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Jp Morgan Chase Bank, As Trustee, By Residential Funding Corporation, Attorney-In-Fact v. Dimaggio Nichols

January 9, 2013

JP MORGAN CHASE BANK, AS TRUSTEE, BY RESIDENTIAL FUNDING CORPORATION, ATTORNEY-IN-FACT, PLAINTIFF-APPELLEE,
v.
DIMAGGIO NICHOLS, INDIVIDUALLY AND AS TRUSTEE OF THE DIMAGGIO NICHOLS REVOCABLE TRUST AND LIZZIE S. NICHOLS, INDIVIDUALLY AND AS TRUSTEE OF THE LIZZIE S. NICHOLS REVOCABLE TRUST, DEFENDANTS-APPELLANTS.



Appeal from the Iowa District Court for Warren County, David L. Christensen, Judge.

The opinion of the court was delivered by: Mullins, J.

Adjoining landowners appeal the district court's ruling granting an easement by necessity in favor of property owned by a bank through foreclosure. AFFIRMED.

Heard by Doyle, P.J., and Mullins and Bower, JJ.

Dimaggio and Lizzie Nichols, individually and as the trustee for their respective trusts (the Nicholses), appeal the district court's decree granting an easement by necessity over their land in favor of land owned by JP Morgan Chase Bank (the Bank). The Nicholses assert the district court erred in granting the easement because (1) the Bank was on notice of the lack of access to the road when it issued the mortgage on the property in question, (2) the original grantee to the property intended to obtain a different access easement, (3) the Bank was not a party to the initial land transaction, and (4) the Bank failed to prove unity of title. For the reasons stated herein, we affirm the judgment of the district court.

I. BACKGROUND FACTS AND PROCEEDINGS.

Prior to 1999, the Nicholses owned land in Indianola, Iowa, known as Lot 2. At that time, they decided to gift a two-acre section of that land, known as Parcel "C," to Dimaggio's brother and sister-in-law, Fredrick and Linda. Fredrick and Linda intended to build a house on this land, and in January 1999, the parties signed an "Easement Agreement" whereby Fredrick and Linda agreed, "As a condition for [the Nicholses] gifting us two (2) acres of land, we will have to obtain our own easement in order to build our home. Should we not be able to obtain an easement, [the Nicholses] will sell us an easement at the current market value." This agreement was never recorded. Parcel "C" was platted, and the description filed with the county recorder's office on February 1, 1999. On April 13, 1999, the Nicholses conveyed the property to Fredrick and Linda via a warranty deed, recording the transfer on the same day.

Parcel "C" was completely landlocked. The property bordering Parcel "C" on three sides belonged to the Nicholses, and abutting the fourth side was property owned by a local church. Fredrick and Linda never obtained an express access easement from the Nicholses or the church. The construction crews, hired by Fredrick and Linda to build their house, used the gravel driveway the Nicholses used to access their own home, along with an additional driveway which ran across the front of the Nicholses' property. This same route was used by Fredrick and Linda to access their home once it was built. Later the Nicholses constructed a second concrete driveway directly from the road to their home and put a remote access gate across the entrance to the driveway. If the gate was open, Fredrick and Linda could use the new driveway. If the gate was closed, they had to use the old gravel drive. Fredrick and Linda also asphalted the gravel access drive, which led from the new concrete driveway to their home on Parcel "C."

Fredrick and Linda continuously lived on Parcel "C" from 1999 until 2006. They gave a mortgage on the property to secure a loan in the amount of $400,000. The loan was eventually assigned to the Bank. Fredrick and Linda subsequently defaulted on the loan, the property was foreclosed on, and the Bank obtained a Sheriff's deed to the property on September 7, 2007.

The Bank hired a local real estate agent to list the property for sale. The agent employed the services of a land surveyor to identify the boundary lines of the property and describe the easement for ingress and egress. The surveyor identified the new concrete driveway in conjunction with the asphalt driveway as the most practical, logical, and economical location for an access easement across the Nicholses' property because the route was already paved and no new ground needed to be disturbed.

The Bank filed a petition in equity in district court seeking for the court to issue a declaratory judgment proclaiming that it was entitled to an easement across the Nicholses' land for ingress and egress to connect Parcel "C" to a public roadway. The case was tried on December 22, 2010, and the district court issued its ruling on January 27, 2011, granting the Bank an easement by necessity. The court ordered the Nicholses to choose between one of the two routes previously used by Fredrick and Linda to get to their home or offered the Nicholses the opportunity to select a different location for the easement so long as it was reasonable. The parties agreed to a new location for the easement, and the court filed its final decree on January 13, 2012, describing the location of the easement across the Nicholses' property. The Nicholses appeal.*fn1

II. SCOPE AND STANDARD OF REVIEW.

As this case was tried in equity, our review is de novo. Iowa R. App. P. 6.907. We give weight to the factual findings of the district court, especially its determinations of credibility, but we are not bound by those findings. Iowa R. App. P. 6.904(3)(g).

III. EASEMENT BY NECESSITY.

While there are four ways to create an easement,*fn2 only an easement by necessity is at issue in this case. To establish an easement by necessity, the easement holder must prove: "(1) unity of title to the dominant and servient estates at some point prior to the severance, (2) severance of title, and (3) necessity of the easement." Nichols, 687 N.W.2d at 568. "The doctrine of easement by necessity is most commonly applied when a landowner parcels out a landlocked portion of his or her land and conveys it to another." Id. We determine whether an easement by necessity exists at the time the landlocked parcel is severed from the parcel with access. 25 Am. Jur. 2d Easements and Licenses ยง 30, at 528 (2004). An easement by necessity results from the presumption that "a party who conveys ...


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