Phillips v. Smith

• Citation: 38 N.W.2d 87,240 Iowa 863
• Decision Date: 14 June 1949
• Docket Number: 47458.
• Parties: PHILLIPS v. SMITH et al.
• Court: United States State Supreme Court of Iowa

38 N.W.2d 87

240 Iowa 863

PHILLIPS v. SMITH et al.

No. 47458.

Supreme Court of Iowa

June 14, 1949

Frank W. Oertel and J. F. Hudson, of Keokuk, for appellant.

Johnson Martin, Johnson & Phelan, of Fort Madison, for appellee Lillian S. Perks.

Hollingsworth & Hollingsworth, of Keokuk, for appellees William F Smith and Minerva Smith.

OLIVER Justice.

Bluff Park is a tract of land situated in and adjacent to the town of Montrose, Lee County, Iowa. It overlooks the Mississippi River and had been a summer resort for many years. In 1911 it was platted by J. E. Whitaker, as an addition or subdivision. The plat shows one hundred sixty eight lots, various drives or streets, several small parks, a children's playground ball park and athletic field, music hall and dance pavilion tennis court, pavilion, artesian well and hotel.

Subsequently the six lots here in question were conveyed to different grantees by deeds Exhibits A to E. Whitaker's deed conveying one lot (Exhibit A) provided it should be used for residence purposes only, and also:

'The buyers agree and such agreement is made a covenant running with the land, that he will annually, on or before the 1st day of July in each year, pay to the grantor or his assigns, as the owner of Bluff Park resort, the sum of Six Dollars for supervision and maintenance of grounds, and such annual payments shall be enforcible as a lien against said lot if not paid within thirty days after maturity of the same.'

A deed to two lots (Exhibit C) contained the same provisions except the annual payments were $6 per cottage instead of $6 per lot. Another deed (Exhibit B) stated also: 'It is agreed if this Bluff Park is not maintained as a summer resort the Six Dollar annual payment shall cease, * * *.'

The deed to another lot (Exhibit D) contained none of the foregoing provisions. Plaintiff pleaded they were omitted through error or oversight and that it was generally understood that all lots would be subjected to the $6 annual charge for the benefit of the owners thereof and the purchasers of other lots.

A quitclaim deed to two lots (Exhibit E), which contained the same provisions as Exhibit A, was made by plaintiff and her husband in 1935.

In 1916 Whitaker conveyed to Walter Phillips the unsold parts of Bluff Park. Phillips operated Bluff Park until about 1930. In 1931 a mortgage made by Phillips was foreclosed and title to the property passed to a bank. In 1935 plaintiff Nellie Phillips, wife of Walter, received a quitclaim deed to the unsold parts of Bluff Park. Since then Walter Phillips has been in active charge of Bluff Park for her.

In 1943 defendants became the owners of the six lots described in Exhibits A to E, through mesne conveyance from the grantees in said deeds. This action is to establish a lien on each of these six lots in the amount of $6 per year for such lot or cottage, for supervision and maintenance of grounds for eight years beginning July, 1941.

I. The principal question is whether plaintiff supervised and maintained the Bluff Park grounds as a resort, during this period. The trial court found the record did not show she had done this and rendered judgment for defendants.

We agree with the finding of the trial court. There was considerable evidence plaintiff failed to keep up the park and roadways leading to cottages and permitted them to fall into a state of neglect and disrepair. The roads into the park, which formerly were kept up by the operator of the park, have been maintained by the county for some years. Apparently the park was treated as an adjunct to Mr. Phillips' farming operations.

A defendant testified that since 1943, when he began to occupy a summer cottage, he observed Phillips' livestock loose in Bluff Park. Each summer he repeatedly drove Phillips' horses and mules out of his yard and saw others do the same thing. He complained to Phillips 'but he turned around and walked off * * * he just turned them loose in there. And in the winter time they pastured the park,' and trampled the yards. 'The yards were almost ruined in the spring; it was awful hard to fix them up and the hogs rooted it up the first summer I...