it was transferred

to Charles’s grandchildren in November 1959, the period of possession to

support his position did not begin to run until he had full title to the property

because as a joint remainderperson, he was not required to establish his rights

until he had title and possession. There is some support for his position. See 3

Am. Jur. 2d Adverse Possession § 221 (2d ed.) (“The statute of limitations never

runs against a remainderman or reversioner during the existence of the life

estate for the reason that no cause or compelling right of action is in the
                                          8



remainderman or reversioner during the life estate.”).      However, we do not

accept that argument here. The septic tank was constructed in about 1956. At

the time Charles held title to the land that is designated as Tract A. Though there

is no written record of the grant of an easement, obviously there was some kind

of agreement or permission between Charles and his son, Glenn, that Glenn

could install the septic tank on what was then Charles’s land. The record does

not illustrate what the agreement was, but there is no evidence that at any time

during Charles’s life time he sought to have Glenn remove the septic tank from

Tract A, nor was there any evidence that removal was sought during Glenn’s

lifetime. The prior owners of the real estate recognized and acquiesced in the

placement of the septic tank more than half a century ago. See Tewes v. Pine

Farms Inc., 522 N.W.2d 801, 806 (Iowa 1994) (noting boundary by acquiescence

may be shown through the landowners’ predecessors’ knowledge and the ten-

year period of acquiescence may accrue before the current landowner took

possession).

       Because the defendants proved the defense of estoppel by acquiescence,

the plaintiffs trespass claim fails. Accordingly, their claim for damages for the

septic tank being located on their property fails.

       B. Easement By Prescription.

       We believe that defendants have also shown they have an easement by

prescription. We recognize the district court attempted to amend its order to also

conclude that defendants had a prescriptive easement after the notice of appeal

was filed. We agree that the district court was without jurisdiction to do so. See
                                         9



In re Marriage of Courtney, 483 N.W.2d 346, 348 (Iowa Ct. App. 1992) (noting

the district court lacks jurisdiction to modify a decree while it is pending on

appeal). However, this court may affirm on grounds other than those relied upon

by the court below provided they were urged below. Wenck v. State, 320 N.W.2d

567, 569 (Iowa 1982); Citizens First Nat’l Bank v. Hoyt, 297 N.W.2d 329, 332

(Iowa 1980).     Even if the district court incorrectly found an easement by

implication, we will not disturb its judgment if we are satisfied that it reached the

correct result. See Schnabel v. Vaughn, 140 N.W.2d 168, 172 (1966). We are

obliged to affirm an appeal where any proper basis appears for a trial court’s

ruling, even though it is not one upon which the court based its holding. General

Motors Acceptance Corp. v. Neil, 176 N.W.2d 837, 841-42 (Iowa 1970). In their

post-trial brief, the defendants requested the court recognize the property was

“subject to an easement right” alternative relief to their boundary by

acquiescence and quiet title claims.         Because finding the existence of an

easement by prescription is a proper basis for affirming, we consider it on appeal.

       An easement by prescription “is similar to the concept of adverse

possession.” Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001); see also

Simonsen v. Todd, 154 N.W.2d 730, 736 (Iowa 1967). It “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. The facts relied upon to establish a prescriptive easement “must

be strictly proved. They cannot be presumed.” Simonsen, 154 N.W.2d at 736.
                                         10



       The requirements of hostility and claim of right are closely related.

Johnson, 637 N.W.2d at 178. Hostility refers to declarations or acts that show

the declarant or actor claims a right to use the land. Id. “Similarly, a claim of

right requires evidence showing an easement is claimed as a right.” Collins Trust

v. Allamakee Cnty. Bd. of Supervisors, 599 N.W.2d 460, 464 (Iowa 1999). It

must also be established that the servient owner had express notice of the claim

of right, not just the use of the land. Phillips v. Griffin, 98 N.W.2d 822, 825 (Iowa

1959). This notice may be actual or established by “known facts of such [a]

nature as to impose a duty to make inquiry which would reveal [the] existence of

an easement.” Anderson v. Yearous, 249 N.W.2d 855, 861 (Iowa 1977).

       A claim of right must be shown by evidence independent of the use of the

easement. Collins Trust, 599 N.W.2d at 464; Simonsen, 154 N.W.2d at 736.

That is because permissive use of land is not considered to be hostile or under a

claim of right. See Collins Trust, 599 N.W.2d at 464 n.1. Moreover, “[c]ontinued

use does not, by mere lapse of time, become hostile or adverse.” Mensch v.

Netty, 408 N.W.2d 383, 387 (Iowa 1987).

       The Iowa Supreme Court relaxed the traditional requirements for a

prescriptive easement “in those situations in which the party claiming the

easement has expended substantial amounts of labor or money in reliance upon

the servient owner’s consent or his oral agreement to the use.” Simonsen, 154

N.W.2d at 733. Prescriptive easements based on this relaxed standard “are

determined either on the theory of a valid executed oral agreement or on the

principle of estoppel.” Id.
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       Under this exception to the strict rules governing prescriptive
       easements, an easement by prescription may arise “in those
       instances in which the original entry upon the lands of another is
       under an oral agreement or express consent of the servient owner
       and the party claiming the easement expends substantial money or
       labor to promote the claimed use in reliance upon the consent or as
       consideration for the agreement.”

Brede v. Koop, 706 N.W.2d 824, 828 (Iowa 2005) (quoting Simonsen, 154

N.W.2d at 495).

       The evidence clearly supports a finding the defendants had a prescriptive

easement for the septic system.        The evidence shows there was labor and

money put towards the installation, coupled with the fact that the system has

been in place for over fifty years and no one had complained. Because the

evidence supports the finding of an easement, we affirm.3

       The plaintiffs contend that the defendants should be required to remove

the septic tank. Because of our holding, we need not address this issue except

to say that there is no evidence that the defendants own the system and the tank.

Rather, it appears that the system and tank are affixed to the real estate and

became the plaintiffs’ property when they purchased the property, including Tract

A.

       AFFIRMED.




3
 Because the finding of a prescriptive easement is dispositive, we need not consider the
plaintiffs’ argument that the court erred in finding an easement by implication exists.
