McKee v. City of Council Bluffs

• Decision Date: 15 June 2022
• Docket Number: 21-1117
• Parties: MICHAEL MCKEE AND DIANE MCKEE, Plaintiff-Appellants, v. CITY OF COUNCIL BLUFFS, IOWA, Defendant-Appellee.
• Court: Iowa Court of Appeals

MICHAEL MCKEE AND DIANE MCKEE, Plaintiff-Appellants,
v.
CITY OF COUNCIL BLUFFS, IOWA, Defendant-Appellee.

No. 21-1117

Court of Appeals of Iowa

June 15, 2022

Appeal from the Iowa District Court for Pottawattamie County, Michael Hooper, Judge.

Michael and Diane McKee appeal an adverse summary judgment ruling. REVERSED AND REMANDED.

Dane J. Schumann and Steven P. Wandro of Wandro & Associates, PC, Des Moines, for appellants.

Sara E. Bauer, Assistant City Attorney, Council Bluffs, for appellee.

Heard by Vaitheswaran, P.J., and Tabor and Badding, JJ.

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BADDING, Judge.

Our appellate courts are no strangers to drainage disputes between neighboring landowners. But this case is a twist on the typical scenario because of an express easement requiring Michael and Diane McKee, the owners of lower-lying land, to install and maintain a drainage easement for water flowing from higher land owned by the City of Council Bluffs (City). The McKees brought suit against the City for relief relating to that easement. The district court granted summary judgment in favor of the City, and the McKees appeal. Because we find summary judgment was inappropriate on the bases cited by the court, we reverse and remand for further proceedings.

I. Background Facts and Proceedings

In 1987, the McKees purchased real property situated north of and abutting Simms Avenue. Simms Avenue is now owned by the City. According to the amended petition, the McKees' home is located "down a lane a few hundred yards away from Simms Avenue" and, when they purchased the property, "a small amount of drainage from Simms Avenue ran into a small ditch parallel with the McKees' lane that accessed their home" and this "drainage channel continued North, passing under the McKee's driveway and then meandering downstream until crossing the McKees' Northern property line."

Beginning in early 1992, the McKees entered into a purchase agreement and various addendums to sell a southern strip of their property abutting the north side of Simms Avenue to Duggan Land Development, Inc. (Duggan)-which Duggan would develop as a single-family subdivision called Northern Oaks-with the McKees retaining a right of way to Simms Avenue for their driveway. The

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portion of land attributable to the McKees' pre-existing driveway would ultimately come to be known as Lot 7. In March, Duggan and the City entered into a subdivision agreement concerning the final plat consisting of the twelve-lot subdivision. The agreement required Duggan to complete certain steps before the City would issue final plat approval.

On April 16, the McKees deeded the strip of land to Duggan. The same day, Lot 7, "as shown in a survey drawing by Paul M. Kline dated April 7, 1992," was deeded back to the McKees by Duggan. The following is a portion of the Kline survey that was referenced in the deed:

(Image Omitted)

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As the image demonstrates, the striped portion of Lot 7, just east of the "existing drive," is a "PRIVATE 10' STORM DRAINAGE EASEMENT," and the survey provides: "THIS DRAINAGE EASEMENT AND DRAINAGE SYSTEM IS TO BE INSTALLED AND MAINTAINED BY THE OWNER AND HIS OR HER ASSIGNS OF LOT 7 OF NORTHERN OAKS SUBDIVISION."

The McKees have experienced drainage problems over the years. In October 1992, the McKees filed a claim with the City regarding drainage issues on their property, complaining the paving of Simms Avenue changed their drainage and caused problems with flooding and silting. The City responded "the drainage in this area" was governed by agreements between the McKees and Duggan. In March 1993, the McKees' legal counsel wrote to the City and essentially challenged the existence of an easement and their responsibility to maintain the drainage system on Lot 7. The McKees requested the City to maintain the storm sewer. The City responded that the owner of Lot 7 was responsible for maintaining the system. In 2001, despite the fact that "a storm drainage system was installed in th[e] easement on or about the year of 1997," the owner of Lot 8 threatened legal action against the McKees over the inadequacy of the system and its state of disrepair. The McKees apparently had additional work done in the area to remedy the issue, for which the owner of Lot 8 provided the McKees with some financial assistance.

Ultimately, in August 2020, the McKees commenced this litigation against the City. In their petition, the McKees essentially asserted they never "agree[d] to maintain any easement on Lot 7" and, due to the subdivision improvements and infrastructure, they experience flooding and erosion from drainage. The McKees

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alleged the City is the dominant estate holder of any easement on Lot 7 and the continued flowage path of drainage across the remainder of their property. The McKees sought equitable relief in the form of mandamus and declaratory relief on their claims that the City is responsible for repairing and maintaining the easement and remainder of their property. The McKees also alleged the drainage on their property amounts to a private and pure nuisance and the invasion of their property is an unconstitutional taking.

In time, the City filed a motion for summary judgment. In its ruling, the court found the McKees' dealings with Duggan resulted in an express easement on Lot 7, which placed the burden of maintenance on the owners and assigns of Lot 7 rather than on the dominant estate holder. The court also found Lot 7 is dominant to the remainder of the McKees' property and, because the McKees own both, they are also responsible for maintaining the portion of their property north of Lot 7. The court accordingly found the City was entitled to judgment as a matter of law on the McKees' claim for repairs and maintenance by the City in counts one and two of the petition. As for the nuisance claims in counts three and four, the court found those claims were time-barred, as was the unconstitutional taking claim in count five. So the court entered summary judgment in favor of the City. The McKees appeal, confining their claims to the court's ruling on counts two, three, and four.

II. Standard of Review

"The standard of review for district court rulings on summary judgment is for correction of errors of law." Kunde v. Est. of Bowman, 920 N.W.2d 803, 806 (Iowa 2018). Summary judgement is only appropriate when the moving party has shown "that there is no genuine issue as to any material fact and that the moving party is

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entitled to a judgment as a matter of law." Iowa R. Civ. P. 1.981(3). "In determining whether a grant of summary judgment was appropriate, we examine the record in the light most favorable to the nonmoving party, drawing all legitimate inferences that may be drawn from the evidence in his or her favor." Homan v. Branstad, 887 N.W.2d 153, 163-64 (Iowa 2016). Summary judgment is appropriate "if the record reveals only a conflict concerning the legal consequences of undisputed facts." Nelson v. Lindaman, 867 N.W.2d 1, 6 (Iowa 2015) (quoting Wallace v. Des Moines Indep. Cmty. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008)).

III. Analysis

A. Count Two-Cleaning and Maintenance

In reviewing the propriety of summary judgment on count two, we begin with a little housekeeping. The McKees forwarded two separate claims seeking a determination that the City was required to clean and maintain the drainage easement. Count one sought relief requiring the City, as the dominant estate holder, to repair and maintain the easement on the Lot 7 portion of their property. Count two sought the same relief, but as to the drainage path that continues on the portion of their property north of Lot 7. The district court granted summary judgment on both counts and denied the McKees their requested relief.

The McKees do not challenge the entry of summary judgment on count one relating to Lot 7. Because "our review is confined to issues presented on appeal taken from the . . . judgment," the entry of summary judgment on count one serves as a final adjudication on the issue of whether the City is required to clean and maintain the easement on Lot 7. See Helland v. Yellow Freight Sys., Inc., 204 N.W.2d 601, 605 (Iowa 1973); accord Feld v. Borkowski, 790 N.W.2d 72, 78 (Iowa 2010)

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("Our obligation on appeal is to decide the case within the framework of...