IN THE COURT OF APPEALS OF IOWA
No. 19-1253
Filed April 15, 2020
RICK DONALD RHEBB,
Plaintiff-Appellant/Cross-Appellee,
vs.
JANET MARIE CLARK,
Defendant-Appellee/Cross-Appellant.
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Appeal from the Iowa District Court for Johnson County, Paul D. Miller,
Judge.
Rick Rhebb appeals and Janet Clark cross-appeals from the district court’s
ruling in this property dispute. AFFIRMED ON BOTH APPEALS.
Erek P. Sittig of Holland, Michael, Raiber & Sittig PLC, Iowa City, for
appellant.
Matthew J. Adam and Chad D. Brakhahn of Simmons Perrine Moyer
Bergman PLC, Cedar Rapids, for appellee.
Considered by Bower, C.J., and Greer and Ahlers, JJ.
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BOWER, Chief Judge.
This case involves a dispute between adjacent property owners Rick Rhebb
and Janet Clark related to the boundary between their respective properties in
Iowa City. Rhebb appeals the trial court’s findings of a boundary by acquiescence
or, in the alternative, adverse possession. Clark cross-appeals the denial of an
award of damages for trespass. Finding no error, we affirm on both appeals.
I. Background Facts and Proceedings.
Clark owns property locally known as 5 Penn Circle, Iowa City. She bought
this property in 2012 from Joseph and Sherry Pugh.
Rhebb owns property locally known as 7 Penn Circle, Iowa City. He bought
this property in 2015 from Mike and Amy Kolen, who purchased the property from
Nick and Sue Kemp.
Joseph and Sherry Pugh built a house on and lived at 5 Penn Circle for
thirty-seven years, between 1976 and 2012. Nick and Sue Kemp built a house on
7 Penn Circle. The Pughs and the Kemps recognized a boundary by a concrete
seam in Penn Circle, approximately twelve feet east of the mailbox servicing
5 Penn Circle, projecting a straight line to the southern portion of the property.
Michael Pugh, Joseph and Sherry Pugh’s son, remembered that his parents laid
sod to that line when they moved in and then maintained the property up to this
line by mowing, keeping back trees, spraying for weeds, planting flowers, and
landscaping the area.
In 2016, Rhebb arranged for a survey to determine the exact boundaries of
his property in the process of planning landscape work. Rhebb discovered the
property line on the legal description crossed landscaped areas of Clark’s property
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and then proceeded down the hill. Rhebb’s contractor removed trees and plants
within the legal description of his lot.
The picture below shows the survey boundary markers in the existing landscaping.
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Rhebb then filed this lawsuit against Clark, asserting a claim for ejectment
based on the boundary line identified in his survey and requesting that Clark
remove encroaching landscaping and inanimate objects from the property. Clark
asserted counterclaims of boundary by acquiescence and adverse possession,
sought damages for trespass and destruction of her property, and requested a
permanent injunction.
The matter was tried to the court, which found Clark had established her
claim of boundary by acquiescence; in the alternative, the court also found she
had proved her claim for adverse possession. The court did not award Clark
damages. It denied Rhebb’s claim for ejectment.
The court quieted title to a strip of land between the adjacent properties to
Clark—highlighted in the diagram below in yellow.
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The legal description of the disputed area is:
Beginning at the Northwest Corner of Lot 335, Oakwoods Addition,
Part 7, to Iowa City, Johnson County, Iowa in accordance with the
plat thereof, recorded in Plat Book 14, at page 20, of the Johnson
County Recorder’s Office; Thence Southeasterly 15.61 feet, along
the North Line of said Lot 335 and an arc of a 50.00 foot radius curve,
concave Northwesterly, whose 15.55 foot chord bears S79’06’28”E;
Thence S09’59’22”W, 137.87 feet, to a point on the South Line of
said Lot 335; Thence N83’13’54”W, along said South Line, 11.48 feet
to the Southwest Corner thereof; Thence N08’18’09”E, along the
West Line of said Lot 335, a distance of 138.82 feet, to the Said Point
of Beginning; Said tract of land contains 1,862 square feet and is
subject to easements and restrictions of record.
Rhebb appeals, and Clark cross-appeals.
II. Scope and Standard of Review.
This action was tried as an action at law and, therefore, our review is for
correction of errors at law. See Iowa R. App. P. 6.907. Findings by the trial court
are binding on us if supported by substantial evidence. Iowa R. App.
P. 6.904(3)(a); see also Brown v. McDaniel, 261 Iowa 730, 732, 156 N.W.2d 349,
351 (1968) (“The issue of acquiescence presents mostly fact questions, and the
judgment in such a case has the effect of a jury verdict. Thus, the findings of fact
by the trial court are binding upon us if supported by substantial evidence.” (citation
omitted)).
III. Discussion.
Rhebb’s appeal. Iowa Code section 650.14 (2016) provides, “If it is found
that the boundaries and corners alleged to have been recognized and acquiesced
in for ten years have been so recognized and acquiesced in, such recognized
boundaries shall be permanently established.” See Tewes v. Pine Lane Farms,
Inc., 522 N.W.2d 801, 806 (Iowa 1994) (“Acquiescence need not be specifically
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proven; it may be inferred by the silence or inaction of one party who knows of the
boundary line claimed by the other and fails to take steps to dispute it for a ten-
year period.”).
Rhebb asserts Clark failed to prove that a recognized boundary existed. He
argues there was no artificial demarcation to create a clear boundary and part of
both properties was natural and wooded with no maintenance.
The trial court found:
Pursuant to Iowa Code section 650.14, . . . Clark has met her burden
of proof by clear evidence that a boundary by acquiescence was
established for the disputed parcel. The undisputed testimony of
Michael Pugh clearly establishes all the elements of boundary by
acquiescence. His testimony established that Joseph and Sherry
Pugh, predecessors in title to Ms. Clark’s property, lived in 5 Penn
Circle for [thirty-seven] years, between 1976 and 2012. For much
longer than the [ten-year] statutory period, predecessors in title to
both properties marked their boundaries by a concrete seam in Penn
Circle, approximately [twelve] feet east of the mailbox servicing
5 Penn Circle, projecting a straight line to the southern portion of the
property. In accordance with the acquiescence to the boundary line,
Joseph Pugh maintained the property up to this line by mowing,
keeping back trees, spraying for weeds, planting flowers, and
landscaping the area. Mr. Rhebb’s predecessor in title acquiesced
to the boundary . . . .
There is substantial evidence supporting the findings. Michael Pugh
testified that his father, Joseph, laid sod to the described line when they moved in
and maintained the property up to this line by mowing, keeping back trees,
spraying for weeds, planting flowers, and landscaping the area. He also testified
the previous owners of Rhebb’s property maintained the area up to and east of
that same recognized line of division.
Clark testified that when she purchased the property, Joseph Pugh walked
around the house and yard with her, indicating where they had mowed and
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maintained. She stated she is a gardener and the property was the main reason
she bought the home. Joseph showed Clark the points they used to identify the
boundary, including the seam in the curb. Clark also testified she talked with Mike
Kolen at the time and he also identified the boundary consistent with Joseph’s
description. Clark maintained the grass and landscaping, and the Kolens never
expressed any concern or did anything to maintain the area. Because substantial
evidence supports the trial court’s findings and conclusion of a boundary by
acquiescence, we affirm.1
Clark’s cross-appeal. Clark appeals the court’s denial of her claim for
damages for trespass in which she alleged Rhebb “destroyed landscaping,
reseeded the area, and committed unspeakable acts.” Clark “seeks the costs
necessary to restore the property to the condition it was before [Rhebb’s]
trespass—i.e., to replace the landscaping and restore [Clark’s] property to the
condition it was before [Rhebb] destroyed landscaping and graded the property.”
The trial court wrote:
In Count III of her Counterclaim, Clark seeks monetary
damages against Rhebb for trespass. In her testimony, she was
particularly concerned with water damage, flooding and pooling of
water. The properties are situated upon a hill with Clark’s property
downhill from Rhebb’s property. Additionally, Lemme School is
situated uphill from both properties.
The owner of the upper or dominant estate has “a legal and
natural easement in the lower or servient . . . estate for the drainage
of surface waters.” Thome v. Retterath, 433 N.W.2d 51, 53 (Iowa Ct.
App. 1988). The upper estate owner has the right “despite [that] the
1 Because we uphold the ruling of a boundary by acquiescence, we do not address
the alternative ruling with regard to adverse possession. Cf. Rodamaker v.
Biermann, No. 16-1102, 2017 WL 1086232, at *2 (Iowa Ct. App. Mar. 22, 2017)
(“Because we have affirmed the decision of the district court under a theory of
adverse possession, we do not address the separate theory of boundary by
acquiescence.”).
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quantity of water cast upon the servient estate is somewhat
increased.” Id. [(citation omitted)]. “Our case law is well established
that water from a dominant estate must be allowed to flow in its
natural course onto a servient estate. Where damage results, the
servient owner is without remedy.” Newlin v. Callender, 808 N.W.2d
754 (Iowa Ct. App. 2011).
Clark did not submit expert testimony concerning drainage,
causation or liability. Her estimate of damages did not itemize
categories of damage but simply submitted a bill for $12,738. I FIND
that Clark has failed to establish that Rhebb is liable for damages to
Clark.
In North v. Van Dyke, No. 16-0165, 2017 WL 4049278, at *1 (Iowa Ct. App.
Sep. 13, 2017), the plaintiff, Eunice North, sued an adjacent landowner, Douglas
Van Dyke, for trespass, loss of lateral support, and loss of trees after Van Dyke
removed trees and constructed a trail that encroached on North’s property. A jury
awarded North damages and Van Dyke appealed, asserting the trial court had
failed to instruct the jury on the diminution of value and there was insufficient
evidence of diminution of value to support the jury’s award. North, 2017 WL
4049278, at *1, *3. This court reviewed the evidence presented—which included
North’s own estimate of the diminution of value and expert testimony concerning
remediation of the embankment of the ravine—and found there was substantial
evidence to support the jury’s award. Id. at *4–5.
Here, however, Clark testified she had more water crossing her property
and more standing water at the base of her property after Rhebb’s landscaping
work. Clark offered only a non-itemized quote with this general description:
Install dirt berm along property line Approx 25’ x 2’ to push water
toward back of yard. Remove 4 wild sapling trees and make 3’ x 60’
swail from drain culvert + install rip rap rock to slow water down. Add
dirt to washed out areas Approx 4 truckloads. Haul debris away.
Regrad pathway + put new Fabric + mulch Approx 3’ X 80’
Plant 2-serviceberrys, 1-hackberry + 30-misc plants that was in
waters path.
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Material 3755.00
Labor 8150.00
11,905.00
tax 833.35
12,738.35
The quote includes items such as building a berm, removing sapling trees,
creating a drainage swale, and installing rip rap rock. We agree with the trial court
Clark did not prove Rhebb was liable for such damage. Clark did testify that Rhebb
removed two serviceberry trees, a hackberry tree, and unidentified plants from the
disputed area but presented no evidence on the cost to replace them. The
evidence Clark presented is wholly insufficient to meet her burden to prove the
damages she claims. We therefore affirm on the cross-appeal.
AFFIRMED ON BOTH APPEALS.