Tamm, Inc. v. Pildis

• Decision Date: 15 December 1976
• Docket Number: No. 56601,56601
• Citation: 249 N.W.2d 823
• Parties: TAMM, INC., Appellee, v. Sarah PILDIS et al., Appellants, v. David H. JOHNSTON, Third-Party Appellee.
• Court: Iowa Supreme Court

Page 823

249 N.W.2d 823

TAMM, INC., Appellee, v. Sarah PILDIS et al., Appellants, v. David H. JOHNSTON, Third-Party Appellee.

No. 56601.

Supreme Court of Iowa.

Dec. 15, 1976.

Gamble, Riepe, Martin, Webster & Fletcher, Des Moines, for appellants.

Crawford & Clarke, Des Moines, for appellee.

Heard by REYNOLDSON, Acting Chief Justice, and MASON, LeGRAND, UHLENHOPP and HARRIS, JJ.

MASON, Justice.

This is an appeal by defendants, Sarah Pildis, Esahr M. Pildis and Sarah Pildis and Esahr M. Pildis as trustees of the Sarah Pildis marital trust, from an adverse decree of the trial court in an equitable proceedings initiated by plaintiff to establish an easement for driveway purposes over a portion of land owned by defendants and to obtain other relief.

Plaintiff, Tamm, Inc. (hereinafter Tamm), is a contract vendee of the North Half of Lot 3, Division 3 of Grimmel's Addition to Fort Des Moines, now included in and forming a part of the City of Des Moines. The easement for driveway purposes concerns the north 10 feet of the South Half of Lot 3 owned by defendants.

Tamm also requested defendants be ordered to restore the grade on defendants' property that existed prior to March 30, 1971, and to provide and permanently maintain lateral support for Tamm's lot and the easement area. By amendment, Tamm prayed the court to order defendants to present a plan of construction to the court to be approved by the court to restore the easement area and the lateral support, and if defendants refused, then to accept Tamm's restoration plan and give Tamm a money judgment against defendants for the costs thereof. In addition, Tamm requested punitive damages.

Tamm's petition was precipitated by the construction of a parking lot on defendants' property. The excavation necessary for that project encroached upon the easement area and destroyed the lateral support necessary for Tamm's property.

Defendants answered with a general denial, counterclaimed against Tamm and commenced a third-party action against David Johnston, fee owner and contract vendor of the North Half of Lot 3. Defendants asserted (1) they owned all of the South Half of Lot 3, (2) they and their predecessors in interest had been in sole and undisputed possession of said property for more than ten years, and (3) they had made valuable improvements thereon relying on such possession and ownership. Defendants prayed title to the entire South Half of Lot 3 be confirmed in them. Tamm and Johnston denied generally the allegations of defendants.

The trial court held Tamm had failed to establish an easement by prescription or adverse possession, but concluded certain handwritten language in a 1952 real estate contract created an easement by grant for driveway purposes. The court found said language was vague as to the dimensions of the easement but the practice and usage of the parties established an easement over a triangular parcel of the South Half that is 57.6 feet in length and ten feet at the base. In addition, the court enjoined defendants from obstructing the easement area and retained jurisdiction with reference to construction of a retaining wall by defendants. Defendants' appeal followed.

Some factual background is necessary at this point.

In September 1952 L. C. Hunt and his wife Minnie F., titleholders to all of Lot 3 at that time, entered into a real estate contract with Kenneth and Janice Smith, husband and wife, conveying the South Half of Lot 3 to the Smiths. The contract contained the following handwritten language:

'Driveway is combination to be used by both parties to this contract.' This contract was filed July 26, 1955.

The Smiths assigned their interest in the contract and property to Lawrence McCuen and his wife Janice in July 1955, executing and delivering to them a quit claim deed covering the South Half of Lot 3. In July 1965 the Hunts conveyed title to the McCuens by warranty deed, with the following language included therein:

'This deed is given in full and complete satisfaction of and pursuant to the terms of a real estate contract * * * (between the Hunts and the Smiths) * * * which contract was subsequently assigned to the grantees herein by * * * (the Smiths) and the covenants and warranties contained therein extend only to the date of such contract.'

The McCuens conveyed title to the South Half of Lot 3 to Abe Pildis and Sarah Pildis as tenants in common by warranty deed in July 1965.

Following the sale of the South Half of Lot 3 to the Smiths in 1952, Mr. Hunt continued to operate his surgical supply business on the North Half until January 1956 when the Hunts conveyed that parcel to David and Esther M. Johnston, husband and wife. The conveyance was by warranty deed with the following language included therein:

'To have and to Hold the premises above described, with the appurtenances, * * *.'

In May 1968, subsequent to the death of Mrs. Johnston, Mr. Johnston sold the North Half of Lot 3 to Tamm, Inc., on contract. The contract contained the following:

'* * * together with any easements and servient estates appurtenant thereto * * *.'

The 'driveway is combination' language included in the 1952 contract between the Hunts and the Smiths is found nowhere else in the chain of title of either parcel. On the other hand, the easement allegedly created thereby has never been released.

The facts set out above are not disputed. However, the remainder of the facts and circumstances are sometimes disputed and sometimes unclear.

Sometime before 1952 Mr. Hunt constructed a prefabricated steel building on the North Half of Lot 3. This building is located 7.5 feet north of the line dividing the North Half and South Half of Lot 3 and was approximately 18 feet north of a frame house which was located on the South Half until its removal in March 1971 by defendants. At or about the time of the construction of the steel building on the North Half, Mr. Hunt installed two curb-cuts as points of ingress and egress from his property to Seventh Street, which bordered Lot 3 on the west. The north curb-cut, entirely on the North Half of Lot 3, is of no concern in this litigation. However, the south curbcut straddles the lot line between the North Half and South Half of Lot 3 extending approximately four feet on the North Half and ten feet on the South Half. It appears the south curb-cut was used for access to the area in front of Mr. Hunt's building and to the area between his building and the house on the South Half.

The use of the south curb-cut and the area between the building on the North Half and the frame house on the South Half, from the time of conveyance of the South Half to the Smiths in 1952 to the destruction of the easement area by defendants in 1971, is disputed and unclear. It is, however, clear that at no time did one side use the other's property for parking. The alleged easement area was only used as a point of access to property on the North Half of Lot 3.

Defendants introduced considerable evidence concerning numerous obstructions placed in the area between the house and the building by them and their predecessors in interest. Tamm, however, points out that none of those obstructions interfered with the easement area.

Tamm emphasized the presence of a service door on the south side of the steel building and the importance of the easement area for access to that door. The trial court appears to have also placed a good deal of significance on the fact of the position of this door because the narrow end of the triangular easement found by the court is exactly adjacent to this service door. (The building is 19.6 feet east of the west lot line and the door is 38 feet from the front of the building. The easement extends east of the west lot line 57.6 feet.)

The parties disagree as to the composition of the surface of the area between the building and the house. Defendants rely on the testimony of Mr. McCuen that the area was grass and dirt with no gravel or ash deposited there. Tamm states the area was always gravel and dirt and relies on photos showing the area in 1955, 1965 and 1968.

These factual disputes will be dealt with as they become necessary in resolving the issues presented on appeal.

In March 1971 defendants removed the frame house located on the South Half of Lot 3. The property was then graded and excavated in preparation for the contemplated parking lot resulting in the destruction of the lateral support necessary for the easement area and the land immediately adjacent thereto. Tamm's petition in equity followed shortly thereafter.

The following issues are presented for review:

1. Did the trial court err in sustaining plaintiff's objections to the testimony of L. C. Hunt on the ground it violated the parol evidence rule?

2. Did the trial court err in sustaining plaintiff's objections to the testimony of Mr. and Mrs. McCuen on the ground it violated the hearsay rule?

3. Did the trial court err in holding the handwritten language in the 1952 real estate contract created an easement by grant?

4. If there was not an easement created by grant, did the evidence support an easement by prescriptive use or implication?

5. Should the trial court have concluded the terms and provisions of the 1952 real estate contract merged into the warranty deed of 1965, thereby destroying the easement?

'In an equity matter, such as this, our review is de novo. Rule 334, Rules of Civil Procedure. It is our responsibility to review the whole record and determine from the credible evidence rights anew on those propositions properly presented, provided issue has been raised and error, if any, preserved in the course of trial proceedings. While weight will be given to findings of the trial court, this court will not abdicate its function as triers de novo on appeal. * * * (citing authority).' Hansen v. Chapin, 232 N.W.2d 506, 509 (Iowa 1975).

This statement is recognized in In re Marriage of Bare, 203 N.W.2d 551, 554--555 (Iowa 19...