Michael McKee and Diane McKee v. City of Council Bluffs, Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-1117
Filed June 15, 2022

MICHAEL MCKEE AND DIANE MCKEE,
Plaintiff-Appellants,

vs.

CITY OF COUNCIL BLUFFS, IOWA,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Michael

Hooper, Judge.

Michael and Diane McKee appeal an adverse summary judgment ruling.

REVERSED AND REMANDED.

Dane J. Schumann and Steven P. Wandro of Wandro & Associates, PC,

Des Moines, for appellants.

Sara E. Bauer, Assistant City Attorney, Council Bluffs, for appellee.

Heard by Vaitheswaran, P.J., and Tabor and Badding, JJ.
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BADDING, Judge.

Our appellate courts are no strangers to drainage disputes between

neighboring landowners. But this case is a twist on the typical scenario because

of an express easement requiring Michael and Diane McKee, the owners of lower-

lying land, to install and maintain a drainage easement for water flowing from

higher land owned by the City of Council Bluffs (City). The McKees brought suit

against the City for relief relating to that easement. The district court granted

summary judgment in favor of the City, and the McKees appeal. Because we find

summary judgment was inappropriate on the bases cited by the court, we reverse

and remand for further proceedings.

I. Background Facts and Proceedings

In 1987, the McKees purchased real property situated north of and abutting

Simms Avenue. Simms Avenue is now owned by the City. According to the

amended petition, the McKees’ home is located “down a lane a few hundred yards

away from Simms Avenue” and, when they purchased the property, “a small

amount of drainage from Simms Avenue ran into a small ditch parallel with the

McKees’ lane that accessed their home” and this “drainage channel continued

North, passing under the McKee’s driveway and then meandering downstream

until crossing the McKees’ Northern property line.”

Beginning in early 1992, the McKees entered into a purchase agreement

and various addendums to sell a southern strip of their property abutting the north

side of Simms Avenue to Duggan Land Development, Inc. (Duggan)—which

Duggan would develop as a single-family subdivision called Northern Oaks—with

the McKees retaining a right of way to Simms Avenue for their driveway. The
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portion of land attributable to the McKees’ pre-existing driveway would ultimately

come to be known as Lot 7. In March, Duggan and the City entered into a

subdivision agreement concerning the final plat consisting of the twelve-lot

subdivision. The agreement required Duggan to complete certain steps before the

City would issue final plat approval.

On April 16, the McKees deeded the strip of land to Duggan. The same

day, Lot 7, “as shown in a survey drawing by Paul M. Kline dated April 7, 1992,”

was deeded back to the McKees by Duggan. The following is a portion of the Kline

survey that was referenced in the deed:
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As the image demonstrates, the striped portion of Lot 7, just east of the “existing

drive,” is a “PRIVATE 10’ STORM DRAINAGE EASEMENT,” and the survey

provides: “THIS DRAINAGE EASEMENT AND DRAINAGE SYSTEM IS TO BE

INSTALLED AND MAINTAINED BY THE OWNER AND HIS OR HER ASSIGNS

OF LOT 7 OF NORTHERN OAKS SUBDIVISION.”

The McKees have experienced drainage problems over the years. In

October 1992, the McKees filed a claim with the City regarding drainage issues on

their property, complaining the paving of Simms Avenue changed their drainage

and caused problems with flooding and silting. The City responded “the drainage

in this area” was governed by agreements between the McKees and Duggan. In

March 1993, the McKees’ legal counsel wrote to the City and essentially

challenged the existence of an easement and their responsibility to maintain the

drainage system on Lot 7. The McKees requested the City to maintain the storm

sewer. The City responded that the owner of Lot 7 was responsible for maintaining

the system. In 2001, despite the fact that “a storm drainage system was installed

in th[e] easement on or about the year of 1997,” the owner of Lot 8 threatened

legal action against the McKees over the inadequacy of the system and its state

of disrepair. The McKees apparently had additional work done in the area to

remedy the issue, for which the owner of Lot 8 provided the McKees with some

financial assistance.

Ultimately, in August 2020, the McKees commenced this litigation against

the City. In their petition, the McKees essentially asserted they never “agree[d] to

maintain any easement on Lot 7” and, due to the subdivision improvements and

infrastructure, they experience flooding and erosion from drainage. The McKees
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alleged the City is the dominant estate holder of any easement on Lot 7 and the

continued flowage path of drainage across the remainder of their property. The

McKees sought equitable relief in the form of mandamus and declaratory relief on

their claims that the City is responsible for repairing and maintaining the easement

and remainder of their property. The McKees also alleged the drainage on their

property amounts to a private and pure nuisance and the invasion of their property

is an unconstitutional taking.

In time, the City filed a motion for summary judgment. In its ruling, the court

found the McKees’ dealings with Duggan resulted in an express easement on

Lot 7, which placed the burden of maintenance on the owners and assigns of Lot 7

rather than on the dominant estate holder. The court also found Lot 7 is dominant

to the remainder of the McKees’ property and, because the McKees own both, they

are also responsible for maintaining the portion of their property north of Lot 7. The

court accordingly found the City was entitled to judgment as a matter of law on the

McKees’ claim for repairs and maintenance by the City in counts one and two of

the petition. As for the nuisance claims in counts three and four, the court found

those claims were time-barred, as was the unconstitutional taking claim in count

five. So the court entered summary judgment in favor of the City. The McKees

appeal, confining their claims to the court’s ruling on counts two, three, and four.

II. Standard of Review

“The standard of review for district court rulings on summary judgment is for

correction of errors of law.” Kunde v. Est. of Bowman, 920 N.W.2d 803, 806 (Iowa

2018). Summary judgement is only appropriate when the moving party has shown

“that there is no genuine issue as to any material fact and that the moving party is
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entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). “In determining

whether a grant of summary judgment was appropriate, we examine the record in

the light most favorable to the nonmoving party, drawing all legitimate inferences

that may be drawn from the evidence in his or her favor.” Homan v. Branstad, 887

N.W.2d 153, 163–64 (Iowa 2016). Summary judgment is appropriate “if the record

reveals only a conflict concerning the legal consequences of undisputed facts.”

Nelson v. Lindaman, 867 N.W.2d 1, 6 (Iowa 2015) (quoting Wallace v. Des Moines

Indep. Cmty. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008)).

III. Analysis

A. Count Two—Cleaning and Maintenance

In reviewing the propriety of summary judgment on count two, we begin with

a little housekeeping. The McKees forwarded two separate claims seeking a

determination that the City was required to clean and maintain the drainage

easement. Count one sought relief requiring the City, as the dominant estate

holder, to repair and maintain the easement on the Lot 7 portion of their property.

Count two sought the same relief, but as to the drainage path that continues on

the portion of their property north of Lot 7. The district court granted summary

judgment on both counts and denied the McKees their requested relief.

The McKees do not challenge the entry of summary judgment on count one

relating to Lot 7. Because “our review is confined to issues presented on appeal

taken from the . . . judgment,” the entry of summary judgment on count one serves

as a final adjudication on the issue of whether the City is required to clean and

maintain the easement on Lot 7. See Helland v. Yellow Freight Sys., Inc., 204

N.W.2d 601, 605 (Iowa 1973); accord Feld v. Borkowski, 790 N.W.2d 72, 78 (Iowa
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2010) (“Our obligation on appeal is to decide the case within the framework of the

issues raised by the parties. Consequently, we do no more and no less.” (internal

citation and footnote omitted)).

The City argues this is the end of the inquiry for count two because the

“McKees have an express easement obligation concerning . . . installing and

maintaining the drainage system; to separate this obligation from the . . . water

passing to the remainder of McKees’ own property is not sound law as proposed

by McKees.” The McKees say that with this argument, the City is basically

asserting “it can dump all the water it wants down Lot 7 and into the McKees

homestead without any consequence whatsoever.” According to the McKees, the

distinction between counts one and two is critical in rejecting that notion because

who is responsible for Lot 7 under count one is governed by an express easement,

while who is responsible for the remainder of the McKees’ property under count

two is not.

Dialing in on this argument, the McKees maintain the district court failed to

account for the merger doctrine as it relates to Lot 7 and the northern part of their

property. We agree that when Lot 7 was deeded back to the McKees and they

became owners of both properties, they merged and any easement between Lot 7

and the northern property was extinguished. See Gray v. Osborn, 739 N.W.2d

855, 862 (Iowa 2007); Tamm, Inc. v. Pildis, 249 N.W.2d 823, 837 (Iowa 1976).

This is because “one has no need of an easement over one’s own property.”

Campbell v. Waverly Tire Co., No. 02-1948, 2003 WL 23008846, at *4 (Iowa Ct.

App. Dec. 24, 2003). So, based on the merger doctrine, the McKees are correct
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that Lot 7 is not dominant to the northern property, and the court’s entry of

summary judgment on that basis was legal error.

True, the McKees are responsible for maintaining the express easement on

Lot 7. But Simms Avenue is dominant to both Lot 7 and the north portion of the

property. According to the district court, the McKees are only responsible for Lot 7

because the documents creating the express easement on that lot overruled the

general rule that the easement holder is responsible for repairing and maintaining

the easement. See Koenigs v. Mitchell Cnty. Bd. of Supervisors, 659 N.W.2d 589,

594 (Iowa 2003). What lies beyond Lot 7 on the northern portion of the McKees’

property and who is responsible for it remains a genuine issue of material fact

subject to legal underpinnings the district court did not address.1 Cf. Halsrud v.

Brodale, 72 N.W.2d 94, 97–98 (Iowa 1955) (stating “an easement, whether created

by written grant, implication, or prescription,” cannot be “increased or extended

without the consent of the owner of the servient tenement”). Having concluded the

City was not entitled to judgment as a matter of law on the basis that the district

1 In district court, the McKees maintained the drainage path on the northern
property has always been a natural easement servient to Simms Avenue subject
to general easement principles. See, e.g., Ditch v. Hess, 212 N.W.2d 442, 448
(Iowa 1973) (“The general principle of law is ‘that the owner of the upper or
dominant estate has a legal and natural easement in the lower or servient estate
for the drainage of surface waters, that the natural flow or passage of the waters
cannot be interrupted or prevented by the servient owner to the detriment or injury
of the dominant proprietor . . . and that the owner of the dominant estate may cast
an additional quantity of surface water upon the servient estate; if in so doing, he
does not thereby do substantial damage to the servient estate.’” (citation omitted)).
They also claimed it was a prescriptive easement and lack of contiguousness
between a dominant estate and a prescriptive or natural drainage easement does
not cut off the dominant estate’s responsibility to maintain. Cf. Nixon v. Welch, 24
N.W.2d 476, 477 (Iowa 1946) (finding dominant estate holder had a drainage
easement through a neighbor’s property, under a county road, and into the servient
landowner’s ditch).
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court determined it was, we reverse the entry of summary judgment on count two

and remand for further proceedings.2

B. Counts Three and Four—Nuisance

The McKees challenge the district court’s entry of summary judgment on

their nuisance claims on statute-of-limitations grounds. In resisting summary

judgment, the McKees asserted “the statute of limitations bars only those damages

that accrue beyond five years from the date of the suit’s filing,” and the damage to

their property is recurrent “with every significant rain event.” As such, the McKees

argued the continuing nuisance entitled them to relief for damages dating back five

years from the filing of their petition. The City responded the McKees failed to

prove any damages that are recurrent and the nuisance was caused by the

McKees’ failure to maintain the easement for more than two decades.

2 We note the City’s motion for summary judgment on count two was also based
on statutes of limitations relating to injuries and improvements to property. See
Iowa Code § 614.1(4), (11)(a)(2), (3) (2020). The district court did not address
whether the claim was time-barred, and the City does not pursue that avenue on
appeal. Although we have discretion to affirm on an alternative ground that was
urged below, State ex rel. Dickey v. Besler, 954 N.W.2d 425, 432 (Iowa 2021), we
decline to do so here because the City does not ask us to. See Kraklio v. Simmons,
No. 16-1392, 2017 WL 4049488, at *2 n.2 (Iowa Ct. App. Sept. 13, 2017), aff’d,
909 N.W.2d 427, 429 (Iowa 2018) (“We express no opinion on the alternative
grounds for summary judgment . . . . Those issues were not briefed or argued on
appeal and may be decided by the district court on remand.”). We also reject the
City’s suggestion that summary judgment on count two was appropriate because
mandamus “is not to be used to establish rights but to enforce rights that have
already been established.” Beelon v. Monroe Cnty., 577 N.W.2d 877, 879 (Iowa
Ct. App. 1998). Although the court didn’t rule on this issue, the City did make the
argument in their summary judgment motion and on appeal. Even so, we do not
believe summary judgment should be granted on that ground because the McKees
are not necessarily pursuing mandamus relief to “establish rights,” but instead to
enforce an obligation they contend arises by operation of law, for example by
prescription. And the McKees also pursued declaratory relief in count two, which
allows them to pursue a declaration of rights and legal relationships between the
parties. See Iowa R. Civ. P. 1.1101.
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In determining whether summary judgment was appropriate, the district

court considered “whether the nuisance is permanent and subject to one action or

whether the nuisance is ‘temporary and abatable’ and thus allowing for successive

actions to lie.” The court found neither the extent of damage nor cause of injury

had changed so the nuisance is permanent and subject to only one action, for

which the limitations period has expired.

We recently explained:

“Whether an injured party is entitled to bring successive
actions for damages or must seek compensation for all injuries in one
suit depends on the nature of the injury, and to some degree, the
nature of the nuisance.” K & W Elec., Inc. v. State, 712 N.W.2d 107,
118 (Iowa 2006). “[W]here the wrongful act is continuous or
repeated, so that separate and successive actions for damages
arise, the statute of limitations runs as to these latter actions at the
date of their accrual, not from the date of the first wrong in the series.”
Hegg v. Hawkeye Tri-C[n]ty. REC, 512 N.W.2d 558, 559 (Iowa
1994). On the other hand, when an injury is considered to be
permanent, the statute of limitations begins to run at the time of the
first injury. K & W Elec., 712 N.W.2d at 118–19.
....
The term “permanent” does not refer solely to the structure or
object causing the nuisance. Harvey [v. Mason City & Ft. Dodge Ry.
Co.], 105 N.W. [958,] 961 [(Iowa 1906)]. We must also consider “the
character of the injury produced by it.” Id. The Iowa Supreme Court
has stated:
In other words, the structure or thing producing the
injury may be as permanent and enduring as the hand
of man can make it, yet if the resulting injury be
temporary or intermittent, depending on future
conditions which may or may not arise, the damages
are continuing, and successive actions will lie for
successive injuries.
Id.; see also Archer [v. J.S. Compton, Inc.], 30 N.W.2d [92,] 96 [(Iowa
1947)]; Thompson v. Ill. Cent. Ry. Co., 179 N.W. 191, 195 (Iowa
1920); City of Ottumwa v. Nicholson, 143 N.W. 439, 443 (Iowa 1913);
Hughes v. Chicago, B. & Q. Ry. Co., 119 N.W. 924, 926 (Iowa 1909).
A nuisance may be considered to be continuing if it is
temporary and subject to abatement. See Bennett v. City of Marion,
93 N.W. 558, 559 (Iowa 1903). In a case involving noxious and
offensive odors from a hog confinement facility, the Iowa Supreme
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Court found the nuisance was permanent because there was no
evidence the defendant “can or will abate the nuisance in the future”
due to a lack of technology to “solve the odor problem.” Weinhold v.
Wolff, 555 N.W.2d 454, 463 (Iowa 1996). The court determined
abatement of the nuisance could be accomplished only by closing
the facility, a result it found neither equitable nor practical. Id.

Dvorak v. Oak Grove Cattle, L.L.C., No. 18-1624, 2019 WL 3729469, at *2–3 (Iowa

Ct. App. Aug 7, 2019) (first alteration in original), further review denied (Oct. 9,

2019).

Here, the City had the burden to prove damages to the McKees’ property

were permanent, rather than temporary, and not abatable. Id. at *3. The City’s

own director of public works opined, “Based on more recent best practices, a

solution could be developed . . . .” In an engineering report, the McKees’ expert

proposed such a “drainage channel repair and improvement project.” Although the

storm water collection system as is could “be characterized as a permanent

structure, its construction date is not the determinative factor”; we also look to

whether injuries are recurring. Anderson v. Yearous, 249 N.W.2d 855, 860 (Iowa

1977). In the case before us, viewing the record in the light most favorable to the

McKees, the erosion of the McKees’ channel has been continuous. It could

certainly be repaired and is therefore abatable and not permanent. On our review,

we find the City failed to meet its burden to “show the damage to the [McKees’]

property could not be cleaned up or abated.” Dvorak, 2019 WL 3729469, at *3.

So we find the grant of summary judgment on the nuisance claims on the basis

that they are barred by the statute of limitations was legal error.

As to counts three and four, however, the City specifically asks us to affirm

on alternative grounds not relied on by the district court. First, they repeat their
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argument that any nuisance was created by the McKees’ failure to maintain the

easement on Lot 7. But, as we determined in relation to count two, what lies

beyond Lot 7 and who is responsible for it remains a genuine issue of material fact

subject to legal underpinnings the district court did not address. Even if the

McKees maintained the easement on Lot 7 pristinely, the drainage from Simms

Avenue through Lot 7 and onto the north property could still be a nuisance

depending on the determination of who is responsible under count two. So we find

summary judgment is not appropriate on this basis.

The City also argues it “is immune from the nuisance claims based on

negligence.” In support of this assertion, it cites Iowa Code section 670.4(1)(h).

But immunity under this section 670.4(1)(h) as to claims relating to “negligent

design or specification, negligent adoption of design or specification, or negligent

construction or reconstruction of a public improvement” is only conferred if the

improvement “was constructed or reconstructed in accordance with a generally

recognized engineering or safety standard, criteria, or design theory in existence

at the time of construction or reconstruction.” True, the City’s director of public

works authored an affidavit stating the improvement was constructed “in conformity

with the standards at the time.” On the other hand, the McKees’ expert opined

good and standard engineering practices were not followed in constructing the

public improvements. So, at the very least, genuine issues of material fact remain

on the issue of immunity precluding the entry of summary judgment on this basis.

As such, we reverse and remand on these counts for further proceedings.
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IV. Conclusion

We reverse the entry of summary judgment on counts two, three, and four

and remand for further proceedings.

REVERSED AND REMANDED.