Iowa Appeals Court Upholds Winneshiek County Adverse Possession Case

Iowa case law summary by Attorney Richard Clem: Adverse possession.

Jerry Westcott and Darlene Westcott v. Roger Malli. Iowa adverse possession

In 1988, Jerry and Darlene Westcott purchased 80 acres from Roger Malli. The property was located in Winneshiek County, Iowa, and was described and the south half of the southwest quarter of a particular section. At the time, Malli also owned a 2.9 acre parcel described as a particular lot within in the northwest quarter of the southwest quarter. According to these descriptions, the 2.9 acre parcel would be located north of the 80 acre parcel, and the two properties would be distinct.

The 80 acre parcel was listed with the real estate company of Erickson-Prohaska, with Dick Cummings being the agent. No survey was ever done, but Cummings told the buyers that the property being sold was everything within the fence line. This included the 2.9 acre parcel. Cummings also gave them a plat map, which was highlighted and included the 2.9 acre parcel. The Westcotts later testified that they thought they had bought the disputed piece of land, and they made improvements. For example, they replaced and repaired the fence, built gates, mowed, sprayed, removed trees and a shed, and improved a road. They grazed livestock on that land. Over the years, they had leased out the entire property, and used the smaller parcel to access other pastures.

The original sale included a pole barn that Malli had constructed in 1978. Most of this structure was on the 80 acres, but about 46 inches extended into the 2.9 acre parcel.

In 1993, Mali received a deed to the 2.9 acre parcel, which corrected an earlier deed.

In 2011, the Westcotts found out from the Farm Service Agency that they didn't have legal title to the 2.9 acres. They filed a lawsuit in the Iowa District Court for Winneshiek County to obtain title through adverse possession. Malli filed a counterclaim alleging that the Westcotts were trespassing. A trial was held, and Judge Richard D. Stochl held that the Westcotts had proven legal title by adverse possession. Dissatisfied with this outcome, Malli appealed to the Iowa Court of Appeals.

Malli first argued that the trial court should not have admitted into evidence a statement by the real estate agent, Richard Cummings, about the fence line. Cummings had since died. The trial court had allowed Jerry Wescott to testify what Cummings had told him. The trial court had allowed this evidence as relevant to Wecott's belief, and the Court of Appeals agreed that this was proper.

On the issue of adverse possession, the Court of Appeals first noted the elements of an adverse possession case. The party asserting adverse possession "must establish hostile, actual, open, exclusive and continuous possession, under claim of right or color of title for at least ten years.” For this proposition, the court cited Garrett v. Huster, 684 NW 2d 250 (Iowa 2004). The court noted that "mere use" is not enough, but making substantial improvements or maintenance does qualify. The court pointed out that the Wescotts had maintained the property by improving the barn, fencing, removing a shed, grading the road, and mowing and spraying.

The possession must be "hostile," and Malli claimed that he had given permission for them to use the disputed plot. But since the Westcotts had denied that this conversation took place, the Court of Appeals deferred to the trial court's resolution of this factual dispute.

The Court also examined the other elements and determined that they had been met. The possession was under claim of right and continuous since 1988. It was open and exclusive, and the court noted that Malli had not even ventured onto the land over the years.

For another recent Iowa adverse possession case, see Hutchins v. Hutchins, decided on March 26, 2014.

No. No. 3-1165 / 13-0491 (Iowa Ct. App. Mar. 12, 2014).

Summary of case at Iowa State Univ..

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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