IN THE COURT OF APPEALS OF IOWA

No. 21-1117

Filed June 15, 2022

MICHAEL MCKEE AND DIANE MCKEE,

Plaintiff-Appellants,

vs.

CITY OF COUNCIL BLUFFS, IOWA,

Defendant-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Michael 

Hooper, Judge.

Michael and Diane McKee appeal an adverse summary judgment ruling. 

REVERSED AND REMANDED.

Dane J. Schumann and Steven P. Wandro of Wandro & Associates, PC, 

Des Moines, for appellants.

Sara E. Bauer, Assistant City Attorney, Council Bluffs, for appellee.

Heard by Vaitheswaran, P.J., and Tabor and Badding, JJ.
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BADDING, Judge.

Our appellate courts are no strangers to drainage disputes between 

neighboring landowners. But this case is a twist on the typical scenario because 

of an express easement requiring Michael and Diane McKee, the owners of lowerlying land, to install and maintain a drainage easement for water flowing from 

higher land owned by the City of Council Bluffs (City). The McKees brought suit 

against the City for relief relating to that easement. The district court granted 

summary judgment in favor of the City, and the McKees appeal. Because we find 

summary judgment was inappropriate on the bases cited by the court, we reverse 

and remand for further proceedings. 

I. Background Facts and Proceedings

In 1987, the McKees purchased real property situated north of and abutting 

Simms Avenue. Simms Avenue is now owned by the City. According to the 

amended petition, the McKees’ home is located “down a lane a few hundred yards 

away from Simms Avenue” and, when they purchased the property, “a small 

amount of drainage from Simms Avenue ran into a small ditch parallel with the 

McKees’ lane that accessed their home” and this “drainage channel continued 

North, passing under the McKee’s driveway and then meandering downstream 

until crossing the McKees’ Northern property line.” 

Beginning in early 1992, the McKees entered into a purchase agreement 

and various addendums to sell a southern strip of their property abutting the north 

side of Simms Avenue to Duggan Land Development, Inc. (Duggan)—which 

Duggan would develop as a single-family subdivision called Northern Oaks—with 

the McKees retaining a right of way to Simms Avenue for their driveway. The 
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portion of land attributable to the McKees’ pre-existing driveway would ultimately 

come to be known as Lot 7. In March, Duggan and the City entered into a 

subdivision agreement concerning the final plat consisting of the twelve-lot 

subdivision. The agreement required Duggan to complete certain steps before the 

City would issue final plat approval. 

On April 16, the McKees deeded the strip of land to Duggan. The same 

day, Lot 7, “as shown in a survey drawing by Paul M. Kline dated April 7, 1992,” 

was deeded back to the McKees by Duggan. The following is a portion of the Kline 

survey that was referenced in the deed:
4

As the image demonstrates, the striped portion of Lot 7, just east of the “existing 

drive,” is a “PRIVATE 10’ STORM DRAINAGE EASEMENT,” and the survey 

provides: “THIS DRAINAGE EASEMENT AND DRAINAGE SYSTEM IS TO BE 

INSTALLED AND MAINTAINED BY THE OWNER AND HIS OR HER ASSIGNS 

OF LOT 7 OF NORTHERN OAKS SUBDIVISION.” 

The McKees have experienced drainage problems over the years. In 

October 1992, the McKees filed a claim with the City regarding drainage issues on 

their property, complaining the paving of Simms Avenue changed their drainage 

and caused problems with flooding and silting. The City responded “the drainage 

in this area” was governed by agreements between the McKees and Duggan. In 

March 1993, the McKees’ legal counsel wrote to the City and essentially 

challenged the existence of an easement and their responsibility to maintain the 

drainage system on Lot 7. The McKees requested the City to maintain the storm 

sewer. The City responded that the owner of Lot 7 was responsible for maintaining 

the system. In 2001, despite the fact that “a storm drainage system was installed 

in th[e] easement on or about the year of 1997,” the owner of Lot 8 threatened 

legal action against the McKees over the inadequacy of the system and its state 

of disrepair. The McKees apparently had additional work done in the area to 

remedy the issue, for which the owner of Lot 8 provided the McKees with some 

financial assistance. 

Ultimately, in August 2020, the McKees commenced this litigation against 

the City. In their petition, the McKees essentially asserted they never “agree[d] to 

maintain any easement on Lot 7” and, due to the subdivision improvements and 

infrastructure, they experience flooding and erosion from drainage. The McKees 
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alleged the City is the dominant estate holder of any easement on Lot 7 and the 

continued flowage path of drainage across the remainder of their property. The 

McKees sought equitable relief in the form of mandamus and declaratory relief on 

their claims that the City is responsible for repairing and maintaining the easement 

and remainder of their property. The McKees also alleged the drainage on their 

property amounts to a private and pure nuisance and the invasion of their property 

is an unconstitutional taking.

In time, the City filed a motion for summary judgment. In its ruling, the court 

found the McKees’ dealings with Duggan resulted in an express easement on 

Lot 7, which placed the burden of maintenance on the owners and assigns of Lot 7 

rather than on the dominant estate holder. The court also found Lot 7 is dominant 

to the remainder of the McKees’ property and, because the McKees own both, they 

are also responsible for maintaining the portion of their property north of Lot 7. The 

court accordingly found the City was entitled to judgment as a matter of law on the 

McKees’ claim for repairs and maintenance by the City in counts one and two of 

the petition. As for the nuisance claims in counts three and four, the court found 

those claims were time-barred, as was the unconstitutional taking claim in count 

five. So the court entered summary judgment in favor of the City. The McKees 

appeal, confining their claims to the court’s ruling on counts two, three, and four.

II. Standard of Review

“The standard of review for district court rulings on summary judgment is for 

correction of errors of law.” Kunde v. Est. of Bowman, 920 N.W.2d 803, 806 (Iowa 

2018). Summary judgement is only appropriate when the moving party has shown 

“that there is no genuine issue as to any material fact and that the moving party is 
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entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). “In determining 

whether a grant of summary judgment was appropriate, we examine the record in 

the light most favorable to the nonmoving party, drawing all legitimate inferences 

that may be drawn from the evidence in his or her favor.” Homan v. Branstad, 887 

N.W.2d 153, 163–64 (Iowa 2016). Summary judgment is appropriate “if the record 

reveals only a conflict concerning the legal consequences of undisputed facts.” 

Nelson v. Lindaman, 867 N.W.2d 1, 6 (Iowa 2015) (quoting Wallace v. Des Moines 

Indep. Cmty. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008)). 

III. Analysis

A. Count Two—Cleaning and Maintenance

In reviewing the propriety of summary judgment on count two, we begin with 

a little housekeeping. The McKees forwarded two separate claims seeking a 

determination that the City was required to clean and maintain the drainage 

easement. Count one sought relief requiring the City, as the dominant estate 

holder, to repair and maintain the easement on the Lot 7 portion of their property. 

Count two sought the same relief, but as to the drainage path that continues on 

the portion of their property north of Lot 7. The district court granted summary 

judgment on both counts and denied the McKees their requested relief. 

The McKees do not challenge the entry of summary judgment on count one 

relating to Lot 7. Because “our review is confined to issues presented on appeal 

taken from the . . . judgment,” the entry of summary judgment on count one serves 

as a final adjudication on the issue of whether the City is required to clean and 

maintain the easement on Lot 7. See Helland v. Yellow Freight Sys., Inc., 204 

N.W.2d 601, 605 (Iowa 1973); accord Feld v. Borkowski, 790 N.W.2d 72, 78 (Iowa 
7

2010) (“Our obligation on appeal is to decide the case within the framework of the 

issues raised by the parties. Consequently, we do no more and no less.” (internal 

citation and footnote omitted)). 

The City argues this is the end of the inquiry for count two because the 

“McKees have an express easement obligation concerning . . . installing and 

maintaining the drainage system; to separate this obligation from the . . . water 

passing to the remainder of McKees’ own property is not sound law as proposed 

by McKees.” The McKees say that with this argument, the City is basically

asserting “it can dump all the water it wants down Lot 7 and into the McKees 

homestead without any consequence whatsoever.” According to the McKees, the 

distinction between counts one and two is critical in rejecting that notion because 

who is responsible for Lot 7 under count one is governed by an express easement, 

while who is responsible for the remainder of the McKees’ property under count 

two is not. 

Dialing in on this argument, the McKees maintain the district court failed to 

account for the merger doctrine as it relates to Lot 7 and the northern part of their 

property. We agree that when Lot 7 was deeded back to the McKees and they 

became owners of both properties, they merged and any easement between Lot 7 

and the northern property was extinguished. See Gray v. Osborn, 739 N.W.2d 

855, 862 (Iowa 2007); Tamm, Inc. v. Pildis, 249 N.W.2d 823, 837 (Iowa 1976). 

This is because “one has no need of an easement over one’s own property.” 

Campbell v. Waverly Tire Co., No. 02-1948, 2003 WL 23008846, at *4 (Iowa Ct. 

App. Dec. 24, 2003). So, based on the merger doctrine, the McKees are correct 
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that Lot 7 is not dominant to the northern property, and the court’s entry of 

summary judgment on that basis was legal error.

True, the McKees are responsible for maintaining the express easement on

Lot 7. But Simms Avenue is dominant to both Lot 7 and the north portion of the 

property. According to the district court, the McKees are only responsible for Lot 7

because the documents creating the express easement on that lot overruled the 

general rule that the easement holder is responsible for repairing and maintaining 

the easement. See Koenigs v. Mitchell Cnty. Bd. of Supervisors, 659 N.W.2d 589, 

594 (Iowa 2003). What lies beyond Lot 7 on the northern portion of the McKees’ 

property and who is responsible for it remains a genuine issue of material fact 

subject to legal underpinnings the district court did not address.1 Cf. Halsrud v. 

Brodale, 72 N.W.2d 94, 97–98 (Iowa 1955) (stating “an easement, whether created 

by written grant, implication, or prescription,” cannot be “increased or extended 

without the consent of the owner of the servient tenement”). Having concluded the 

City was not entitled to judgment as a matter of law on the basis that the district 

 

1

In district court, the McKees maintained the drainage path on the northern 

property has always been a natural easement servient to Simms Avenue subject 

to general easement principles. See, e.g., Ditch v. Hess, 212 N.W.2d 442, 448 

(Iowa 1973) (“The general principle of law is ‘that the owner of the upper or 

dominant estate has a legal and natural easement in the lower or servient estate 

for the drainage of surface waters, that the natural flow or passage of the waters 

cannot be interrupted or prevented by the servient owner to the detriment or injury 

of the dominant proprietor . . . and that the owner of the dominant estate may cast 

an additional quantity of surface water upon the servient estate; if in so doing, he 

does not thereby do substantial damage to the servient estate.’” (citation omitted)). 

They also claimed it was a prescriptive easement and lack of contiguousness 

between a dominant estate and a prescriptive or natural drainage easement does 

not cut off the dominant estate’s responsibility to maintain. Cf. Nixon v. Welch, 24 

N.W.2d 476, 477 (Iowa 1946) (finding dominant estate holder had a drainage 

easement through a neighbor’s property, under a county road, and into the servient 

landowner’s ditch). 
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court determined it was, we reverse the entry of summary judgment on count two 

and remand for further proceedings.2 

B. Counts Three and Four—Nuisance

The McKees challenge the district court’s entry of summary judgment on 

their nuisance claims on statute-of-limitations grounds. In resisting summary 

judgment, the McKees asserted “the statute of limitations bars only those damages 

that accrue beyond five years from the date of the suit’s filing,” and the damage to 

their property is recurrent “with every significant rain event.” As such, the McKees 

argued the continuing nuisance entitled them to relief for damages dating back five 

years from the filing of their petition. The City responded the McKees failed to 

prove any damages that are recurrent and the nuisance was caused by the 

McKees’ failure to maintain the easement for more than two decades. 

 

2 We note the City’s motion for summary judgment on count two was also based 

on statutes of limitations relating to injuries and improvements to property. See 

Iowa Code § 614.1(4), (11)(a)(2), (3) (2020). The district court did not address 

whether the claim was time-barred, and the City does not pursue that avenue on 

appeal. Although we have discretion to affirm on an alternative ground that was 

urged below, State ex rel. Dickey v. Besler, 954 N.W.2d 425, 432 (Iowa 2021), we 

decline to do so here because the City does not ask us to. See Kraklio v. Simmons, 

No. 16-1392, 2017 WL 4049488, at *2 n.2 (Iowa Ct. App. Sept. 13, 2017), aff’d, 

909 N.W.2d 427, 429 (Iowa 2018) (“We express no opinion on the alternative 

grounds for summary judgment . . . . Those issues were not briefed or argued on 

appeal and may be decided by the district court on remand.”). We also reject the 

City’s suggestion that summary judgment on count two was appropriate because 

mandamus “is not to be used to establish rights but to enforce rights that have 

already been established.” Beelon v. Monroe Cnty., 577 N.W.2d 877, 879 (Iowa 

Ct. App. 1998). Although the court didn’t rule on this issue, the City did make the 

argument in their summary judgment motion and on appeal. Even so, we do not 

believe summary judgment should be granted on that ground because the McKees 

are not necessarily pursuing mandamus relief to “establish rights,” but instead to 

enforce an obligation they contend arises by operation of law, for example by 

prescription. And the McKees also pursued declaratory relief in count two, which 

allows them to pursue a declaration of rights and legal relationships between the 

parties. See Iowa R. Civ. P. 1.1101.
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In determining whether summary judgment was appropriate, the district 

court considered “whether the nuisance is permanent and subject to one action or 

whether the nuisance is ‘temporary and abatable’ and thus allowing for successive 

actions to lie.” The court found neither the extent of damage nor cause of injury 

had changed so the nuisance is permanent and subject to only one action, for 

which the limitations period has expired.

We recently explained:

“Whether an injured party is entitled to bring successive 

actions for damages or must seek compensation for all injuries in one 

suit depends on the nature of the injury, and to some degree, the 

nature of the nuisance.” K & W Elec., Inc. v. State, 712 N.W.2d 107,

118 (Iowa 2006). “[W]here the wrongful act is continuous or 

repeated, so that separate and successive actions for damages 

arise, the statute of limitations runs as to these latter actions at the 

date of their accrual, not from the date of the first wrong in the series.” 

Hegg v. Hawkeye Tri-C[n]ty. REC, 512 N.W.2d 558, 559 (Iowa

1994). On the other hand, when an injury is considered to be 

permanent, the statute of limitations begins to run at the time of the 

first injury. K & W Elec., 712 N.W.2d at 118–19.

. . . .

The term “permanent” does not refer solely to the structure or 

object causing the nuisance. Harvey [v. Mason City & Ft. Dodge Ry.

Co.], 105 N.W. [958,] 961 [(Iowa 1906)]. We must also consider “the 

character of the injury produced by it.” Id. The Iowa Supreme Court 

has stated:

In other words, the structure or thing producing the 

injury may be as permanent and enduring as the hand 

of man can make it, yet if the resulting injury be 

temporary or intermittent, depending on future 

conditions which may or may not arise, the damages 

are continuing, and successive actions will lie for 

successive injuries.

Id.; see also Archer [v. J.S. Compton, Inc.], 30 N.W.2d [92,] 96 [(Iowa

1947)]; Thompson v. Ill. Cent. Ry. Co., 179 N.W. 191, 195 (Iowa

1920); City of Ottumwa v. Nicholson, 143 N.W. 439, 443 (Iowa 1913); 

Hughes v. Chicago, B. & Q. Ry. Co., 119 N.W. 924, 926 (Iowa 1909).

A nuisance may be considered to be continuing if it is 

temporary and subject to abatement. See Bennett v. City of Marion,

93 N.W. 558, 559 (Iowa 1903). In a case involving noxious and 

offensive odors from a hog confinement facility, the Iowa Supreme 
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Court found the nuisance was permanent because there was no 

evidence the defendant “can or will abate the nuisance in the future” 

due to a lack of technology to “solve the odor problem.” Weinhold v.

Wolff, 555 N.W.2d 454, 463 (Iowa 1996). The court determined 

abatement of the nuisance could be accomplished only by closing 

the facility, a result it found neither equitable nor practical. Id.

Dvorak v. Oak Grove Cattle, L.L.C., No. 18-1624, 2019 WL 3729469, at *2–3 (Iowa 

Ct. App. Aug 7, 2019) (first alteration in original), further review denied (Oct. 9, 

2019). 

Here, the City had the burden to prove damages to the McKees’ property 

were permanent, rather than temporary, and not abatable. Id. at *3. The City’s 

own director of public works opined, “Based on more recent best practices, a 

solution could be developed . . . .” In an engineering report, the McKees’ expert 

proposed such a “drainage channel repair and improvement project.” Although the 

storm water collection system as is could “be characterized as a permanent 

structure, its construction date is not the determinative factor”; we also look to 

whether injuries are recurring. Anderson v. Yearous, 249 N.W.2d 855, 860 (Iowa 

1977). In the case before us, viewing the record in the light most favorable to the 

McKees, the erosion of the McKees’ channel has been continuous. It could 

certainly be repaired and is therefore abatable and not permanent. On our review, 

we find the City failed to meet its burden to “show the damage to the [McKees’] 

property could not be cleaned up or abated.” Dvorak, 2019 WL 3729469, at *3. 

So we find the grant of summary judgment on the nuisance claims on the basis 

that they are barred by the statute of limitations was legal error.

As to counts three and four, however, the City specifically asks us to affirm 

on alternative grounds not relied on by the district court. First, they repeat their 
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argument that any nuisance was created by the McKees’ failure to maintain the 

easement on Lot 7. But, as we determined in relation to count two, what lies 

beyond Lot 7 and who is responsible for it remains a genuine issue of material fact 

subject to legal underpinnings the district court did not address. Even if the 

McKees maintained the easement on Lot 7 pristinely, the drainage from Simms 

Avenue through Lot 7 and onto the north property could still be a nuisance 

depending on the determination of who is responsible under count two. So we find 

summary judgment is not appropriate on this basis.

The City also argues it “is immune from the nuisance claims based on 

negligence.” In support of this assertion, it cites Iowa Code section 670.4(1)(h). 

But immunity under this section 670.4(1)(h) as to claims relating to “negligent 

design or specification, negligent adoption of design or specification, or negligent 

construction or reconstruction of a public improvement” is only conferred if the 

improvement “was constructed or reconstructed in accordance with a generally 

recognized engineering or safety standard, criteria, or design theory in existence 

at the time of construction or reconstruction.” True, the City’s director of public 

works authored an affidavit stating the improvement was constructed “in conformity 

with the standards at the time.” On the other hand, the McKees’ expert opined

good and standard engineering practices were not followed in constructing the 

public improvements. So, at the very least, genuine issues of material fact remain 

on the issue of immunity precluding the entry of summary judgment on this basis. 

As such, we reverse and remand on these counts for further proceedings. 
13

IV. Conclusion

We reverse the entry of summary judgment on counts two, three, and four 

and remand for further proceedings.

REVERSED AND REMANDED.