dominant property

On April 1, 1977, plaintiffs Will and Jean Brown purchased land designated as parcel B from the Christensens. Parcel B is adjacent to and north of land designated as parcel A owned by defendants Fred and Hattie Voss. Access to parcel B is from the south by means of a road that crosses several parcels including parcel A. The roadway easement across parcel A arose by express grant to the Christensens to provide access to parcel B. On July 31, 1977, the Browns purchased from the Rylanders the contiguous tract designated as parcel C north of parcel B. Parcel C was not a dominant estate with respect to the easement across parcel A. The Browns plan to build a residence that would straddle the property line between parcels B and C. The Browns began clearing parcels B and C in November 1977. They performed most of the preparation of the land for construction during the following spring and summer. To the existing easement road the Browns connected a new road that they had built across parcels B and C. After traversing parcel B, the new road crosses the line between parcels B and C and then loops back onto parcel B. The Browns have used the road in connection with their construction activities. In February and March of 1978, the Vosses erected a chain link fence along the side of the easement road. The parties stipulated that the fence was located upon the 16-foot-wide easement. Sometime in 1978, the Vosses placed obstructions on the easement road. In March 1979, the Browns sought damages and to enjoin the Vosses from interfering with their use of the easement. The Vosses counterclaimed, seeking damages for trespass and an injunction to stop the Browns from using the easement road to gain access to parcel C. Before trial, the parties agreed to relocate the easement. The trial court's order reflected this agreement by declaring that the plaintiffs have an easement of record. It consists of a strip of land 16 feet in width immediately west of the permanent chainlink fence for ingress and egress from the property of plaintiffs. The trial court denied the injunction requested by the Vosses. It ruled that the easement may be used for ingress to and egress from parcel C as long as the properties are developed and used solely for the purpose of a single family residence. The Vosses appealed from the judgment denying their counterclaim for an injunction to the Court of Appeals of Washington, Division Two.

In September 1994, Gerald and Joan Girres applied to the Kossuth County Board of Supervisors for establishment of an agricultural area that would include land they owned as well as property owned by Mike Girres, Norma Jean Thul, Gerald Thilges, Shirley Thilges, Thelma Thilges, Edwin Thilges, Ralph Reding, Loretta Reding, Bernard Thilges, Jacob Thilges, John Goecke, and Patricia Goecke. The real property involved consisted of 960 acres. On November 10, 1994, the Board denied the application after finding that the policy in favor of agricultural land preservation was not furthered by the designation because there were no present or foreseeable nonagricultural development pressures in the area. The Board also found that the Agricultural Area designation and the nuisance protections provided therein would have a direct and permanent impact on the existing and long-held private property rights of the adjacent property owners. It concluded that the policy in favor of agricultural land preservation was outweighed by the policy in favor of the preservation of private property rights. Two months later, in January 1995, the applicants submitted a new application that the Board approved by a 3-2 vote, one of which was based on the flip of a nickel. In granting the designation, the Board found that the application to create the agricultural area designation complied with Iowa Code section 352.6. The Board also found that the adoption of the proposed agricultural area was consistent with the purposes of Chapter 352. In April 1995, several neighbors of the new agricultural area, including Clarence and Caroline Bormann and Leonard and Cecelia McGuire, filed a writ of certiorari and declaratory judgment action in district court against the Board and individual board members Joe Rahm, Al Dudding, Laurel Fantz, James Black, and Donald McGregor. The neighbors challenged the Board's action on constitutional grounds, including violations of their inalienable right to protect property under the Iowa Constitution and deprivations of property without due process or just compensation under both the federal and Iowa Constitutions, as well as on res judicata and arbitrary and capricious grounds. Based on stipulated facts, memoranda, and oral argument, the district court determined that the Board's action was arbitrary and capricious because one Board member voted on the basis of a flipped coin, and this was the only ground on which the court ruled for the neighbors. The court rejected all of the neighbors' other arguments. Later, the neighbors filed an Iowa Rule of Civil Procedure 179(b) motion asking the court to clarify its ruling. Meanwhile, the Board corrected the arbitrary and capricious infirmity in its November 1995 vote, after which the neighbors sought and received a certification of appeal from this court.

On September 5, 1906, title to a tract of land at Brier Neck in Gloucester was registered in the name of Luce, from whom it soon passed to Shackelford. The tract was bounded northerly by a line through a pond near Thatcher Road, easterly by other land, southerly by the Atlantic Ocean, and westerly by Witham Road. The northerly part including what became lot D was low and marshy, while the southern part rose to a hill and slope suitable for summer residences. In 1907, the land south of Thatcher Road was divided into about a hundred building lots. Between July 8, 1907, and January 23, 1923, almost all these lots were sold by Shackelford with uniform restrictions limiting each to one dwelling house costing at least $2500 and prohibiting outbuildings with privies without consent. On June 15, 1923, the remaining unsold land south of Thatcher Road was conveyed to J. Richard Clark subject to similar restrictions. A revised plan in 1919 divided the northerly marshy land into parcels C, D, and E. On January 23, 1923, Shackelford conveyed these parcels to Robert C. Clark subject to restrictions allowing only one dwelling house per parcel costing at least $2500 unless otherwise approved. On February 18, 1933, Robert C. Clark conveyed the larger part of lot D to defendant Van Dam subject to the restrictions insofar as they remained in force. The defendants erected a large building on lot D for selling ice cream and dairy products and operating as a common victualler. The plaintiffs, each owning a lot south of Thatcher Road with a summer residence, brought suit in Middlesex County seeking an injunction against the defendants for violating the restrictions.