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Saluri v. Buckley

Court of Appeals of Iowa

November 6, 2019

GEORGE J. SALURI and CANDACE C. SALURI, Plaintiffs-Appellants,
v.
JAY R. BUCKLEY and CATHY BUCKLEY, Defendants-Appellees.

          Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

         Plaintiffs appeal the district court decision granting summary judgment to defendants on the ground plaintiffs' claims are barred by the statute of limitations.

          Nicholas L. Shaull and Nathaniel D. Staudt of Spaulding & Shaull, P.L.C., Des Moines, for appellants.

          Mitchell R. Kunert of Nyemaster Goode, P.C., Des Moines, for appellees.

          Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J. [*]

          MAHAN, SENIOR JUDGE.

         George and Candace Saluri appeal the district court decision granting summary judgment to Jay and Cathy Buckley on the ground the Saluris' claims of negligence, negligence per se, temporary nuisance, permanent nuisance, and trespass are barred by the statute of limitations. We find the district court properly granted summary judgment to the Buckleys on the ground the Saluris' claims are barred by the five-year statute of limitations in Iowa Code section 614.1(4) (2017) for injuries to property. We affirm the district court.

         I. Background Facts & Proceedings

         The Saluris and Buckleys are adjacent property owners in Des Moines. The Saluris' property is to the north of the Buckleys' property. The Buckleys' property is at a higher elevation than the Saluris' property, and the Saluris have a retaining wall to the south, where their property abuts the Buckleys' property. Due to the difference in elevation, the Saluris' property is the servient estate, as water runs downhill from the Buckleys' property to the Saluris' property.

         In November 1997, the Saluris filed a civil action against the Buckleys, claiming a garage on the Buckleys' property increased the flow of water onto the Saluris' property and caused damage to the retaining wall. On August 14, 1998, the parties entered into a settlement in which the Saluris signed a release of liability and received $3500. The Saluris used the money to repair the retaining wall.

         The Buckleys constructed a home on their property in 2004. During construction, the Buckleys placed a wall made of landscaping timbers or railroad ties to the north. They backfilled dirt behind the timbers. On February 15, 2005, Candace sent a letter to the Buckleys, stating:

The recent spring thaw and rains have demonstrated that the new house you have recently completed is going to drastically effect the water run-off to our property. If you will recall, in 1997 the addition of the outbuilding at your north property line, immediately adjacent to our servient property, caused considerable damage to our property. It was our hope that when you began the construction of your new house, at that same location, that the water run-off to our property would be considered. Instead, you have directed the water from your new home directly at our servient property. There has already been damage caused by such water flow this spring.
We are asking that you voluntarily take such neighborly measures as to divert the water away from our property. We do not wish to spend additional resources on repairs only to have them washed away during the next rainfall.
We appreciate your prompt attention to remedy this situation before more damage is ...

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