Skow v. Goforth, 98-1570.

• Decision Date: 11 October 2000
• Docket Number: No. 98-1570.,98-1570.
• Citation: 618 N.W.2d 275
• Parties: Duane SKOW and Vinette Skow, Appellants, and Arnold Larsen and Paul Novak, Plaintiffs, v. Cecil Dean GOFORTH and Joyce Goforth, Appellees.
• Court: Iowa Supreme Court

618 N.W.2d 275

Duane SKOW and Vinette Skow, Appellants, and Arnold Larsen and Paul Novak, Plaintiffs, v. Cecil Dean GOFORTH and Joyce Goforth, Appellees.

No. 98-1570.

Supreme Court of Iowa.

October 11, 2000.

Robert A. Nading II of the Nading Law Firm, Ankeny, for appellants.

Roger J. Hudson, Sr. and Andrew B. Howie of Smith, Schneider, Stiles, Hudson, Serangeli, Mallaney & Shindler, P.C., Des Moines, for appellees.

Considered en banc.

LARSON, Justice.

The issues in this case are (1) whether the defendants, who own land subject to an easement for the benefit of the plaintiffs, may use a strip approximately three inches wide on the edge of the easement to construct a fence and maintain a "private drive" sign at the entrance to the easement; and (2) whether the easement has been expanded by prescription or acquiescence. The district court ruled the defendants could install a fence and maintain the sign. It also held the easement had not been expanded as claimed by the plaintiffs. The plaintiffs appealed. The court of appeals reversed on the first issue and affirmed on the second. We vacate the decision of the court of appeals and affirm the judgment of the district court on both issues.

I. Background Facts and Proceedings.

Plaintiffs Duane and Vinette Skow own two parcels of land that are accessed through an easement across land owned by the defendants, Cecil and Joyce Goforth. A drawing attached to this opinion shows the easement and the tracts surrounding it. The proposed fence, which would run inside the easement along the southern boundary of the Goforth property, is shown by the row of xs on the drawing.

A deed in 1908 conveyed land to the Skows' predecessors in interest

together with the right-of-way to drive teams over the South One (1) Rod [16½ feet] wide along the South side of said Twenty (20) Acre tract from the southeast corner thereof to the Two & ¼ (2¼) Acres hereby conveyed.

Northeast Tenth Street is a public street running north and south, perpendicular to this easement at its east end. Northeast Tenth Street provides access to the Goforths' property but does not provide access to the Skows' property. (Although the drawing shows the easement as Northeast Sixty-First Avenue, it is undisputed it is an easement and not a public street.) The easement is one rod (16½ feet) wide and runs from the eastern edge of the Goforth property to a point 100 rods to the west. It runs along the southern boundary of the Goforths' parcel, along the southern boundary of the Skows' two-acre parcel, and along a portion of the southern boundary of the Skows' fourteen-acre parcel, all as shown by the attached drawing. Both the Skows, who use the easement to access their home, and their tenant, who uses it for accessing his farmland, rely on the easement as their only access. Arnold Larsen and Paul Novak own parcels that abut the easement on its southern edge, but they do not have to rely on it for access.

In 1997 the Skows, Larsen, and Novak petitioned for a permanent injunction to stop the Goforths' proposed erection of the fence. The plaintiffs contended the fence, originally proposed as a chain-link fence, would deny them their right to use the full width of the easement because the fence, which would be approximately three inches wide, would reduce the width of the easement from 16½ feet to 16¼ feet.

On the eve of trial, the plaintiffs amended their petition to allege the easement had been widened by operation of law because the Goforths had "acquiesced in the boundary line, and/or prescription and/or implied reservation of said easement and the dimensions of said easement."

The district court enjoined the Goforths from installing the five-foot chain-link fence as originally proposed, but ruled that they could erect another type of fence so long as it was consistent with the court's ruling and was done with its prior approval. The court held the easement had not been widened by prescription or acquiescence beyond the 16½ feet in the original conveyance.

After the court's ruling and after the appeal notice was filed, the Goforths filed a "Proposal for Approval of Installation of a Fence" in which they asked the court to approve another fence design. On October 9, 1998, this court ordered a remand to the district court for the purpose of addressing the Goforths' revised fence proposal. On October 13, 1998, the district court approved the proposed fence, but this court temporarily stayed its construction.

II. Scope of Review.

Our review of actions for injunctive relief is de novo. Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa 2000). The Skows urge a de novo review of all aspects of the case, including the issues of prescription and acquiescence, and the Goforths do not resist. Accordingly, we will review the entire case de novo.

III. Parties on Appeal.

Although Larsen and Novak, owners of the lots abutting the easement on the south, were plaintiffs in the district court, the court found they had no legal rights in the easement. Larsen and Novak apparently agreed and are not involved in this appeal.

IV. The Injunction Issue.

The Skows contend the Goforths should be permanently enjoined from interfering with their use of the easement, even though the evidence at trial showed the fence would extend into the southern edge of the easement only about three inches. The Skows contend that, while this incursion into the easement appears to be slight, it nevertheless might some day impede their use of the full 16½-foot easement.

Injunctive relief is an extraordinary remedy that is granted with caution and only when required to avoid irreparable damage. Sear v. Clayton County Zoning Bd. of Adjustment, 590 N.W.2d 512, 515 (Iowa 1999). A party seeking an injunction must establish (1) an invasion or threatened invasion of a right, (2) substantial injury or damages will result unless an injunction is granted, and (3) no adequate legal remedy is available. Id. The dispositive issue in this case is whether the Skows have established a "substantial injury or damages" under the second element. Id.

At the outset, we note that an easement of a "horse and buggy" nature may be used by other forms of modern vehicular traffic. See McDonnell v. Sheets, 234 Iowa 1148, 1154-55, 15 N.W.2d 252, 255 (1944) (words "team and wagon" did not restrict type of vehicle that could use easement); Hodgkins v. Bianchini, 323 Mass. 169, 171-72, 80 N.E.2d 464, 467 (1948) (travel by gravel trucks allowed under 1820 easement granting use for horse carts). In this case, the grant of easement must be interpreted to allow ingress and egress for modern vehicular traffic, including farm tractors and implements.

The Skows testified their tenant hauled hay across the easement "and also he needs to bring down the mower and hay conditioner and baler et cetera." The Skows do not contend, however, that a restriction of three inches in the width of the easement would prevent, or even impede, the present use of the easement. They contend only that the additional three inches should be available in case they need it.

The fence approved by the district court is to be built along the southern edge of the easement extending the full length of the Goforths' property. As shown on the attached drawing, the fence would border the entire northern edge of the Novak lot and approximately the east one-third of the Larsen lot. The Skows claim this fence is "useless" because it does not form an enclosure of any kind and "connects to nothing." It is a fence in the middle of nowhere with no purpose, according to them, except to frustrate the neighbors. The Goforths disagree. They claim the fence has a very legitimate purpose: keeping trespassers, including Novak and Larsen, off of their property. Cecil Goforth testified one of his neighbors, gaining access through the easement, had parked construction equipment on the Goforths' land for an entire winter.

The Goforths' interest, as the owners of the underlying title to the land on which the easement is located, is referred to as a servient tenement and the Skows' interest as a dominant tenement. In these cases,

while the dominant tenement owner has the right to use the servient tenement according to the terms of the easement, the fee owner retains whatever uses do not interfere with the rights of the dominant owner.

7 Thompson on Real Property § 60.04(b)(1), at 458 (David Thomas ed., 1994).

Some courts have taken a very restrictive view of a servient owner's right to infringe on the width of an easement, even if the full width is not presently required for ingress and egress. Under this rule,

if by the terms of the grant or reservation the way must be of a certain width, no structures can be erected which encroach on the width stated, notwithstanding that the structures would not unreasonably interfere with the right of ingress and egress.

28A C.J.S. Easements § 179 (1996) (footnotes omitted).

The rationale for denying any incursion into an easement is said to be the need for a bright line rule. In Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113 (1869), a gatepost on the entrance to an easement caused a narrowing of the passageway by three inches. In holding this to be an impermissible invasion of the easement, the court said:

When the way is defined as in the case at bar, the construction we give is ... "necessary to the security of both parties. To the grantee, to insure him a way of known width and dimension, the sufficiency of which he may judge of before he closes his contract for the purchase; and to the grantor, to secure himself against the claim of the grantee to an indefinite right to pass over his premises."

Welch, 101 Mass. at 164 (quoting Salisbury v. Andrews, 36 Mass. 250, 258, 19 Pick 250, 258 (1837)).

Taking a different view, the Connecticut Supreme Court has said a 7½-inch encroachment by a fence on a 9½-foot-wide pedestrian passage was not a substantial encroachment, although it...