IN THE COURT OF APPEALS OF IOWA

No. 3-1198 / 12-1966

Filed March 26, 2014

GLORIA HUTCHINS,

Plaintiff-Appellee/Cross-Appellant,

vs.

LARRY HUTCHINS, Substituted for WILBUR HUTCHINS,

Defendant-Appellant/Cross-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, 

Judge.

Wilbur Hutchins appeals the district court’s ruling in favor of Gloria 

Hutchins in this adverse possession action. AFFIRMED.

Valerie Cramer for Cramer Law, P.L.C., Des Moines, for appellant.

Max Burkey, Des Moines, for appellee.

Considered by Potterfield, P.J., and Doyle and Bower, JJ.
2

POTTERFIELD, P.J.

Wilbur Hutchins appeals,

1

challenging the district court’s ruling in favor of 

Gloria Hutchins in this adverse possession action.2 He asserts Gloria Hutchins 

failed to prove the requisites of an adverse possession claim. We affirm.

I. Background Facts and Proceedings.

In 1977, Joy and Wilbur Hutchins purchased 10.339 acres of land at 

12300 64th Street, Elkhart, Iowa.

In 1987, Joy and Wilbur Hutchins invited their son, Michael; his wife,

Gloria; and the couple’s daughter to move onto the Elkhart property and build a 

home. Gloria and Michael established their residence—a manufactured home3

—on the Elkhart acreage in 1987, where they resided from then on. 

From 1987 and on, Gloria and Michael treated the approximately three 

acres of the Elkhart acreage as their own. Gloria and Michael planted a large 

fenced garden and orchard, erected a two and one-half car garage, poured 

cement sidewalks and a garage apron, and, beginning in 1999, paid real estate 

taxes. Electricity to the home is independent. Gloria and Michael, however, 

shared a driveway with Joy and Wilbur, and their water came from a well shared 

 

1 Wilbur Hutchins died while this action was pending. Larry Hutchins’s motion to 

substitute party was granted by this court on March 5, 2014. For ease of reference we 

will continue to refer to the defendant as Wilbur Hutchins.

2 Though Gloria filed a cross-appeal, she does not raise any independent challenge to 

the court’s ruling. Rather, she asserts this court could affirm on alternate grounds, 

contending she also proved her claim under Iowa Code chapter 650 (2011) (disputed 

corners and boundaries), which was raised in count IV of her amended petition. The 

district court did not address the chapter 650 claim and Gloria did not seek a ruling on 

the claim. “If the court does not rule on an issue and neither party files a motion 

requesting the district court to do so, there is nothing before us to review.” Stammeyer 

v. Div. of Narcotics Enforcement of Iowa Dep’t of Pub. Safety, 721 N.W.2d 541, 548 

(Iowa 2006). Therefore, we do not address the cross-appeal. 

3

In his appellate brief, Wilbur denies Gloria had a home built on the property, stating “it 

was a moveable trailer.” 
3

with Joy and Wilbur. Following Michael’s death in 2005, Gloria continued to 

reside on and maintain the three acres and residence.

On June 21, 2011, Gloria was served with a notice to quit tenancy.

On July 5, 2011, Gloria filed a petition to quiet title to the three acres by 

virtue of adverse possession. She sought and was granted a temporary 

restraining order delaying her eviction. In an amended petition, Gloria also 

sought a prescriptive easement for continued use of the existing shared driveway 

and well, and alleged the boundaries of her property were established by 

acquiescence.4 

Following a trial, the district court ruled in favor of Gloria and ordered that 

title to tax parcel 210-00502-004-000 and locally known as 12300 NE 64th 

Street, Elkhart, be quieted in favor of Gloria Hutchins. In a ruling on Gloria’s 

motion to enlarge or amend, the court also granted an easement by prescription 

for use of the driveway leading to her property and for use of the well.5The court 

found the easements run with the land. 

Wilbur Hutchins6appeals, contending (1) the district court erred in “finding 

plaintiff obtained title to the property by adverse possession”; (2) the plaintiff 

 

4 The trial court docket indicates the plaintiffs consented to the amendment on June 28, 

2012, and the district court allowed the amendment on July 11, 2012.

5

Iowa Code section 564.1, relating to easements, provides:

In all actions hereafter brought, in which title to any easement in 

real estate shall be claimed by virtue of adverse possession thereof for 

the period of ten years, the use of the same shall not be admitted as 

evidence that the party claimed the easement as the party’s right, but the 

fact of adverse possession shall be established by evidence distinct from 

and independent of its use, and that the party against whom the claim is 

made had express notice thereof; and these provisions shall apply to 

public as well as private claims.

6 Both Joy Hutchins and Wilbur Hutchins died while this action was pending. Their son, 

Larry Hutchins, was substituted as appellant. See Iowa Code § 611.20 (“All causes of 
4

“failed to prove the hostile element of adverse possession, which negates 

adverse possession”; (3) the district court erred in “raising the issue the 

defendant gave title to the land to the plaintiff”; (4) the court erred “when it found 

plaintiff and her husband had no duty to tell the defendants of their claim to the 

title of the property”; (5) the “only proof of ownership . . . was the plaintiff’s self

serving oral testimony”; (6) the court erred in finding the plaintiff acted as a true 

owner; (7) “the district court abused its discretion by not only making substantial 

factual errors in the final order[, b]ut also in misquoting supreme court cases as 

the law”: (8) the court erred “when it believed the statements made by the plaintiff 

were true”; (9) the court erred in “grant[ing] a prescriptive easement against 

plaintiff’s [sic] land by adverse possession when the possession was not 

exclusive or hostile”; and (10) the court erred when it found that there was a 

transfer of land title “absent any writing to that effect or any evidence of a transfer 

of land.”

II. Scope and Standard of Review.

This matter was tried in equity; consequently, our review is de novo. Iowa 

R. App. P. 6.907. We give weight to the trial court’s fact findings, especially 

when considering the credibility of witnesses, but we are not bound by them. 

Iowa R. App. P. 6.904(3)(g).

 

action shall survive and may be brought notwithstanding the death of the person entitled 

or liable to the same.”); Id. § 625A.17 (“The death of one or all of the parties shall not 

cause the proceedings to abate, but the names of the proper persons shall be 

substituted, as is provided in such cases in the district court, and the case may 

proceed.”); Iowa R. App. P. 6.109(3) (“If substitution of a party is sought for any reason, 

. . . the person seeking substitution must file a motion for substitution of party with the 

clerk of the supreme court.”). Gloria’s resistance to the motion to substitute requests this 

court order the opening of an estate for Wilbur Hutchins. We affirm the district court, 

maintaining the status quo. Gloria’s request for additional relief should be directed to the 

district court following issuance of procedendo. 
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III. Discussion.

The court determined Gloria proved her claim of adverse possession 

under a claim of right. A party invoking the adverse possession doctrine “must 

establish hostile, actual,[7]open, exclusive and continuous possession, under 

claim of right or color of title for at least ten years.” C.H. Moore Trust Estate v.

City of Storm Lake, 423 N.W.2d 13, 15 (Iowa 1988). Proof of these elements 

must be “clear and positive.” Id.

“A claim of right is evidenced by taking and maintaining property, such as 

an owner of that type of property would, to the exclusion of the true owner; in 

other words, the plaintiff’s conduct must clearly indicate ownership.” Louisa 

Cnty. Conservation Bd. v. Malone, 778 N.W.2d 204, 207 (Iowa Ct. App. 2009).

Wilbur’s several issues on appeal essentially boil down to one—because

Gloria came to the property with permission, her possession and use can never 

satisfy the “hostile” element of either adverse possession or prescriptive 

easement.8 We disagree. 

“Hostility of possession does not imply ill will, but only an assertion of 

ownership by declarations or acts showing a claim of exclusive right to the land.” 

Johnson, 637 N.W.2d at 178 (citing 3 Am. Jur. 2d Adverse Possession § 50, at 

 

7

“Actual possession is the type of possession or control owners ordinarily exercise in 

holding, managing and caring for property of like nature and condition.” Burgess v.

Leverett & Assocs., 105 N.W.2d 703, 706 (Iowa 1960). 

8

In Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001), the supreme court observed:

We consider principles of adverse possession when determining 

whether an easement by prescription has been created. However, the 

concepts of adverse possession and easement by prescription are not 

one and the same. Rather, easement by prescription concerns the use of 

property and adverse possession determines acquisition of title to 

property by possession.

(Citations omitted.) 
6

143 (1986)). Conduct that shows an intention to hold title exclusive of others 

shows hostile possession. Burgess, 105 N.W.2d at 706. In order to show hostile 

possession, a plaintiff must demonstrate conduct showing the “intention to hold 

title exclusive to all other titles or against the world.” Id. The Iowa Supreme 

Court has stated, “It is enough if the person . . . takes and maintains such 

possession and exercises such open dominion as ordinarily marks the conduct of 

owners in general, in holding, managing, and caring for property of like nature 

and condition.” See C.H. Moore Trust, 423 N.W.2d at 15 (citation omitted). And 

“[a]lthough ‘mere use’ is insufficient to establish hostility or claim of right, certain 

acts, including substantial maintenance and improvement of the land, can 

support a claim of ownership and hostility to the true owner.” Malone, 778 

N.W.2d at 208. 

We initially observe the district court found Gloria “to be credible in her 

testimony.” We give deference to the court’s finding as it was in a better position 

to assess her credibility. See Neimann v. Butterfield, 551 N.W.2d 652, 654 (Iowa 

Ct. App. 1996) (“We are keenly aware of the trial court’s superior vantage point to 

make credibility determinations due to its ability to consider firsthand the 

demeanor and appearance of the parties.”).

Upon our de novo review, we agree with the district court Gloria 

established such substantial maintenance and improvement of the land so as to 

establish hostile possession; that is, she proved her “intention to hold title 

exclusive to all other titles or against the world.” Burgess, 105 N.W.2d at 706. 

She and Michael constructed a home on the property and planted an orchard. 

They enclosed a large garden with fencing. They built a two and one-half car 
7

garage on a cement pad and poured cement sidewalks leading to their home. 

They built two decks surrounding the home and planted other trees. Gloria (and 

Michael) exclusively maintained the home and three acres. Beginning in 1999, 

Gloria has paid property taxes.

Wilbur argues the district court improperly injected the concept that the 

property was gifted to Gloria and Michael when the plaintiff did not make that 

claim. This reads too much into the district court’s ruling. The court did not enter 

its ruling on the basis the property was a gift. Rather, the court considered the 

testimony of the witnesses—which included some testimony that Wilbur may 

have intended to gift the property—and found Gloria “entered the premises under 

a good faith belief she had a legal claim to the property” and “with the 

understanding she was the true owner.” Those findings are pertinent to the claim 

that Gloria possessed the property under a claim of right. See Council Bluffs 

Sav. Bank v. Simmons, 243 N.W.2d 634, 636 (Iowa 1976) (discussing 

possession under claim of right); see also Carpenter v. Ruperto, 315 N.W.2d 

782, 786 (Iowa 1982) (noting good faith claim of right is essential to adverse 

possession claim).

With respect to the district court’s ruling concerning prescriptive 

easements, in addition to challenging the “hostility” of Gloria’s possession, Wilbur 

argues Gloria’s shared use of the driveway and well were not exclusive. “Under 

Iowa law, an easement by prescription is created when a person uses another’s 

land under a claim of right or color of title, openly, notoriously, continuously, and 

hostilely for ten years or more.” Johnson, 637 N.W.2d at 178. But, “use need 
8

not be exclusive.” Id. at 179. “Rather, a claimant’s possession ‘need only be of a 

type of possession which would characterize an owner’s use.’” Id.

We conclude there is clear evidence supporting the trial court’s findings of 

adverse possession and prescriptive easement. We therefore affirm.

AFFIRMED.