Friday, December 01, 2006

Curbing the Urge to Fence

Newport v. Dulin, No. 6-669/05-1233 (Iowa Ct. App. Nov. 30, 2006).

(Note. This case makes perfect sense if one draws a picture).

The Newport family owns land in Cedar Rapids and has so for many years, operating a greenhouse and florist business on the premises. Part of the land was platted, including what came to be known as Newport's Third Addition.

Access to lots 1 and 2 of Newport's Third Addition was by a driveway running from Wilson Avenue SW along the boundary of Newport's First and Third Additions.

Dulin purchased the business from the Newports and a part of the property, which included the driveway. The title opinion furnished to Dulin at that time noted the existence of a utility easement but did not mention the access easement that had been described in the final plat of Lot 1 in Newport's Fourth Addition and other documents.

Dulin erected a fence that blocked the driveway in 2002, and the Newports sued to enjoin Dulin from blocking their access to the property. The District Court found that the Newports had an express access easement by virtue of the language in the plats, and that they also had easements by necessity and implication to part of the driveway.

The Court of Appeals held that an easement granted in a plat (as this surely was) has the same effect as if explicitly granted in a deed or conveyance. Turning to the issue of an easement of implication or necessity, the record showed ample evidence of a preexisting use that manifestly was intended to be a permanent use that was beneficial to the enjoyment of the retained land. In addition an easement of necessity was found based on the general layout of the land and in the difficulty of accessing it absent an extremely costly construction job.


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