JAR FARMS LTD, PAUL W. THIESCHAFER, Individually, and PAUL W. THIESCHAFER, AMY THIESCHAFER and PAUL THIESCHAFER as Co-Trustees of the BERNUS A. THIESCHAFER FAMILY TRUST, Plaintiffs-Appellees,
CERTIFIED MATERIALS, INC., Defendant-Appellant.
from the Iowa District Court for Mills County, Jeffrey L.
Materials, Inc. appeals the district court order granting JAR
Farms, LTD a prescriptive easement over portions of its
F. Smeall, Danielle M. Dring, and Jacob A. Acers of Smith,
Slusky, Pohren & Rogers, LLP, Omaha, Nebraska, for
T. Glaser and Leo P. Martin of Peters Law Firm, P.C., Council
Bluffs, for appellees.
by Potterfield, P.J., and Doyle and May, JJ.
dispute involves a gravel farm access lane that deviates from
a thirty-foot ingress/egress easement located on property
owned by JAR Farms LTD and onto land owned by Certified
Materials, Inc. On appeal, Certified Materials challenges the
district court order granting a prescriptive easement over
the portions of its property affected by this deviation,
claiming JAR Farms presented insufficient evidence of a
prescriptive easement. Certified Materials also contends
plaintiffs sought a preliminary injunction in bad faith.
Background Facts and Proceedings.
Farms owns two adjoining tracts of land in Mills County: a
northern tract consisting of approximately forty acres (JAR
North 40) and a southern tract consisting of approximately
300 acres of land (JAR South 300). Certified Materials owns a
four-acre parcel of land abutting the eastern boundary of JAR
North 40. Plaintiffs Thieschafer own property abutting the
southern boundary of the Certified Material property and the
eastern boundary of the JAR North 40. A highway runs east and
west along the northern boundaries of JAR North 40 and the
Certified Materials parcel. The gravel farm access lane runs
north and south along the eastern border of the JAR North 40
and provides access to the JAR South 300 from the
Goodman is president of JAR Farms, a corporation he formed in
1989. JAR Farms is a "custom farm," meaning it
hires operators to do the farming work. Goodman previously
owned both JAR Farms properties, acquiring each tract
separately. He purchased JAR South 300 in 1981. Because the
JAR South 300 is accessible to the highway only through other
land, the deed included a thirty-foot permanent easement
along the eastern boundary of what is now the JAR North 40 to
allow ingress and egress to the highway. A gravel access lane
has been in use for this purpose even before Goodman
purchased the land. Goodman acquired JAR North 40 in 1997. In
December 2010, he transferred both tracts to JAR Farms.
Materials acquired its four-acre parcel in May 2015. In 2016,
it began construction on a chain link fence along the
boundary it shares with JAR North 40. The gravel access lane
used by JAR Farms strays from the thirty-foot easement and
onto the Certified Materials land. The record is not clear as
to how far the lane strays onto the Certified Materials land
or for what distance. Utility poles are located near the
centerline of the easement. The record does not indicate when
the poles were placed there. Because of the location of the
utility poles in the easement, the presence of the fence on
the east side of the easement restricts large farm equipment
from passing through. MidAmerican Energy indicated it would
charge Goodman (JAR Farms) $19, 447.91 to remove three of the
poles, reinstall two poles, and bore in 435 feet of conduit.
November 14, 2016, JAR Farms filed suit in district court
seeking an injunction to stop Certified Materials from
continuing construction on the fence. It also asserted it was
entitled to a prescriptive easement or boundary by
acquiescence. The district court entered an order granting
injunction the same day. After bond was posted, the court
issued a temporary writ of injunction on November 23, 2016.
Certified Material was served on November 25th. Certified
Materials moved to dissolve the injunction and also filed an
answer and filed counterclaims asserting, among other things,
that JAR Farms sought the injunction in bad faith, the
injunction was wrongfully granted, and sought damages. The
court dissolved the injunction on January 24, 2017. Following
a trial to the bench, the district court found that JAR Farms
established a prescriptive easement over "a portion of
the western ...