Opinion
No. 2-395 / 01-1543
Filed January 29, 2003
Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.
The defendants appeal a district court ruling granting the plaintiff's summary judgment motion on the parties' easement dispute. AFFIRMED.
Dick Jensen, Des Moines, for appellants.
Edward McConnell of Edward N. McConnell, P.L.C., West Des Moines, for appellee Rice.
Louis Hockenberg of Sullivan Ward, P.C., Des Moines, for appellees Stein and Friedgood.
Heard by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Two adjacent commercial property owners disagree on whether they have mutual cross-parking easements. The district court found evidence of such easements. We affirm.
I. Background Facts and Proceedings
University Square, Ltd. developed an area in West Des Moines known as Clock Tower Square. The real estate was later divided into lots, referred to initially by letter and later by number. The lots were subject to reciprocal easements.
University Square sold Lot 4 (Parcel C) to 1720 Associates and Lots 3 (Parcel A) and 5 (Parcel B) to Drs. Michael Stein and David Friedgood. The doctors, in turn, sold Lot 5 (Parcel B) to Allen Rice.
Soon, parking became an issue. The president of 1720 Associates informed Rice that neither he nor his employees could park on Lot 4 (Parcel C) and anyone found violating this rule would be towed. The president placed "no parking" signs on certain spaces that were later found to encroach on Rice's property.
Rice sued, seeking a declaration of the parties' rights and duties under the easement agreement and damages for trespass. The district court granted his summary judgment motion after determining the easement agreement authorized mutual cross-parking. On appeal, our court reversed and remanded because the doctors had not been included as indispensable parties. On remand, the district court added the doctors, then again granted summary judgment in favor of Rice. This appeal followed.
II. Cross-Parking Easement
The parties agree their lots are subject to easements. They further agree the easements were created by express grant. See Tamm, Inc., v. Pildis, 249 N.W.2d 823, 825 (Iowa 1976) (easements may be created by an express written grant, prescription, or implication). They disagree on whether the easements authorize mutual cross-parking.
The original easement agreement states in pertinent part:
University hereby grants to Stein and Friedgood and Stein and Friedgood reserve unto themselves a permanent nonexclusive easement over that portion of "Parcel C" designated and shown as Easement C on Exhibit "A": attached hereto and incorporated herein by this reference for the purpose of construction, operation and maintenance of a roadway and parking area and for ingress to and egress from all property adjoining said easement. . . .
The district court determined this language "clearly establishes an easement over Parcel C belonging to the Defendants Associates." The court further stated, "[i]t is clear, it is unambiguous, it was recorded prior to Associates taking title, and it is binding upon them." The court concluded the language "creates a permanent nonexclusive easement for parking."
We agree with the district court that the easement agreement is plain and unambiguous. See Wiegmann v. Baier, 203 N.W.2d 204, 208 (Iowa 1972); Northern Natural Gas Co. v. Knop, 524 N.W.2d 668, 670-71 (Iowa Ct.App. 1994) (applying contract principles to construction of easement agreements). The agreement refers to an easement for "operation and maintenance of a. . . parking area" and an easement for "ingress to and egress from" adjoining property. (Emphasis added). Therefore, we are not persuaded by 1720 Associates' contention that the agreement merely affords an easement over Lot 4 to construct, operate and maintain parking areas on Lots 3 and 5. Nor are we persuaded by 1720 Associates' remaining arguments, all of which the district court cogently considered and rejected in its two summary judgment rulings.
III. Attorney Fees
On cross-appeal, Rice contends the district court abused its discretion in failing to award him attorney fees and costs either under the terms of the agreement or under common law. See McNally Nimergood v. Neumann-Kiewit Constructors, Inc., 648 N.W.2d 564, 570 (Iowa 2002) (setting forth scope of review). We are not persuaded. The district court carefully analyzed both theories of recovery before denying the request. We agree with the court's reasoning and adopt it as our own.
IV. Punitive Damages
Rice also challenges the district court's refusal to award punitive damages. The court declined to do so on the ground there was no showing of actual damage for trespass. See Hockenberg Equip. Co. v. Hockenberg's Equip. and Supply Co. of Des Moines, 510 N.W.2d 153, 156 (Iowa 1993) (showing of some actual damage necessary to support punitive damage award.
The measure of actual damage for trespass is "the value of the property before the trespass diminished by its value after the trespass."
Drake v. Claar, 339 N.W.2d 844, 847 (Iowa Ct.App. 1983). Rice points to only one damage item relating to the land: damage from installation of the "no parking" sign posts. With respect to this item, the district court stated:
No evidence was brought before the Court to show diminution of value. Additionally, no evidence was brought before the Court to state or even attempt to estimate that it would cost anything to remove the post at issue and repair the land to its previous state. While the former may have been difficult to prove, the latter was easily ascertainable. The Court is not in the position to guess as to whether the post sitting on Plaintiff's property actually diminished the value or that the land in any way had been harmed. Without proof of the same, the Court finds that Plaintiff failed to meet his burden of proof on the issue of actually showing damage to his land.
We agree with this reasoning.
Even if Rice made a showing of actual damage, punitive damages were not appropriate because the act of trespass was not "accompanied by circumstances which supply the necessary animus." White v. Citizens Nat'l Bank of Boone, 262 N.W.2d 812, 817 (Iowa 1978). 1720 Associates left two sign posts on Rice's property after receiving advice that they encroached. We are not persuaded this conduct rises to the level of legal malice necessary to support a punitive damage award. Cf. Hagenson v. United Tel. Co. of Iowa, 209 N.W.2d 76, 82 (Iowa 1973) (upholding punitive damage award where engineers saw a privacy sign and gateway, yet forged ahead with construction project, knocking down trees and tearing out pipes in the process).
V. Disposition
We affirm the district court in all respects.