IN THE COURT OF APPEALS OF IOWA
No. 19-0480 Filed November 4, 2020
JOSHUA BOLKEMA and NATALIE BOLKEMA, Plaintiffs-Appellees,
vs.
CASEY SMITH, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart Werling, Judge.
The defendant appeals the district court’s rulings on the plaintiffs’ petition
for injunctive relief. AFFIRMED.
JohnPatrick Brown of Nash Nash Bean & Ford, LLP, Geneseo, Illinois, for
appellant.
Patrick L. Woodward of McDonald, Woodward & Carlson, P.C., Davenport,
for appellees.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ. 2
VAITHESWARAN, Presiding Judge.
Joshua and Natalie Bolkema owned real estate adjoining land owned by
Casey Smith. The only access from the Bolkemas’ property to the main road was
a thirty-three-foot easement along the north side of Smith’s property, recorded
decades earlier. A private, paved road in the center of the easement provided a
“[s]traight-through shot” to the main road.
Shortly before the Bolkemas purchased the property, Smith installed gates
at both ends of the private road as well as removable speed bumps along the road.
Although her property was already fenced in, she installed additional fencing along
the paved portion of the easement.1
The Bolkemas sued Smith alleging she “obstructed the easement,”
depriving them of free access to their property. They sought a permanent
injunction preventing Smith “from interfering with [their] use of the easement and
private roadway . . . and from placing any obstruction in, on, or along said
easement.” They also alleged the impediments amounted to a nuisance, entitling
them to damages. Smith answered and filed counterclaims. Following a bench
trial, the district court granted the Bolkemas’ request for a permanent injunction
and ordered the obstructions removed within thirty days. No money judgment was
entered on the nuisance claim, and the court denied Smith’s counterclaims. The
court also denied Smith’s motion for enlarged findings and conclusions. Smith
appealed.
1Smith testified there had been fencing there and she simply re-installed it. She conceded the fence was within the thirty-three-foot easement. 3
Smith preliminarily contends “the gates and side fences[2] operate as part of
a fence governed by Iowa Code chapter 359A” (2018). In her view, the district
court “had no subject-matter jurisdiction to decide the Bolkemas’ claims because
the fence viewers were not consulted” pursuant to Iowa Code section 359A.22.
Chapter 359A, titled “Fences,” “create[s] two circumstances in which a
landowner is required to erect and maintain a partition fence.” Longfellow v.
Sayler, 737 N.W.2d 148, 153 (Iowa 2007). First, a landowner must “erect and
maintain a partition fence when an agreement is reached between adjoining
landowners.” Id. (citing Iowa Code § 359A.12). Second, an adjoining landowner
may “request another adjoining landowner to maintain a partition fence.” Id. “If a
conflict arises between the two adjoining landowners, the Code provides that one
landowner may request the fence viewers to determine the controversy.” Id.
The district court found the statute inapplicable, reasoning “it is not a
partition fence that is in controversy.” We agree. Neither side challenged the
existence or condition of the fences surrounding Smith’s rectangular-shaped
property. The dispute centered on obstructions placed within the thirty-three-foot
easement, including “additional fencing . . . to restrict [the] Bolkemas’ use to the
hard surface roadway only.” Chapter 359A was not implicated.
Next, Smith argues the end gates and side fences were not nuisances
because Smith has “a right and a duty to build boundary fences” and, in any event,
the side fences “were never properly pled.” She also asserts “the end gates, side
2The “side fences” appear to be a reference to the fence along the paved road within the easement area. 4
fences, and speed bumps [did] not significantly impair the Bolkemas’ use and
enjoyment of the ingress-egress easement and therefore [were] not nuisances.”
In making these arguments, Smith conflates the Bolkemas’ nuisance claim with
their separate claim for injunctive relief. We believe the two claims are distinct.
See Skow v. Goforth, 618 N.W.2d 275, 277–78 (Iowa 2000) (addressing request
for an injunction “from interfering with” use of an easement, and stating, “A party
seeking an injunction must establish (1) an invasion or threatened invasion of a
right, (2) substantial injury or damages will result unless an injunction is granted,
and (3) no adequate legal remedy is available” (citation omitted)); see also Iowa
Code § 657.1 (defining nuisance as “[w]hatever is injurious to health, indecent, or
unreasonably offensive to the senses, or an obstruction to the free use of property,
so as essentially to interfere unreasonably with the comfortable enjoyment of life
or property”); Freeman v. Grain Processing Corp., 895 N.W.2d 105, 120 (Iowa
2017) (stating “[t]he nuisance statute does not supersede common law nuisance,”
which is defined as “an actionable interference with a person’s interest in the
private use and enjoyment of the person’s land”); cf. Wiegmann v. Baier, 203
N.W.2d 204, 207 (Iowa 1972) (citing a reference to a “nuisance fence” in a petition
alleging a violation of a written easement but analyzing the issue under contract
principles rather than nuisance law). As noted, the district court granted injunctive
relief without addressing the Bolkemas’ request for nuisance damages, leading us
to question whether the nuisance issue was preserved for review. See Top of Iowa
Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“[T]his court will
consider on appeal whether error was preserved despite the opposing party’s
omission in not raising this issue at trial or on appeal.”). That said, we believe 5
Smith’s arguments, while mentioning nuisances, in fact take issue with the district
court’s determination that she “interfered with” the Bolkemas’ use of the easement,
a predicate to granting injunctive relief. We will address her arguments in that
context.
We begin with Smith’s assertion that the Bolkemas failed to plead a problem
with the fences. The district court found otherwise, stating they “clearly request[ed]
that Smith be permanently enjoined from placing any obstruction anywhere within
the entire thirty-three foot wide easement.” The pleadings support the court’s
determination. As for Smith’s assertion that she had a right to build “boundary
fences,” she did indeed have that right; however, as discussed, this was not a
“boundary fence” dispute but a dispute concerning additional fencing placed within
the easement. The district court found Smith “wrongfully constricted the 33-foot
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IN THE COURT OF APPEALS OF IOWA
No. 19-0480 Filed November 4, 2020
JOSHUA BOLKEMA and NATALIE BOLKEMA, Plaintiffs-Appellees,
vs.
CASEY SMITH, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart Werling, Judge.
The defendant appeals the district court’s rulings on the plaintiffs’ petition
for injunctive relief. AFFIRMED.
JohnPatrick Brown of Nash Nash Bean & Ford, LLP, Geneseo, Illinois, for
appellant.
Patrick L. Woodward of McDonald, Woodward & Carlson, P.C., Davenport,
for appellees.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ. 2
VAITHESWARAN, Presiding Judge.
Joshua and Natalie Bolkema owned real estate adjoining land owned by
Casey Smith. The only access from the Bolkemas’ property to the main road was
a thirty-three-foot easement along the north side of Smith’s property, recorded
decades earlier. A private, paved road in the center of the easement provided a
“[s]traight-through shot” to the main road.
Shortly before the Bolkemas purchased the property, Smith installed gates
at both ends of the private road as well as removable speed bumps along the road.
Although her property was already fenced in, she installed additional fencing along
the paved portion of the easement.1
The Bolkemas sued Smith alleging she “obstructed the easement,”
depriving them of free access to their property. They sought a permanent
injunction preventing Smith “from interfering with [their] use of the easement and
private roadway . . . and from placing any obstruction in, on, or along said
easement.” They also alleged the impediments amounted to a nuisance, entitling
them to damages. Smith answered and filed counterclaims. Following a bench
trial, the district court granted the Bolkemas’ request for a permanent injunction
and ordered the obstructions removed within thirty days. No money judgment was
entered on the nuisance claim, and the court denied Smith’s counterclaims. The
court also denied Smith’s motion for enlarged findings and conclusions. Smith
appealed.
1Smith testified there had been fencing there and she simply re-installed it. She conceded the fence was within the thirty-three-foot easement. 3
Smith preliminarily contends “the gates and side fences[2] operate as part of
a fence governed by Iowa Code chapter 359A” (2018). In her view, the district
court “had no subject-matter jurisdiction to decide the Bolkemas’ claims because
the fence viewers were not consulted” pursuant to Iowa Code section 359A.22.
Chapter 359A, titled “Fences,” “create[s] two circumstances in which a
landowner is required to erect and maintain a partition fence.” Longfellow v.
Sayler, 737 N.W.2d 148, 153 (Iowa 2007). First, a landowner must “erect and
maintain a partition fence when an agreement is reached between adjoining
landowners.” Id. (citing Iowa Code § 359A.12). Second, an adjoining landowner
may “request another adjoining landowner to maintain a partition fence.” Id. “If a
conflict arises between the two adjoining landowners, the Code provides that one
landowner may request the fence viewers to determine the controversy.” Id.
The district court found the statute inapplicable, reasoning “it is not a
partition fence that is in controversy.” We agree. Neither side challenged the
existence or condition of the fences surrounding Smith’s rectangular-shaped
property. The dispute centered on obstructions placed within the thirty-three-foot
easement, including “additional fencing . . . to restrict [the] Bolkemas’ use to the
hard surface roadway only.” Chapter 359A was not implicated.
Next, Smith argues the end gates and side fences were not nuisances
because Smith has “a right and a duty to build boundary fences” and, in any event,
the side fences “were never properly pled.” She also asserts “the end gates, side
2The “side fences” appear to be a reference to the fence along the paved road within the easement area. 4
fences, and speed bumps [did] not significantly impair the Bolkemas’ use and
enjoyment of the ingress-egress easement and therefore [were] not nuisances.”
In making these arguments, Smith conflates the Bolkemas’ nuisance claim with
their separate claim for injunctive relief. We believe the two claims are distinct.
See Skow v. Goforth, 618 N.W.2d 275, 277–78 (Iowa 2000) (addressing request
for an injunction “from interfering with” use of an easement, and stating, “A party
seeking an injunction must establish (1) an invasion or threatened invasion of a
right, (2) substantial injury or damages will result unless an injunction is granted,
and (3) no adequate legal remedy is available” (citation omitted)); see also Iowa
Code § 657.1 (defining nuisance as “[w]hatever is injurious to health, indecent, or
unreasonably offensive to the senses, or an obstruction to the free use of property,
so as essentially to interfere unreasonably with the comfortable enjoyment of life
or property”); Freeman v. Grain Processing Corp., 895 N.W.2d 105, 120 (Iowa
2017) (stating “[t]he nuisance statute does not supersede common law nuisance,”
which is defined as “an actionable interference with a person’s interest in the
private use and enjoyment of the person’s land”); cf. Wiegmann v. Baier, 203
N.W.2d 204, 207 (Iowa 1972) (citing a reference to a “nuisance fence” in a petition
alleging a violation of a written easement but analyzing the issue under contract
principles rather than nuisance law). As noted, the district court granted injunctive
relief without addressing the Bolkemas’ request for nuisance damages, leading us
to question whether the nuisance issue was preserved for review. See Top of Iowa
Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“[T]his court will
consider on appeal whether error was preserved despite the opposing party’s
omission in not raising this issue at trial or on appeal.”). That said, we believe 5
Smith’s arguments, while mentioning nuisances, in fact take issue with the district
court’s determination that she “interfered with” the Bolkemas’ use of the easement,
a predicate to granting injunctive relief. We will address her arguments in that
context.
We begin with Smith’s assertion that the Bolkemas failed to plead a problem
with the fences. The district court found otherwise, stating they “clearly request[ed]
that Smith be permanently enjoined from placing any obstruction anywhere within
the entire thirty-three foot wide easement.” The pleadings support the court’s
determination. As for Smith’s assertion that she had a right to build “boundary
fences,” she did indeed have that right; however, as discussed, this was not a
“boundary fence” dispute but a dispute concerning additional fencing placed within
the easement. The district court found Smith “wrongfully constricted the 33-foot
easement by placing fencing and other impediments immediately adjacent to the
driveway.” On our de novo review, we discern more than ample support for the
finding.
We turn to Smith’s argument that the installation of gates was an extension
of her right to build boundary fences. The district court found chapter 359A, even
if applicable, did not address the installation of gates in conjunction with fencing.
We agree but, as discussed, we find chapter 359A inapplicable.
We are left with Smith’s assertion that the gates and speed bumps did not
significantly impair the Bolkemas’ use and enjoyment of the easement. The district
court found that Smith “lived at her ranch for over ten years without installing
gates,” and it was “more than mere coincidence that she installed gates only after”
the sellers of land ultimately purchased by the Bolkemas rejected her bid to 6
purchase that land. The court determined Smith installed the gates and speed
bumps “solely to interfere with whoever” purchased the property. The gates, the
court said, iced over in the winter, making them difficult to open, and both the gates
and speed bumps damaged the surface of the private road.
The record supports the district court’s findings. Smith acknowledged no
gates enclosed the easement until after the prior owner of the Bolkemas’ property
passed away and title was transferred to a relative. The concession undermines
her assertion that the gates served “a major utilitarian purpose” of keeping her
“horses on her property.”3 In any event, the Bolkemas testified to multiple ways in
which the gates and speed bumps impeded their use and enjoyment of their
property. They offered digital video recordings to illustrate the problem. On our
de novo review, we are persuaded that injunctive relief was warranted. See
Wiegmann, 203 N.W.2d at 207–09 (affirming the grant of injunctive relief where a
fence installed by the defendant on an easement “effectively barred access by auto
to plaintiffs’ garage and parking areas”); McDonnell v. Sheets, 15 N.W.2d 252, 256
(Iowa 1944) (“[T]o grant the right to so obstruct the driveway with gates, would
rather effectively destroy plaintiffs’ easement.”); cf. Skow, 618 N.W.2d at 277
(concluding plaintiffs failed to show that a fence encroaching three inches onto an
easement would impede their ingress or egress).
Smith raises one final argument unrelated to the Bolkemas’ request for
injunctive relief. She contends “the Bolkemas clearly are operating a business on
their property and it should be enjoined.” The district court was unpersuaded by
3 Smith testified she used her land as a sanctuary for disabled horses. 7
the assertion. The court found “no credible evidence” that Mr. Bolkema performed
“any work through his construction business that relate[d] to use of the easement.”
The court noted that Ms. Bolkema performed “office work” from the home but
stated “[n]one of this conduct impacts the easement.” After denying the claim at
trial, the court reaffirmed the denial on reconsideration. On our de novo review,
we discern support for the court’s findings, and we affirm the denial of Smith’s
request for an injunction.
Smith asks this court to “award attorney fees.” She provides no authority
for an award. Accordingly, we deny the request.
We affirm the district court’s grant of permanent injunctive relief in favor of
the Bolkemas.
AFFIRMED.