author: TERNUS, Justice.

text:
    Robert J. FENCL, Appellant, v. CITY OF HARPERS FERRY, Iowa, Appellee.
    No. 98-2284.
    Supreme Court of Iowa.
    Dec. 20, 2000.
    Rehearing Denied Jan. 29, 2001.

      Eric W. Johnson of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellant.
    James A. Garrett, Waukon, for appellee.
   TERNUS, Justice.

The appellant, Robert Fencl, brought this action to quiet title to a twenty-foot strip of land that was originally platted as an alley in the City of Harpers Ferry, but never used as such. The trial court held that the alley was public trust property and, therefore, Iowa’s Marketable Record Title Act, Iowa Code sections 614.29-38 (1997), did not apply to cut off the appel-lee city’s interest. On appeal, we hold that the unused alley is not public trust property. Notwithstanding this holding, we conclude that the act does not apply to extinguish the city’s interest because a statutory exception for interests appearing in the record titleholder’s muniments of title applies. In considering the appellant’s alternative argument, rejected by the trial court, that the city is equitably estopped from claiming any interest in the land, we find that Fencl has established the elements of equitable estoppel and, therefore, the city is estopped from claiming ownership of the disputed property. Accordingly, we reverse and remand for entry of an order quieting title in Fencl.

I. Background Facts and Proceedings.

Harpers Ferry is a resort community on the shore of the Mississippi River. Its origin can be traced to an 1854 recorded plat of the town of Winfield, later renamed as Harpers Ferry. This plat, identified as “the Original Plat of Harpers Ferry,” defined the boundaries of lots and designated streets and alleys. The property in dispute in this case appears on the original plat as an alley, although it has never been utilized as such.

Robert Fencl currently owns the property designated as lot 63 on the 1854 plat. The unused alley lies south of lot 63, between lot 63 and lot 64. For many years prior to 1950, both lots, as well as additional adjacent property, were under the common ownership of F.W. Goebel and his wife, Martha, and were part of a large farm. Then in 1950, the Goebels conveyed lot 63 to W.A. Ottilie. The complete description used in the warranty deed conveying the property to Ottilie is as follows:

Lot 63 of Original Plat of the Town of Harpers Ferry, Iowa, and the part lying immediately South of that Lot which was originally platted as an alley and 15 feet immediately East of said Lot which "constitutes a vacated portion of Second Street.

When Ottilie died in 1951 his heirs deeded the property back to Martha Goebel, and she owned the property until 1962.

In 1962, Raymond and Betty Fencl, the parents of Robert Fencl, approached the Goebels about purchasing a lot. The Goe-bels offered the Fends a choice of several lots; lot 63 was priced higher than other lots because it was twenty feet wider due to the addition of the property platted as an alley. The Fends agreed to purchase lot 63, and received a warranty deed from the Goebels. The description of the property was identical to the description appearing in the 1950 warranty deed to Otti-lie.

The Fends made various improvements to the property, including the tract originally designated as an alley. They spent considerable effort cleaning up the property and eventually moved a trailer onto that portion of the property known as lot 63. They planted grass, flowers, and trees, and, in 1969, built a tool shed on the contested property at the cost of a few hundred dollars. At one time,’ a septic tank system was located on the disputed tract, but in the late 1980s the Fends stopped using it when they connected to a citywide sewer system.

In 1993 the Fends deeded the property to their son. The property description remained as it had in prior deeds.

Around 1996, the city began a process of identifying and eliminating unneeded public rights-of-way, including platted, but never developed, streets and alleys. Property designated by the city was offered to adjoining property owners at a standard price of $.96 per square foot. One of the properties so designated was the twenty-foot strip of property between lots 63 and 64, originally platted as an alley and included in Fencl’s deed. The city contacted Fencl and his neighbor to the south and offered to sell each of them one-half of the alley at the established price. Fencl objected to purchasing the property, as he believed that he already owned it. When the parties were unable to resolve the issue, Fencl filed this quiet title action.

In his petition to quiet title, Fencl asserted that he owned the contested property in fee simple and that the provisions of the Marketable Record Title Act barred any interest that the city may ever have had in the real estate. The city responded that the act did not apply for four reasons: (1) the alley constitutes public trust property and, therefore, the city’s interest could not be extinguished by the act; (2) the city’s interest was inherent in the mu-niments of which Fencl’s chain of record title was formed, thereby falling within an exception to the act; (3) the city had been in continuous possession of the property for a period of more than forty years, thereby qualifying under another exception to the act; and (4) Fencl’s chain of record title failed to adequately identify the property he claimed. The city filed a counterclaim to quiet title in the city.

The case was tried to the court, which denied Fencl’s petition to quiet title and granted the city’s counterclaim to quiet title. The court ruled that the disputed property was public trust property and, therefore, the act did not apply. The court also rejected an equitable estoppel argument advanced by Fencl. Fencl brought this appeal.

II. Scope of Review.

An action to quiet title in land is in equity and, thus, this court’s review is de novo. See Rouse v. Union Township, 530 N.W.2d 714, 716 (Iowa 1995); Iowa R.App.P. 4. We have the responsibility to examine the facts as well as the law and to decide anew the issues properly presented. See In re Marriage of Full, 255 N.W.2d 153, 156 (Iowa 1977). “[T]he court gives weight to the fact findings of the trial court, but is not bound by them.” Iowa R.App.P. 14(f)(7). Nor are we bound by the trial court’s conclusions of law. See Rouse, 530 N.W.2d at 716.

We first examine the basis upon which the trial court rendered its decision, affirming on that ground if possible. See Israel v. Farmers Mut. Ins. Ass’n, 339 N.W.2d 143, 146 (Iowa 1983). If we disagree with the basis for the court’s ruling, we may still affirm if there is an alternative ground, raised in the district court and urged on appeal, that can support the court’s decision. See id.

III. Applicability of the Marketable Record Title Act.

A. General legal principles. We begin our consideration of this issue with a brief review of the Iowa Marketable Record Title Act, commonly known as the forty-year act. Marketable title statutes are

statutes designed to shorten the period of search required to establish title in real estate and give effect and stability to record titles by rendering them marketable and alienable — in substance to improve and render less complicated the land transfer system.

Chicago & N.W. Ry. v. City of Osage, 176 N.W.2d 788, 793 (Iowa 1970). The act itself states that it “shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title.” Iowa Code § 614.30.

In furtherance of this goal, the Iowa legislature established a forty-year marketable record title:

Any person who has an unbroken chain of title of record to any interest in land for forty years or more, shall be deemed to have a marketable record title to such interest ... subject only to the matters stated in section 611.32. A person shall be deemed to have such an unbroken chain of title when the official public records disclose a conveyance or other title transaction, of record not less than forty years at the time the marketability is to be determined, which said conveyance or other title transaction purports to create such interest, either in:
1. The person claiming such interest, or
2. Some other person from whom, by one or more conveyances or other title transactions of record, such purported interest has become vested in the person claiming such interest; with nothing appearing of record, in either case, purporting to divest such claimant of such purported interest.

Iowa Code § 614.31 (emphasis added). The city concedes that Fencl has a forty-year unbroken chain of record title to the disputed property. Therefore, Fencl has a marketable record title. See id. § 614.29(1) (defining “marketable record title”).

Under the statute, a marketable record title operates to extinguish any interest, “the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title ... whether legal or equitable, present or future ... whether such person is natural or corporate, or is private or governmental,” subject, however, to the matters stated in section 614.32. Id. § 614.33. Fencl’s root of title is the 1950 deed from the Goebels to Ottilie. See id. § 614.29(5) (defining “root of title”). Clearly, the city’s interest “depends upon [an] act ... that occurred prior to the effective date of the root of title,” that act being the adoption of the original 1854 plat. Id. § 614.33. Therefore, Fencl’s marketable record title serves to extinguish the city’s interest unless Fencl’s title is subject to any of the matters stated in section 614.32.

Section 614.32 sets forth the interests and rights to which a marketable title is subject. The city relies on two of these matters: (1) interests that are inherent in the record chain of title; and (2) interests preserved by possession of the owner continuously for a period of forty years or more. See id. § 614.32(l)-(2). In addition, the city claims that the forty-year act simply does not apply to public trust property, a proposition adopted by the trial; court. We will address each issue separately.

B. Public trust property. While the city concedes that the statute is generally applicable to governmental interests, it nevertheless maintains that the statute was never meant to divest a governmental entity of “public trust property.” The city relies on dictum in our decision in State v. Sorensen, 436 N.W.2d 358 (Iowa 1989), for the proposition that the marketable record title act does not apply to public trust property.

In Sorensen, we considered the scope of Iowa Code section 614.17, a marketable title act known as the ten-year act, which, at that time, barred certain claims to real estate predating 1970. 436 N.W.2d at 360 (citing Iowa Code section 614.17 (1983)). The State sought to quiet title to land that had been formed by accretion to the Missouri River. Id. at 359. The defendant, Sorensen, claimed title to the land and asserted that any interest by the State in the property was lost under the time limitation of section 614.17. Id. at 360. Due to the special nature of public trust property, we held that section 614.17 did not apply to bar claims of the State to such property. Id. at 362. Because the disputed land was public trust property, this court concluded that the State’s interest was not subject to section 614.17. Id. at 363. We noted that Sorensen had not preserved error on his additional claim that the forty-year act extinguished the State’s right to the property. Id. at 360. We stated, nonetheless, that “it is doubtful that the forty-year act would bar claims to public trust property, despite the act’s specific inclusion of ‘governmental’ as well as private claims.” Id. (citing Iowa Code § 614.33). We do not find it necessary in the case before us to decide whether the forty-year act would bar claims to public trust property because the contested alley does not qualify as public trust property, a conclusion we will now explain.

The public trust doctrine is “based on the notion that the public possesses inviolable rights to certain natural resources.” Id. at 361. The State has very limited power to dispose of such property. In State v. Dakota County, Nebraska, 250 Iowa 318, 93 N.W.2d 595 (1958), this court held that land under the Missouri River was public trust property and could not be sold by the State. 250 Iowa at 325, 93 N.W.2d at 599; accord Sorensen, 436 N.W.2d at 362 (noting the “stringent limitations on the state’s power to alienate such property”).

The doctrine in Iowa has a narrow scope: “We do not necessarily subscribe to broad applications of the doctrine, noted by one authority to include rural park-lands, historic battlefields, or archaeological remains. In fact, we are cautioned against an overextension of the doctrine.” Sorensen, 436 N.W.2d at 363 (citations omitted). The doctrine was “originally applied [in Iowaj to the beds of navigable waters, but has now expanded to embrace the public’s use of lakes and rivers for recreational purposes as well.” Larman v. State, 552 N.W.2d 158, 161 (Iowa 1996) (citing Robert’s River Rides, Inc. v. Steamboat Dev. Corp., 520 N.W.2d 294, 299 (Iowa 1994); Sorensen, 436 N.W.2d at 363). Clearly, the alley in question is not a navigable or recreational body of water; nor does the alley provide access to a river or lake. Thus, the question .becomes whether we should extend the doctrine to encompass this type of public property. Such an extension, in our opinion, would be inconsistent with the rationale underlying the public trust doctrine.

The public trust doctrine is based on the notion that the State is a steward of our natural resources. See Sorensen, 436 N.W.2d at 361. Consistently with this basic proposition, the United States Supreme Court has prohibited a state from conveying important natural resources to private parties. See Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 452-53, 13 S.Ct. 110, 118, 36 L.Ed. 1018, 1042-43 (1892). We think these underpinnings of the public trust doctrine have no applicability to public streets and alleys. Simply stated, an alley is not a natural resource. Unlike the unique nature of the Missouri River, an alley exists merely where the governmental entity chooses to place it. Moreover, it is clear that the government has the power, albeit subject to some limitations, to alienate property originally dedicated for streets and alleys. In fact, that is exactly what the city proposes to do in the present case. If we were to hold that the alley is public trust property subject to the public trust doctrine, the city’s plan to sell the alleyway would be in jeopardy. See Dakota County, 250 Iowa at 325, 93 N.W.2d at 599 (holding public trust property could not be sold by the State).

In summary, we conclude that the alley is distinguishable from public trust property with respect to the uniqueness of the land as well as the limitations on its alien-ability. Therefore, we decline to extend the public trust doctrine to encompass the alley in question.

C. Exception for interests inherent in the muniments of title. Iowa Code section 614.32 states that a marketable record title is subject to “all interests ... which are inherent in the muniments of which such chain of record title is formed.” Iowa Code § 614.32(1). See generally Black’s Law Dictionary 1019 (6th ed.1990) (defining “muniments of title” as “[d]ocu-mentary evidence of title”). This statute further provides, however, that a “general reference in such muniments ... to ... interests created prior to the root of title” is not sufficient; the muniments must contain a “specific identification ... of a record title transaction which creates such ... interest.” Iowa Code § 614.32(1). To determine the applicability of section 614.32(1) in this case, we must answer three questions: (1) Is the city’s interest in the disputed property inherent in the mu-niments of title — in this case, deeds— forming Fencl’s chain of record title? (2) Was the city’s interest created prior to Fencl’s root of title? and (3) If so, do the deeds specifically identify the record title transaction that created the city’s interest?

It is helpful at this point to again review the property descriptions contained in the deeds that form Fencl’s chain of record title:

Lot 63 of Original Plat of the Town of Harpers Ferry, Iowa, and the part lying immediately South of that Lot which was originally platted as an alley and 15 feet immediately East of said Lot which constitutes a vacated portion of Second Street.

(Emphasis added.) The specific reference in the deeds to that part of the property “originally platted as an alley” satisfies the requirement that the interest be inherent in the documents forming Fencl’s chain of record title. This reference would alert anyone examining Fencl’s record title that the city, at least at one time, had an ownership interest in that portion of the property. As for the second issue, the parties agree that the 1950 deed from the Goebels to Ottilie is Fencl’s root of title. See id. § 614.29(5) (defining “root of title”). Because the city’s interest in the alley property was created prior to 1950, the deeds must specifically identify the “record title transaction” creating the city’s interest in order for that interest to be preserved. See id. § 614.32(1). As noted earlier, the city’s record title document is the original 1854 plat for Harpers Ferry. We think this document is sufficiently identified by the deeds’ reference to the “Original Plat of the Town of Harpers Ferry, Iowa.” Therefore, the prerequisites of section 614.32(1) are met.

Not only do the facts before us satisfy the literal requirements of section 614.32(1), but a conclusion that the city’s interest was not extinguished is also consistent with the underlying purpose of the act. The statutory exceptions to marketable record title should not be interpreted and applied in such a way as to undermine the purpose of the act, which is to simplify title transactions by shortening the period that must be searched to establish marketable title. See Chicago & N.W. Ry., 176 N.W.2d at 793 (stating purpose of marketable record title acts). In the case before us, a person searching the chain of record title for the obligatory forty years would be alerted not only to the fact that the town of Harpers Ferry had platted a portion of the property as an alley, but would also be informed of the document creating this interest, namely the original plat of the city. Under these circumstances, the title transfer process is not unduly burdened by a focused search to determine whether the city’s interest in the alley had ever been vacated. Such a search was not undertaken here because Fencl did not have an abstract of title prepared until after his dispute with the city surfaced.

Based on the foregoing analysis, we hold that Fencl cannot rely on the Marketable Record Title Act to extinguish the city’s interest in the disputed land. This conclusion makes it unnecessary to determine whether the exception for continuous possession found in section 614.32(2) applies. We now consider Fencl’s alternative argument that the city is estopped from claiming an interest in the platted alley.

IV. Equitable Estoppel.

A. General principles. The doctrine of equitable estoppel is based on fair dealing and good faith. See Sioux City v. Johnson, 165 N.W.2d 762, 767 (Iowa 1969). The generic elements of this doctrine are

1) a false representation or concealment of material facts;
2) lack of knowledge of the true facts on the part of the actor;
3) intention that it be acted upon; and
4) reliance thereon by the party to whom made, to his prejudice and injury.

Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 493 (Iowa 2000). We have said, however, that “[tjhere can be no hard and fixed rule for determining when this principle should be applied.” Johnson, 165 N.W.2d at 768. And, in fact, these elements have been largely ignored in orn-eases dealing with estoppel in the context of title disputes. See, e.g., Pearson v. City of Guttenberg, 245 N.W.2d 519, 528-31 (Iowa 1976) (quieting title in homeowners under theory of estoppel; traditional elements of equitable estoppel not discussed); Page & Crane Lumber Co. v. City of Clear Lake, 208 Iowa 735, 738, 225 N.W. 841, 842 (1929) (holding city “estopped from asserting title” to an alley; traditional elements of equitable estoppel not discussed); Simplot v. City of Dubuque, 56 Iowa 639, 640-41, 10 N.W. 221, 222 (1881) (quieting title in claimant based on estoppel theory and focusing on nonuse of property by city and conduct of both parties indicating tract was owned by claimant).

In the context of property disputes, we have first required proof of conduct on the part of the city indicating an abandonment of its interest. See Pearson, 245 N.W.2d at 529 (citing Johnson, 165 N.W.2d at 766-67); Smith v. City of Osage, 80 Iowa 84, 88-89, 45 N.W. 404, 406 (1890). This conduct is akin to the representation required under the generic formulation of the equitable estoppel doctrine.

The claimant is also obligated to prove a claim of ownership through adverse possession. See Pearson, 245 N.W.2d at 529-30; cf. Johnson, 165 N.W.2d at 770 (noting that claimant merely seeking to enjoin city from using contested property so as to allow claimant’s continued possession and use of property need not prove abandonment or adverse possession to estop city). This claim must be “in good faith premised upon conduct of the municipality that would reasonably tend to lead another to believe that its once intended use as a street is no longer contemplated.” Johnson, 165 N.W.2d at 769. Thus, this second element of estop-pel as applied in title disputes is similar to the second and fourth elements of a traditional equitable estoppel claim.

Finally, the court must find that to allow the city to assert its ownership interest would unfairly damage the person claiming the property adversely to the city. See id. at 768; State v. Raymond, 254 Iowa 828, 836, 119 N.W.2d 135, 140 (1963). This element generally requires the claimant to show that he has made some permanent improvement on the tract. See Schultz v. Stringer, 168 Iowa 668, 675, 150 N.W. 1063, 1065 (1915) (holding that the doctrine of estoppel could not be applied because the claimant had not made any improvements to the disputed alley). The injury and prejudice requirement of the fourth element of the traditional equitable estoppel doctrine is comparable to this final element of an estoppel claim to quiet title.

Proof of estoppel must be by clear and convincing evidence. See Ivener v. Cowan, 175 N.W.2d 121, 124 (Iowa 1970). We will now consider the evidence on each component of Fencl’s equitable estoppel theory to determine whether it clearly and convincingly supports his claim.

B. Conduct showing abandonment. A threshold requirement for this element is proof that the city has not used the property for more than ten years. See Johnson, 165 N.W.2d at 768; Kelroy v. City of Clear Lake, 232 Iowa 161, 168, 5 N.W.2d 12, 17 (1942). Mere nonuse is not enough, however; nonuse must be “coupled with affirmative evidence of a clear determination to abandon.” Allamakee County v. Collins Trust, 599 N.W.2d 448, 452 (Iowa 1999); accord Johnson, 165 N.W.2d at 768 (“mere nonuser alone is not sufficient”); Kelroy, 232 Iowa at 168, 5 N.W.2d at 17 (“mere non-user will not of itself defeat the public title to a street”).

The trial court found that Fencl had not established nonuse by the city because an electric utility, operating under a city franchise, had placed poles on the disputed tract and Fencl’s neighbor placed his LP gas tank on the property. Upon our de novo review, we disagree with this finding. We first note that the use of the-property by Fencl’s neighbor is irrelevant to a determination of whether the city used the property at issue. See Simplot, 56 Iowa at 641, 10 N.W. at 222 (stating that use of disputed tract, which was located on the river, by individuals for landing lumber in high water did not constitute a public use of the property). A similar conclusion is appropriate in considering the utility’s placement of poles on the property. The mere fact that the utility operated under a city-granted franchise does not make its use of the property the city’s use of the property. No doubt the city would vigorously contest such an assertion if Fencl’s case were one claiming injury from a falling pole, rather than one seeking to quiet title. Having rejected the validity of the city’s claimed “vicarious” use of the property, we have examined the record for other evidence of use and have found none. Therefore, Fencl has shown nonuse for more than ten years.

We also think Fencl has shown other acts evidencing an abandonment. In 1988, in the process of constructing a citywide sewer system that would include service to Fencl’s property, the city requested and obtained a temporary construction easement from Fencl. See Pearson, 245 N.W.2d at 530-31 (finding that city’s conduct in requesting from plaintiffs a “temporary easement for right to work and storage area” with respect to contested property was “consistent with the plaintiffs’ claim of private ownership”). In addition, the document granting the easement, which was prepared by the city, identified the property owned by Fencl using the same description found in the recorded deeds; this description, of course, included the platted alley. Furthermore, this document described the easement as

Ten Feet in width adjacent and parallel to the northwesterly line of Lot 63 AND ten feet in width adjacent and parallel to the northwesterly line of the vacated 20 foot alley of the Original Plat of Harpers Ferry, Allamakee County, Iowa.

(Emphasis added.) It is apparent from the document prepared by the city for Fencl’s signature that the city believed it had vacated the alley.

In addition to this conduct is the fact that the city collected property taxes on the contested tract from approximately 1975 to 1992. In a prior case involving similar facts, this court stated:

[The city] has permitted plaintiff, and those under whom he claims, to occupy the land, which has never been subject to public use, and it levies and collects city taxes thereon. The law regards this as a declaration by its acts that it holds no claim to the land, and as an abandonment of all claim to the public use of the lands.... The city will be estopped to set up any claim to land to which the right of public use has been abandoned by subjecting it to taxation as private property.

Smith, 80 Iowa at 88-89, 45 N.W. at 406.

Based on the city’s nonuse of the contested property, its action in seeking an easement from Fencl to permit construction in the vicinity of the alley, which it described as “vacated,” and its taxation of the property, we find that the plaintiff has established abandonment sufficient to support a claim of equitable estoppel.

C. Adverse possession. This element has been variously defined in our cases, but in essence one claiming an interest in land adverse to a municipality under a theory of estoppel must prove his “actual and notorious possession of the land ... as private property under a claim of right.” Kelroy, 232 Iowa at 168, 5 N.W.2d at 17; accord Page & Crane Lumber, 208 Iowa at 738, 225 N.W. at 842 (holding that estoppel can arise “where, with the knowledge of the city, an occupant has asserted a right to the ground where the alley is located, and has maintained such possession under such claim, with the knowledge of the city, for more than ten years”). The possession must be such “ ‘as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition.’ ” Pearson, 245 N.W.2d at 530 (quoting Council Bluffs Sav. Bank v. Simmons, 243 N.W.2d 634, 637 (Iowa 1976)). In addition, the required possession must be for more than ten years, and the party asserting the estoppel must act in good faith. See Johnson, 165 N.W.2d at 768-69. Finally, possession need not be under color of title; the requisite possession under a claim of right will suffice. See Pearson, 245 N.W.2d at 530; Christopherson v. Inc. Town of Forest City, 178 Iowa 893, 900, 160 N.W. 691, 693 (1916).

The trial court found that Fencl had “clearly established” his “possession under a claim of right for a long period in good faith.” We agree. Fencl’s parents obtained title to the property in a bona fide business transaction and recorded the deed evidencing the transfer of the land. Fencl and his parents before him have occupied the land since 1962, more than three times the required ten years. Moreover, their possession has been actual and notorious and of the character that normally accompanies ownership of property. The Fends cleared the land. They planted it with grass, trees, and flowers. They built a tool shed upon it and installed a septic system below the ground. They also paid real estate taxes on the property. See Pearson, 245 N.W.2d at 530 (finding sufficient possession where claimants planted hedges and shrubbery, and claimants’ fences and buildings encroached onto the disputed tract); see also Johnson v. City of Shenandoah, 153 Iowa 493, 502, 133 N.W. 761, 764 (1911) (stating court has “always held that the erection of buildings or the making of other permanent improvements will be sufficient for an estop-pel in pais” and finding an estoppel where claimant had erected a buggy shed on the purported alley). Although the city cites to the fact that Fencl’s neighbor placed an LP gas tank on the contested tract, we do not think Fencl’s leniency in accommodating his neighbor destroys his open possession of the property as an owner under claim of title. See Clinton Nat’l Bank v. City of Camanche, 251 N.W.2d 248, 250, 251 (Iowa 1977) (finding adequate possession of disputed shoreline property under a claim of right even though “a ‘few stragglers’ have fished from the bank and children occasionally played along the river”).

D. Damage to Fencl. We here consider whether Fencl will be unjustly injured by recognition of the city’s ownership of the platted alley. Contrary to the trial court’s finding that Fencl had “failed to show any great damage to him,” we think that a failure to estop the city from claiming title to the property will damage Fencl to an extent that, under the circumstances of this case, equity demands an estoppel. Fencl will either have to move the shed — a permanent improvement— from the tract, or he will have to pay for the property. Cf. Clinton Nat’l Bank, 251 N.W.2d at 251 (holding that claimants would suffer damage by use of disputed property as a city park because claimants had constructed a retaining wall on the contested real estate and had used the land as part of their front yard). The fact that large monetary sums are not involved does not detract from the significance of this injury to Fencl.

In summary, the city has not used this property for more than one hundred years. In documents prepared on its behalf the claimed alley was described as vacated. Furthermore, the city collected property taxes on the contested tract for approximately seventeen years. In contrast, Fencl possessed the property and treated it as his own. He made permanent improvements to the land and paid taxes on it. We think these facts establish by clear and convincing evidence the essential elements of Fencl’s claim of equitable estoppel. Accordingly, we reverse the trial court’s contrary conclusion and remand for entry of a judgment quieting title to the disputed property in Fencl.

REVERSED AND REMANDED.

      . In 1918 the city vacated portions of certain streets, including fifteen feet on the west side of Second Street. This fifteen-foot strip was added to the front of Lot 63. The vacation ordinance was recorded and the attached plat showing the vacated property reveals that the land at issue in this case was still platted as an alley. Although the city's records are incomplete, those that are available do not show any subsequent vacation of the alley.

      . Fencl does not challenge the city’s assertion that the 1854 plat created an interest in the subject property in the city. As noted earlier, the plat designated the contested real estate as an alley. The plat was recorded. Subsequently, the city was incorporated. Although the record is not clear with respect to whether the city ever properly accepted the dedication of the streets and alleys, this possible omission is not significant because Iowa Code section 592.2 appears to make the matter of dedication and acceptance moot for plats filed before 1897. See Iowa Code § 592.2 ("all plats heretofore filed for record and not subsequently vacated are hereby declared valid, notwithstanding irregularities and omissions in the required statement or plat, or in the manner or form of acknowledgement, or certificates thereof'); see also Town of Marne v. Goeken, 259 Iowa 1375, 1379-80, 147 N.W.2d 218, 222 (1966) (stating that silence of county records as to county's acceptance of dedication was rendered unimportant by the legalizing act in chapter 592). Under these circumstances, the original recorded plat was "equivalent to a deed in fee simple to the town of the land set apart in the plat for streets or other public use.” Kelroy v. City of Clear Lake, 232 Iowa 161, 164, 5 N.W.2d 12, 16 (1942).

      . Section 614.17 now bars certain described claims predating January 1, 1980. See Iowa Code § 614.17 (1999).

      . Contrary to the city’s contentions, we have never applied the public trust doctrine to streets and alleys. It is true that this court has stated on several occasions that streets and alleys are held in trust for the public’s use. See, e.g., City of Hawarden v. US W. Communications, Inc., 590 N.W.2d 504, 507-08 (Iowa 1999) (stating that where city holds its streets in fee, the fee is "in trust for the public"); Lerch v. Short, 192 Iowa 576, 577, 185 N.W. 129, 130 (1921) (staling that the city holds title to streets "in trust for the public”); Milburn v. City of Cedar Rapids, 12 Iowa 246, 251-52 (1861) (stating that town held streets "in trust" for the public). But we have never held that streets and alleys are a natural resource or "public trust property" subject to the severe restrictions on alienability inherent in the public trust doctrine.

      . It has long been the rule in Iowa that the doctrine of adverse possession does not apply to governmental entities. See Johnson v. City of Shenandoah, 153 Iowa 493, 500, 133 N.W. 761, 762 (1911). As we discuss, it has, however, been incorporated as an element in an equitable estoppel action to establish title. See Pearson, 245 N.W.2d at 529-30.

      . Although Johnson was a suit to enjoin the city’s possession and use of the street, the factors used in Johnson were adopted as part of the court’s analysis in the quiet tide suit addressed in Pearson. See Pearson, 245 N.W.2d at 528, 531.


source: Caselaw Access Project

author: LAVORATO, Chief Justice. TERNUS, J.

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    WEYERHAEUSER COMPANY, Appellant, v. THERMOGAS COMPANY, Appellee, Blackhawk Automatic Sprinklers, Inc. and Clark Equipment Company, Defendants.
    No. 98-2222.
    Supreme Court of Iowa.
    Dec. 20, 2000.
    Rehearing Denied Jan. 29, 2001.

      Thomas B. Caswell and John C. Good-now of Zelle, Hofmann, Voelbel & Gette, L.L.P., Minneapolis, MN, and Diane Kutz-ko and Steven J. Pace of Shuttleworth <& Ingersoll, P.C.r, Cedar Rapids, for appellant.
    Joseph M. Barron of Peddicord, Wharton, Thune & Spencer, P.C., Des Moines, Leonard J. Johnson, John G. Hansen, and Brian A. Mark of the Johnson Law Group, L.L.C., Kansas City, MO, and Donald L. Eells of Eells & Sovern Law Office, P.L.C., Cedar Rapids, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   LAVORATO, Chief Justice.

A jury found against Weyerhaeuser Company in its action against Thermogas Company for damages to Weyerhaeuser’s facility stemming from a liquid propane tank explosion. Weyerhaeuser appeals following the district court’s denial of its motion for a new trial, raising three principal issues: (1) whether the district court erred in directing a verdict for Thermogas on Weyerhaeuser’s claims for strict liability and breach of implied warranty of merchantability, (2) whether the district court erred in refusing to give an instruction that Weyerhaeuser’s fault in starting the fire that precipitated the explosion of the liquid propane tank should not be considered, and (3) whether the district court erred in refusing to give the jury a res ipsa loquitur instruction on Weyerhaeu-ser’s negligence claim. We reverse and remand for a new trial.

I. Background Facts and Proceedings.

Weyerhaeuser owns and operates a corrugated container manufacturing plant in Waterloo, Iowa. Corrugated containers are simply cardboard boxes.

During the evening of February 27, 1995, and into the early morning hours of February 28, Larry Henriksen was training Tom Chorny to operate a clamp truck. A clamp truck is a forklift with a pincher-like attachment used to move rolls of paper stock throughout the facility. The truck’s fuel source is a liquid propane (LP) fuel tank mounted on the back of the truck. Thermogas Company supplied Weyerhaeuser with fifteen LP tanks each day, its daily LP tank needs. Each day a Thermogas driver would take the empty tanks from the Weyerhaeuser facility and replace them with filled tanks.

Henriksen told Chorny to drive around the roll paper storeroom to familiarize himself with the clamp truck operation. While Chorny was doing this, Henriksen stepped into a nearby room to check on a batch of starch. Starch is used as an adhesive in the construction of the cardboard boxes. A short time later, Chorny interrupted Henriksen to tell him the clamp truck was out of fuel.

After Henriksen and Chorny replaced the empty LP tank on the clamp truck with a full one, Henriksen returned to the starch room and Chorny resumed driving the truck. Chorny was unaware that he was driving the truck with the parking brake engaged. A short time later, Chor-ny noticed the clamp truck was “smelling funny ... like it was overheating.” As he was getting out of the truck, Chorny noticed a thin wisp of white smoke coming from the engine area located under the driver’s seat.

Chorny left to tell Henriksen what was happening. As they were returning to the truck, the two saw flames coming out from the underside of the truck. At this time, the flames were not impinging on the LP tank on the truck. Soon the flames increased in size and height, reaching about eight inches beneath the seat and tank area.

Deciding not to fight the fire, Henriksen and Chorny started to exit the building. Within approximately forty-five seconds, the LP tank exploded, igniting rolls of paper and corrugated boxes in the building. Before they left, another employee, Garry Ihnen, pulled the wall-mounted fire alarm.

Approximately three minutes after Ihnen pulled the fire alarm, fire fighters arrived on the scene. The fire destroyed roughly half of the Weyerhaeuser plant as well as most of its paper stock. Weyer-haeuser sustained approximately $5.8 million in property damage, destruction of inventory, and related costs. Fortunately, no one was injured.

Later, Weyerhaeuser sued Thermogas, Blackhawk Automatic Sprinklers, Inc. (the installer of the manufacturing plant’s sprinkler system), and Clark Equipment Company (the clamp truck manufacturer). Weyerhaeuser’s claim against Thermogas and Blackhawk included negligence, strict liability, breach of contract, and breach of express and implied warranties. Weyer-haeuser alleged only negligence against Clark.

Weyerhaeuser alleged that the LP fuel tank exploded prematurely during the fire and that the sprinkler system faked to operate properly to extinguish the fire. Weyerhaeuser alleged that Clark negligently designed, fabricated, and tested the clamp truck.

A jury returned a verdict finding Wey-erhaeuser seventy percent at fault, Black-hawk five percent at fault, and Thermogas twenty percent at fault. Weyerhaeuser moved for a new trial. Among other things, Weyerhaeuser claimed that the district court erred in (1) directing a verdict for Thermogas on Weyerhaeuser’s claims of strict liability and breach of implied warranty of merchantability, (2) refusing to instruct the jury that the cause of the fire was legally irrelevant with respect to the negligence of Weyerhaeuser, and (3) refusing to give the jury a res ipsa loqui-tur instruction on Weyerhaeuser’s negligence claim against Thermogas.

The district court overruled the motion, and Weyerhaeuser appealed. Weyerhaeu-ser has settled with Blackhawk and Clark, so those defendants are not involved in this appeal.

On appeal, Weyerhaeuser reasserts the issues raised in its motion for new trial.

II. Scope of Review.

How we review a denial of a motion for new trial depends upon the grounds for new trial asserted in the motion and ruled upon by the district court. Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993). When the motion and the ruling are based on discretionary grounds, we review the district court’s ruling for an abuse of discretion. Id. When, however, the motion and the ruling are based on a claim that the district court erred on issues of law, our review stands or falls on the correctness of its ruling on the legal question. Id. All of the issues Weyerhaeuser raised in its motion for new trial and raises here involve the correctness of the district court’s ruling on legal questions.

Our review of rulings on motions for directed verdict is for correction of errors at law. Iowa R.App.P. 4; James v. Burlington N., Inc., 587 N.W.2d 462, 464 (Iowa 1998). We review the evidence in the light most favorable to the party against whom the motion is made. James, 587 N.W.2d at 464. In our review we determine whether sufficient evidence existed to submit the issues to the jury. Id.

We review refusals to give jury instructions for correction of errors at law. Iowa R.App.P. 4; Duncan v. City of Cedar Rapids, 560 N.W.2d 320, 325 (Iowa 1997). The district court must give a requested jury instruction if the instruction (1) correctly states the law, (2) has application to the case, and (3) is not stated elsewhere in the instructions. Beyer v. Todd, 601 N.W.2d 35, 38 (Iowa 1999). “Parties are entitled to have their legal theories submitted to the jury if they are supported by the pleadings and substantial evidence in the record.” Id. When we weigh the sufficiency of the evidence to support a requested instruction, we review the evidence in the light most favorable to the party seeking the instruction. Duncan, 560 N.W.2d at 325. A district court’s failure to give a requested instruction does not require a reversal unless the failure results in prejudice to the party requesting the instruction. Beyer, 601 N.W.2d at 38.

III. Strict Liability and Breach of Implied Warranty of Merchantability.

A. Iowa Code section 613.18(l)(a) (1993). The district court sustained Ther-mogas’ motion for directed verdict on these two claims based on Thermogas’ contention that Iowa Code section 613.18(l)(a) immunized it from liability. Section 613.18(1) provides:

A person who is not an assembler, designer, or manufacturer and who wholesales, retails, distributes or otherwise sells a product is:
a. Immune from suit based upon strict liability or breach of implied warranty of merchantability which arises solely from an alleged defect in the original design or manufacture of the product.
Iowa Code § 613.18(1).

The district court found that Thermogas did not assemble, design, or manufacture the tank that exploded. Instead, the district court found that Thermogas simply filled the tank with its product. On that basis, the court concluded that section 613.18(l)(a) applied and granted Thermo-gas’ motion for directed verdict.

1. Applicable law. The issue therefore is whether Thermogas was an “assembler,” “designer,” or “manufacturer.” Of the three terms, “assembler” seems the most appropriate here. The Iowa Code does not define the word. We therefore resort to its common and ordinary meaning. See Gerst v. Marshall, 549 N.W.2d 810, 814 (Iowa 1996).

The verb “assemble” means “to bring together or gather together into one place, company, body, or whole.” Webster’s Encyclopedic Unabridged Dictionary 125 (rev. ed.1996). “Assembler” is defined as “a person or thing that assembles.” Id. Thus, the dictionary meanings of “assemble” and “assembler” contemplate a person or thing that brings together [two or more] things into a whole.

The dictionary definition of “assembler” closely resembles the definition of “assembler” in a torts liability setting. For example, under the theory of assembler’s liability, a party “[that] incorporates a defective component part into its finished product and places the finished product into the stream of commerce is liable for injuries caused by a defect in the component part.” Baughman v. Gen. Motors Corp., 780 F.2d 1131, 1132 (4th Cir.1986); see also Exxon Shipping Co. v. Pac. Res., Inc., 789 F.Supp. 1521, 1526 (D.Haw.1991); Rauch v. Am. Radiator & Standard Sanitary Corp., 252 Iowa 1, 9, 104 N.W.2d 607, 611-12 (1960); Ford Motor Co. v. Wood, 119 Md.App. 1, -, 703 A.2d 1315, 1331 (1998); Comstock v. Gen. Motors Corp., 358 Mich. 163, —, 99 N.W.2d 627, 633 (1959); E.L. Kellett, Annotation, Products Liability: Manufacturer’s Responsibility for Defective Component Supplied by Another and Incorporated in Product, 3 A.L.R.3d 1016, 1024 (1965); 63 Am.Jur.2d Products Liability § 237, at 252 (1996). Under this theory, the assembler is liable even though the assembler did not manufacture the component part. Baughman, 780 F.2d at 1132; Exxon, 789 F.Supp. at 1526; 63 Am.Jur.2d Products Liability § 237, at 252. The rule has been applied in negligence, strict-liability, and breach-of-warranty cases as well. See 63 Am. Jur.2d Products Liability § 140, at 182; 3 A.L.R.3d at 1038-41.

The evolution of the rule began with the tort of negligence. Under a negligence analysis, courts imposed liability on the assembler of a finished product because of the assembler’s duty to test or inspect those components for defects. See Nelson v. Coleman Co., 249 S.C. 652, 155 S.E.2d 917, 920 (1967); 3 A.L.R.3d at 1024. Through further refinements, the rule evolved to the point at which the assembler of a finished product was held responsible for the failure of a component part if the assembler held out the finished product as its own. Ford Motor Co. v. Mathis, 322 F.2d 267, 272-73 (5th Cir.1963). For liability purposes under negligence, courts considered the assembler as the manufacturer of the component parts included in the finished product. Id. at 273.

Under strict liability, the focus shifted to whether the assembler sold the defective component part and thus placed it in the stream of commerce. See generally Restatement (Second) of Torts § 402A (1965) (imposing liability upon one who sells a product in a defective condition unreasonably dangerous to the consumer).

Whether the theory of liability is negligence, strict liability, or breach of warranty, authorities recognize several justifications for holding the assembler liable for the failure of a component it did not manufacture. One justification that the “the public has a right to expect that a reputable seller will stand behind its goods, and the burden of accidental injuries is properly placed upon those who market the defective component.” Exxon, 789 F.Supp. at 1527 (citing Restatement (Second) of Torts § 402A cmts. c, e); 63 Am.Jur.2d Products Liability § 140, at 183. Another justification is that the assembler is in a position to exert pressure on the manufacturer of the defective component part to enhance the safety of the manufacturer’s product. Exxon, 789 F.Supp. at 1527; 63 Am.Jur.2d Products Liability § 140, at 183.

Other justifications include the following: the assembler derives an economic benefit from the sale of the product that incorporates the defective component; the assembler has the ability to test and inspect the component when it is in its possession; and by including the defective component in its finished product, the assembler represents to the consumer and ultimate user that the component is safe. Baughman, 780 F.2d at 1132-33; Wood, 703 A.2d at 1331; 63 Am.Jur.2d Products Liability § 140, at 183.

However, to establish assembler liability, the plaintiff must show that the assembler actually sold or otherwise placed the defective product on the market. Baughman, 780 F.2d at 1132 (refusing to hold truck manufacturer liable for defective wheel rim that was placed on vehicle after sale and that manufacturer did not supply); Exxon, 789 F.Supp. at 1527 (refusing to hold designer of mooring terminal liable for defective replacement chain). This requirement follows from the elementary principle in tort law that the plaintiff must show a causal connection between the defendant manufacturer and the product. Ryan v. Eli Lilly & Co., 514 F.Supp. 1004, 1006-07 (D.S.C.1981); see also Annotation, Products Liability: Necessity and Sufficiency of Identification of Defendant as Manufacturer or Seller of Product Alleged to Have Caused Injury, 51 A.L.R.3d 1344,1349 (1973) (stating that, regardless of theory upon which liability is based, “to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product”).

One other principle is important here: “[T]he containers in which products are sold are so closely identified with the sale of the product that the container’s dangerous propensities are the equivalent of the dangerous propensities of the product itself.” Fulbright v. Klamath Gas Co., 271 Or. 449, —, 533 P.2d 316, 320 (1975).

The Restatement (Second) of Torts is in accord with this rule:

The defective condition may arise not only from harmful ingredients, not characteristic of the product itself either as to presence or quantity, but also from ... the way in which the product is prepared or packed. No reason is apparent for distinguishing between the product itself and the container in which it is supplied; and the two are purchased by the user or consumer as an integrated whole. Where the container is itself dangerous, the product is sold in a defective condition. Thus a carbonated beverage in a bottle which is so weak, or cracked, or jagged at the edges, or bottled under such excessive pressure that it may explode or otherwise cause harm to the person who handles it, is in a defective and dangerous condition. The container cannot logically be separated from the contents when the two are sold as a unit, and the liability stated in this Section arises not only when the consumer drinks the beverage and is poisoned by it, but also when he is injured by the bottle while he is handling it preparatory to consumption.

Restatement (Second) of Torts § 402A cmt. h.

One writer sees the rule as one of common sense:

The tide of decisions has swept away the highly metaphysical distinction between the product and the container in which it is sold, which used to perplex some courts in the food cases. The two are sold as an integrated whole, and it is inconceivable that anyone would buy one without the other. When a bottle of beer explodes and puts out the eye of the man about to drink it, surely nothing should be less material than whether the explosion is due to a flaw in the glass of the bottle or to overcharged contents.

W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 99, at 694-95 (5th ed.1984) [hereinafter Prosser].

When the legislature excepted an “assembler” from the immunity provisions of section 613.18(l)(a), we think it had in mind the assembler liability theory exemplified by the foregoing cases. We think all of the justifications for the theory prompted the legislature not to immunize from liability assemblers who incorporate defective component parts into their finished product and then place that product into the stream of commerce.

2. Merits. Viewing the evidence in the light most favorable to Weyerhaeu-ser, we think the jury could find the following facts. Thermogas is in the business of providing LP tanks of various sizes, which it fills with liquid propane, to its customers for use on forklifts. It does so by trucking the LP tanks to its customers on a periodic basis. In the case of Weyerhaeuser, Thermogas delivered approximately fifteen LP tanks per day. When delivering the filled LP tanks, the Thermogas delivery person would pick up the empty LP tanks Weyerhaeuser used on the preceding day.

The Thermogas delivery person would place the full LP tanks he delivered to Weyerhaeuser on racks or shelving in a metal shed used solely for LP tank storage. Each day, the delivery person would remove the empty tanks and replace them with filled tanks. As needed, the Weyer-haeuser employees would take the filled tanks and place them on their forklifts and place the empty tanks in the storage shed. In the three years immediately preceding the fire, Weyerhaeuser did not receive LP tank deliveries from any source other than Thermogas.

The tank in question was a 43.5 pound LP cylinder weighing 26.5 pounds when empty. When properly filled to eighty percent capacity, the tank would hold ten gallons of liquid propane. The tank was manufactured in 1980.

According to federal regulations, LP tanks like those used in Thermogas’ business must not explode when placed in a fire. The regulations also require suppliers like Thermogas to periodically test or recertify the tanks to ensure they remain safe for use. Once a tank is tested, it need not be retested until the applicable period of certification expires. Earlier testing is required if the tank shows (1) bad dents, (2) other evidence of rough usage, (3) corrosion to such an extent as to indicate possible weakness, or (4) it has lost as much as five percent of its official tare weight. The tank in question had an early recertification in 1985 and again in 1987. Such early recertifications were unusual and suggested that something had happened to the tank or there was some reason to suspect a problem. At the time of the fire, the tank in question was two and one-half years past its mandatory testing date.

As Weyerhaeuser’s expert, Richard L. Simpson, testified, the tank exploded prematurely under the circumstances and the premature explosion must have been caused by a defect in the tank. The tank should not have exploded before fire fighters arrived on the scene.

The container — the tank — cannot logically be separated from its contents — the liquid propane — when the two are placed in the stream of commerce as a unit. The finished product was the LP tank filled with liquid propane, which Thermogas placed into the stream of commerce. Thermogas combined a defective component part — its tank — with its liquid propane.

All the justifications for applying assembler liability to Thermogas exist here. Thermogas derives an economic benefit from the sale of a product that included a defective component. Thermogas had the ability to test and inspect the defective component when it was within its possession. Thermogas also had the ability to exert pressure on the manufacturer of the defective component to enhance the component’s safety. Finally, by placing its product into the stream of commerce, Thermogas represented to the consumer and ultimate user — in this case, Weyer-haeuser — that the component was safe. Conversely, Weyerhaeuser had a right to expect that Thermogas would stand behind its product.

Given these facts, we conclude that, as a matter of law, Thermogas was an assembler as that term is used in section 613.18(l)(a). We therefore hold as a matter of law that the immunity provisions of section 613.18(l)(a) did not apply to Ther-mogas, and the district court erred in concluding otherwise.

B. Defective, unreasonably dangerous condition. As to the strict-liability claim, Thermogas seeks to uphold the district court’s directed verdict ruling on another basis: there was insufficient evidence that the tank had a defect rendering the product unreasonably dangerous. Thermogas also asserts that the district court was correct in directing a verdict as to the implied-warranty-of-merchantability claim on the alternative basis that there was insufficient evidence that the tank had a defect.

We agree with Weyerhaeuser that Bredberg v. Pepsico, Inc., 551 N.W.2d 321 (Iowa 1996), is dispositive of these contentions. In Bredberg, a bottle of pop exploded in the plaintiffs hand, injuring him. We held that “[pjroof that a product was sold in a defective, unreasonably dangerous condition can be made by circumstantial evidence.” Bredberg, 551 N.W.2d at 326-27.

1. Defect. In Bredberg, the remains of the exploded bottle were not available for inspection. We held, however, that the plaintiff had produced sufficient evidence of a defect based on expert testimony that the bottle exploded due to a defect in it:

In our view, plaintiffs testimony, corroborated by [his expert], that the bottle exploded can be weighed by a jury as circumstantial evidence that the bottle and/or its contents were in a defective condition at the time they were placed into the stream of commerce. Assuming that the bottle exploded, as we must in this case, it appears that either the bottle or the pressurized product inside was in a defective condition.

Bredberg, 551 N.W.2d at 328 (citations omitted); see also Restatement (Second) of Torts § 402A cmt. h.

As mentioned, here, Simpson testified the tank exploded prematurely under the circumstances, and the premature explosion must have been caused by a defect in the tank. Additionally, Simpson conducted tests supporting his “premature explosion” theory. (We describe those tests in more detail later in this opinion.) Also corroborating Simpson’s opinion are the early recertifications and testimony about them suggesting a problem with the tank. Additionally, the tank was two and one-half years past its mandatory testing date. Viewing this evidence in the light most favorable to Weyerhaeuser, we conclude there was substantial evidence of a defect in the tank.

2. Unreasonably dangerous. A product is unreasonably dangerous if the defect is not “ ‘one contemplated by the user or consumer which would be unreasonably dangerous to him in the normal and intended use or consumption thereof.’ ” Bredberg, 551 N.W.2d at 328 (quoting Alter v. Rodgers Mach. Mfg. Co., 268 N.W.2d 830, 834 (Iowa 1978)).

In Bredberg, we said:

Without hesitation, we believe an exploding bottle of Diet Mountain Dew is unreasonably dangerous as the defect which causes the explosion is not “one contemplated by the user or consumer which would be unreasonably dangerous to him in the normal and intended use or consumption thereof.”

Id; see also Restatement (Second) of Torts § 402A cmt. h.

We likewise believe that the premature explosion of the LP tank here was unreasonably dangerous because the defect that caused the explosion was not one that Weyerhaeuser as a user or consumer would contemplate in the normal and intended use of the tank. At least a jury could reasonably make that finding based on the evidence before it.

IV. Refusal to Instruct Jury Not to Consider Cause of Fire in Determining Thermogas’ Fault.

Weyerhaeuser requested the following jury instruction, which the district court refused to give:

In deciding any of Weyerhaeuser’s claims against Thermogas, whether for strict liability, negligence, or breach of implied warranty, you are not to consider the cause of the fire when determining the fault, if any, of Thermogas.

Weyerhaeuser is claiming error because the district court did not give this instruction. Thermogas contends the court correctly refused to give the instruction primarily because the instruction was not an accurate statement of the “enhanced injury” doctrine. See generally Reed v. Chrysler Corp., 494 N.W.2d 224 (Iowa 1992) (discussing the theory and elements of the “enhanced injury” (crashworthiness) doctrine). Thermogas also asserts that Weyerhaeuser was not entitled to a jury instruction on enhanced injury because the evidence did not support such a claim. In particular, Thermogas argues that Weyer-haeuser failed to present evidence that (1) Thermogas designed the LP tank that exploded; (2) there was a design defect in the LP tank; and (3) there was an alternative safer design, what injuries would have resulted had the alternative safer design been used, and the extent of enhanced injuries attributable to the defective design.

In addition, Thermogas contends that Weyerhaeuser has (1) waived error because it failed to plead the “enhanced injury” doctrine, (2) failed to preserve error because it did not argue the “enhanced injury” doctrine to the district court, and (3) failed to preserve error because it did not object to the introduction of evidence regarding comparative fault. Thermogas finally argues that Weyerhaeuser never offered a correct jury instruction on the “enhanced injury” doctrine.

In response, Weyerhaeuser asserts that Thermogas misunderstands its position. Weyerhaeuser argues it is not asserting and has never asserted that this is an “enhanced injury” case. For this reason, Weyerhaeuser further argues it was not required to (1) plead the “enhanced injury” doctrine, (2) introduce evidence on all the elements of the doctrine, (3) argue that theory to the district court, or (4) .offer a jury instruction reflecting the elements of that doctrine.

The record Weyerhaeuser made on the instructions supports its position. Weyer-haeuser specifically argued that the jury was not to consider the cause of the fire when determining the fault, if any, of Thermogas. Weyerhaeuser pointed out to the district court that the regulations contemplate that LP tanks may well be subjected to fire, and for that reason, fire was foreseeable. The cause of the fire was therefore irrelevant. Weyerhaeuser takes the same position on appeal.

To support its argument that the cause of fire was not relevant, Weyerhaeuser cites, among other cases, New England Mobile Fair, Inc. v. City of Boston, 2 Mass.App.Ct. 404, 313 N.E.2d 149 (1974), and Wollenhaupt v. Andersen Fire Equipment Co., 232 Neb. 275, 440 N.W.2d 447 (1989).

In New England, a fire in the plaintiffs bookstore burned unabated for a time because the defendant city had improperly closed the water valve leading to the sprinkler system in the bookstore. The city alleged contributory negligence on the ground that the bookstore had allowed its employees to smoke in an area where combustible materials were kept. In a bench trial, the trial court found for the city on its defense of contributory negligence and barred recovery. The appellate court reversed and remanded for a determination on the record of the total amount of damage that resulted from the lack of water to the sprinkler system. New England, 313 N.E.2d at 152-53.

On further review after the trial court made such determination, the appellate court allowed the plaintiff to recover the damages (sixty percent of its inventory) caused by the absence of a working sprinkler. Id. at 158. The court did so without consideration of how the fire started. The court stated:

[A] sprinkler system such as the one here involved is designed to control or contain a fire which might start through negligence. [The] plaintiff [never] sought to blame the city for allowing the fire to start; the gravamen of [the] declaration was that the ... plaintiff had suffered a further loss resulting directly from the city’s negligence in preventing the proper operation of the sprinkler.

Id. at 154.

In Wollenhawpt, the plaintiff was working with highly flammable solvents when a fire erupted on his employer’s premises. The plaintiff tried to run but the fire caught him, inflicting severe burns. The plaintiff and his employer sued a fire equipment company that had been responsible for the maintenance and testing of a fire protection system at the employer’s plant. They alleged that the defendant had negligently serviced the fire protection system and as a result the system failed to extinguish the fire at the plant. They further alleged that had the system properly functioned, the plaintiff-employee would have suffered only slight injuries or no injuries at all. The defendant defended on the ground that the employer’s negligence had caused the fire. The trial court instructed the jury to determine whether the employer’s negligence was the sole proximate cause of the fire. Wollenhawpt, 440 N.W.2d at 448-49.

In reversing a verdict in favor of the defendant, the appellate court in Wol-lenhawpt stated:

[The plaintiff] is not claiming that [the defendant] caused the fire that injured him. Instead, the claim is that if [the defendant] had properly serviced [the fire protection system], the fire, whatever its origin, would not have caused [the plaintiff] to suffer severe injury. The origin of the fire in this case was therefore irrelevant.
Again the claim is not that [the defendant] negligently started the fire, but that the fire, whatever its origin, would have been extinguished had the [fire protection system] been properly maintained and, had it been so maintained, [the plaintiff] would not have suffered injury.
If a defendant has a duty to foresee a particular type of harmful force, such as a fire, and guard others against the harm that the force can do, and the defendant fails in this duty, the cause of the fire is irrelevant to the liability of the defendant.

Wollenhaupt, 440 N.W.2d at 449-50 (emphasis added). In the last paragraph of this passage, the court is relying on principles impheating intervening cause, which we think determine the outcome of the issue before us.

An intervening cause is an event that “comes into active operation in producing the result after the negligence of the defendant. ‘Intervening’ is used in a time sense; it refers to later events.” Prosser § 44, at 301. According to the same authority,

[i]f the intervening cause is one which in ordinary human experience is reasonably to be anticipated under the particular circumstances, the defendant may be negligent, among other reasons, because of failing to guard against it; or the defendant may be negligent only for that reason.

Id. at 303, 440 N.W.2d 447.

A defendant
cannot be relieved from liability by the fact that the risk, or a substantial or important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant’s negligence. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant’s responsibility.

Id. at 303-04, 440 N.W.2d 447; accord Stevens v. Des Moines Indep. Cmty. Sch. Dist., 528 N.W.2d 117, 119 (Iowa 1995).

The court, not the jury, applies the rulés restricting a defendant’s responsibility under theories of intervening cause. State v. Garcia, 616 N.W.2d 594, 596 (Iowa 2000). When the intervening cause does not .supersede the defendant’s responsibility, evidence of such cause is not admissible. Id. at 597 (holding that physicians’ allegedly “outrageous” treatment of gunshot victim was not sole proximate cause of victim’s death, and thus expert testimony that physicians’ gross negligence in removing tracheotomy tube from victim was cause of death was not admissible to establish defense of intervening cause in homicide prosecution in which there was substantial evidence that the gunshot wounds were a proximate cause of victim’s death).

Here, Weyerhaeuser is not claiming that Thermogas caused the fire. Rather, Wey-erhaeuser is claiming that, if the LP tank had not been defective and exploded prematurely when exposed to fire, the fire, whatever its origin, would not have caused Weyerhaeuser to suffer the damage it did suffer.

As mentioned, the federal regulations provide that LP tanks like the one here must not explode when placed in a fire. The same regulations require suppliers of such tanks to periodically inspect LP tanks to ensure they remain safe. The LP tank in question was two and one-half years past its mandatory testing date. Additionally, there was testimony that the LP tank had undergone early certifications, suggesting a problem with the tank. Finally, there was expert testimony that the LP tank exploded prematurely under the circumstances and that the premature expíosion must have been caused by a defect in the tank.

In the face of this evidence, it was for the district court, not the jury, to apply the rules of intervening cause. See Garcia, 616 N.W.2d at 596. In applying these rules, we think the district court should have reached the following conclusions. First, Thermogas had a duty to foresee that its LP tanks might be exposed to fire. Second, Thermogas had a duty to foresee that, if one of its tanks was so exposed and was defective, it could explode and cause harm. Third, there was evidence that the LP tank in question was exposed to fire, and because it was defective, it exploded and caused harm. Last; the fire and resulting explosion were therefore foreseeable intervening causes that did not supersede Thermogas’ responsibility. Because the fire and resulting explosion were foreseeable intervening causes, the cause of the fire was irrelevant to Thermogas’ liability.

For these reasons, the district court erred in refusing to instruct the jury that as to Thermogas the cause of the fire was irrelevant. This instruction was necessary because evidence of Weyerhaeu-suer’s negligence regarding the cause of the fire was properly before the jury on Weyerhaeusuer’s claim against Clark (the clamp truck manufacturer).

V. Refusal to Give Res Ipsa Loquitur Instruction.

Weyerhaeuser last contends that the district court erred in refusing to give the jury an instruction on res ipsa loquitur.

Thermogas responds that Weyerhaeuser wras not entitled to such an instruction because it did not plead a claim of general negligence, but rather pleaded specific acts of negligence. Additionally, Thermogas asserts Weyerhaeuser failed to establish that the LP tank (1) was under Thermo-gas’ exclusive control and (2) would have exploded even if ordinary care had been exercised. Finally, to establish a basis for a res ipsa loquitur instruction, Thermogas contends Weyerhaeuser had to eliminate its own negligence as a cause of injury, something Weyerhaeuser failed to do.

A. General principles regarding res ipsa loquitur. Res ipsa loquitur (Latin for “the thing speaks for itself’) is only a rule of evidence. It is not a rule of substantive law. Palleson v. Jewell Co-op. Elevator, 219 N.W.2d 8, 13 (Iowa 1974). Res ipsa loquitur applies when “ ‘(1) the injury is caused, by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used.’ ” Brewster v. United States, 542 N.W.2d 524, 529 (Iowa 1996) (quoting Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682, 686 (Iowa 1993)).

Provided there is substantial evidence to support both elements, the happening of the injury permits — but does not compel — the jury to draw an inference that the defendant was negligent. Mast-land, 498 N.W.2d at 686. In this sense, res ipsa loquitur is a type of circumstantial evidence. Brewster, 542 N.W.2d at 528.

B. Pleadings. The plaintiff may plead, and the district court may submit to the jury, both specific negligence and general negligence under res ipsa loquitur. Id. at 530. The court submits the theories alternatively. Id. If the jury finds for the plaintiff on specific acts of negligence, it should not consider liability under res ipsa loquitur. Id.

Iowa is a notice-pleading state. See Iowa R.Civ.P. 69; Adam v. Mt. Pleasant Bank & Trust Co., 355 N.W.2d 868, 870 (Iowa 1984). A petition need not plead ultimate facts to raise or preserve a claim. Id. The petition is sufficient if it “apprises the opposing party of the incident from which the claim arose and the general nature of the action.” Id. Several reasons lead us to believe Ther-mogas had sufficient notice that Weyer-haeuser was relying on res ipsa loquitur in addition to specific acts of negligence. One of the specifications of negligence was that Thermogas was negligent in supplying a propane tank to Weyerhaeuser that was defective and unreasonably dangerous without specifying how the tank was defective and unreasonably dangerous. We think this was a general allegation of negligence, notwithstanding the district court’s motion-for-new-trial ruling that Thermogas had not pled res ipsa lo-quitur.

Additionally, prior to trial, Thermogas asked the district court in a motion in limine (which was not granted) to preclude Weyerhaeuser from presenting solely circumstantial evidence that the tank would not have exploded in the absence of a defect. This is precisely the type of evidence that res ipsa loquitur permits.

Additionally, at the hearing on pretrial motions, when Thermogas was trying to exclude the testimony of Weyerhaeuser’s expert, Thermogas’ counsel argued:

[Weyerhaeuser’s expert] said in this [supplemental rule 125] disclosure the tank exploded more quickly than a tank of proper integrity. He didn’t say why or how the tank lacked proper integrity, and he did not identify a defect. Based on all his examination, [Weyerhaeuser’s expert] is simply speculating that there must have been a defect. There is no physical evidence of a defect.

In reply, Weyerhaeuser’s counsel stated:

[Weyerhaeuser’s expert] testified at his deposition, and his opinion disclosure in this case clearly indicates, that based on his review of the physical evidence he couldn’t find a defect. The reason is because the tank blew up. His opinion is based on the circumstantial evidence in this case; namely the testimony of the relevant eyewitnesses.

(Emphasis added.)

Thermogas’ motion in limine and counsel’s arguments convince us Thermogas had notice that Weyerhaeuser was relying on res ipsa loquitur in addition to its specific allegations of negligence.

C. Instrumentality under the exclusive control of the defendant. As mentioned, one of the elements of res ipsa loquitur is that the injury is caused by an instrumentality under the exclusive control of the defendant. The district court refused to give a res ipsa loquitur instruction because it believed there was insufficient evidence on this element.

Notwithstanding the “exclusive control” language, a plaintiff relying on res ipsa loquitur need not prove that the defendant had control of the instrumentality when the injury occurred. Palleson, 219 N.W.2d at 13. The plaintiff need only show that the defendant controlled the instrumentality at the time of the alleged negligent act. Id. Additionally, the plaintiff must show by a preponderance of the evidence. (more likely than not) that (1) there was no change in the condition of the instrumentality, and (2) no intervening act that could have caused the event resulting in the injury. Id.

The “exclusive control” requirement is simply another way of saying that the injury must be traced to a specific instrumentality or cause for which the defendant was responsible. Prosser § 39, at 248. On this point, the treatise writer points out what showing the plaintiff must make:

[Where causes for the injury other than a defendant’s negligence are equally probable], there must be evidence which will permit the jury to eliminate them. This means, for example, that a plaintiff injured by the explosion of a beer bottle purchased from a retailer will be required to make some sufficient showing that the bottle was not cracked by mishandling after it left the defendant’s plant. Again, however, the evidence need not be conclusive, and only enough is required to permit a finding as to the greater probability. The plaintiff is not required to do the impossible by accounting for every moment of the bottle’s existence since it left the defendant’s plant; and it is enough if the plaintiff produces sufficient evidence of careful handling in general, and of the absence of unusual incidents, to permit reasonable persons to conclude that, more likely than not, the event was due to the defendant’s negligence.

Id. at 249.

Here, the instrumentality was the tank and liquid propane that produced the explosion. The jury could find from the evidence that Thermogas provided the tank to Weyerhaeuser probably the day before the accident. Henriksen testified he found the tank in its regular location in the storage room and carried it to the clamp truck. He further testified that he inspected the tank for dents, cracks, “anything that was busted on it,” and that he checked the nozzle that is used to open the valve to make sure it was not “busted or cracked.” Henriksen further testified that he opened the valve on the tank one-half turn to allow sufficient propane to flow through the line so the truck could run. He then checked for leaks and found none.

We think from this evidence the jury could reasonably infer there was no change in the tank and liquid propane from the time it left Thermogas’ possession until the explosion. The evidence was sufficient to generate a jury question on the control element of res ipsa loquitur.

We have already concluded that the cause of the fire — Weyerhaeuser’s negligence — was a foreseeable intervening cause and for that reason the cause of the fire was irrelevant. We think the same reasoning applies with respect to the application of res ipsa loquitur.

D. Injury-causing accident would not ordinarily occur in the absence of some negligence. This element is “another way of stating an obvious principle of circumstantial evidence: that the event must be such that in the light of ordinary experience it gives rise to an inference that someone must have been negligent.” Id. at 244. Usually, “the basis of past experience, from which the conclusion may be drawn that such events usually do not occur without negligence, is one common to the whole community, upon which the jury are simply permitted to rely.” Id. at 247. “Even where such a basis of common knowledge is lacking, however, expert testimony may provide a sufficient foundation.” Id.

Res ipsa loquitur applies if “there is no direct evidence to show cause of injury, and the circumstantial evidence indicates that the negligence of the defendant is the most plausible explanation for the injury.” Prosser § 46, at 257. And,

[i]n many cases, the inference to be drawn is a double one, that the accident was caused in a particular manner, and that the defendant’s conduct with reference to that cause was negligent. The inference of negligence may arise either where a definite cause is known, or where the accident is more or less a mystery, with no particular cause indicated.

Id. § 39, at 247-48.

Here, there was no direct evidence of any defect in the tank. However, Weyer-haeuser’s expert testified the premature explosion was the result of a defect in the tank. He based his opinion on the following. First, the expert examined the remnants of the tank. Second, both Henrik-sen and Chorny testified that, when they last saw the clamp truck, the flames were not impinging on the tank. Forty-five seconds later the tank exploded. Third, the expert conducted two tests — one on a normal, properly functioning LP tank to determine how quickly the tank would explode and another when the relief valve did not function.

In the first test, after twenty-eight minutes of direct flame on the bottom of the tank, where the flame would travel as much as it could along the liquid space in the tank, the tank did not explode. The flame had scorched the bottom of the tank.

In the second test, the expert plugged the relief valve so it could not prevent an explosion. He then fired flames directly at the side of the tank at a ninety-degree angle, making contact with the space the liquid and the vapor occupied. After thirteen minutes the tank exploded.

Additionally, Fire Marshal Thomas Joseph Lanigan, who investigated the fire’s origin, testified that in his opinion, the tank exploded prematurely. He also testified that he called the National Fire Protection Association, which authors the code regulations fire marshals follow, and gave them the “scenario of what had happened.” The association responded that it had no reports of an LP tank explosion happening as quickly as this one had happened.

We must view all of this evidence in the light most favorable to Weyerhaeuser. In doing so, we think the evidence was sufficient to generate a jury question on the second prong of res ipsa loquitur.

The district court erred in not instructing on res ipsa loquitur.

VI. Harmless Error.

Finally, Thermogas seeks to uphold the verdict in this case by contending the failure to submit strict liability and implied warranty was harmless error as was the district court’s failure to instruct on res ipsa loquitur. The basis for this contention is the jury’s determination that Thermogas’ actions though negligent were not the proximate eause of Weyerhaeuser’s damages.

As Weyerhaeuser points out, a jury deliberating upon multiple theories of liability must reach independent decisions as to each question on a special verdict form. Because the jury found no proximate cause on the theory of specific acts of negligence does not mean the jury would have done the same as to the strict-liability and implied-warranty claims. The latter claims are theories having elements different from the elements of negligence.

As for res ipsa loquitur, Weyerhaeuser was deprived of an instruction that would have allowed the jury to infer not only negligence but causation from the facts and circumstances surrounding an otherwise unexplained explosion. For all we know, the jury found no proximate cause because there was lacking direct evidence as to the defect in the tank and the resulting explosion.

Finally, the jury was allowed to consider the cause of the fire — Weyerhaeuser’s negligence — in determining Weyerhaeu-ser’s claim of negligence against Thermo-gas. The jury could have therefore believed Weyerhaeuser’s negligence was the sole proximate cause of its damages. This is especially true because the jury was allowed to consider Chorny’s action in driving the truck with the parking brake engaged as negligence against Weyer-haeuser. This was the action that precipitated the fire. The outcome might well have been different if the jury had been instructed to disregard the cause of the fire in deciding the negligence claim.

For these reasons, we reject Thermogas’ harmless-error contention.

VII. Disposition.

In sum, we conclude that the trial court should have (1) submitted to the jury Wey-erhaeuser’s claims of strict liability and breach of implied warranty of merchantability, (2) instructed the jury to disregard the cause of the fire in considering Weyer-haeuser’s claims against Thermogas, and (3) instructed the jury on res ipsa loqui-tur. Its failures in each of these instances were prejudicial and warranted a new trial. The district court’s failure to grant a new trial was error. We therefore reverse and remand for a new trial.

Although we have not addressed all of the parties’ contentions, we have carefully considered them. Those we have not addressed either lack merit or were not preserved for our review.

REVERSED AND REMANDED.

All justices concur except TERNUS and CADY, JJ., who concur in part and dissent in part. McGIVERIN, S.J., participates in place of CARTER, J., who takes no part.

TERNUS, J.

(concurring in part and dissenting in part).

I concur in the majority opinion m all respects except Division V. I think the trial court correctly refused to instruct on the res ipsa loquitur doctrine. Although expert testimony established that the explosion would not have occurred unless there was a defect in the tank, I do not think this testimony establishes that the explosion would not have occurred in the absence of Thermogas’s negligence. There was no evidence that a defect would not have existed unless Thermogas was negligent or that the defect would have been discovered had Thermogas exercised ordinary care in its inspection or recertifi-cation of the tank. Therefore, I think there was insufficient evidence that the accident would not ordinarily occur in the absence of Thermogas’s negligence.

CADY, J., joins this concurrence in part and dissent in part.


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Shirley A. DVORAK, an Attorney at Law of the State of Minnesota.
    No. C7-95-1179.
    Supreme Court of Minnesota.
    Jan. 2, 2001.
   ORDER

The Director of the Office of Lawyers Responsibility has filed a petition for disciplinary action based upon the order of the Supreme Court of North Dakota suspending respondent Shirley A. Dvorak for one year commencing January 1, 2001, for professional misconduct warranting public discipline, namely, sending a letter to a potential witness that attempted to obstruct another party’s access to evidence and sending a letter to that witness’ employer, a portion of which had no substantial purpose other than to embarrass the witness, in violation of Rules 3.4(a) and 4.4, Minnesota Rules of Professional Conduct.

Respondent waives her right to answer and to proceedings under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a one-year suspension to run concurrently with her North Dakota suspension.

This court has independently reviewed the file and approves the jointly recommended discipline.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Shirley A. Dvorak is suspended from the practice of law for one year commencing January 1, 2001, and that the provisions of Rule 18(a)-(e), RLPR, are not waived unless respondent is granted reinstatement in North Dakota following a reinstatement hearing in North Dakota. Respondent shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT

Alan C. Page Associate Justice

RUSSELL A. ANDERSON, J., took no part in the consideration or decision of this ease.


author: Russell A. Anderson Associate Justice

text:
    Rodney I. GROTH, Respondent, v. DOTSON COMPANY, and American Compensation Insurance Company/RTW, Inc., Relators, Dotson Company, and American Mutual Liability/MIGA, Dotson Company and Travelers Insurance Company, Respondents, MII Life Inc., et al., Intevenors, and Special Compensation Fund.
    Nos. C5-00-1746, C7-00-1747.
    Supreme Court of Minnesota.
    Jan. 9, 2001.
    Philip R. Reitan, Reitan Law Office, Mankato, for Employee.
    Mark A. Kleinschmidt, Cousineau, McGuire & Anderson, Chtd., Minneapolis, for Dotson and American Compensation Ins., Employer’s Insurer.
    Richard C. Pranke, John Ness & Assoc., St. Louis Park, for Dotson and Travelers Ins., Employer’s Insurer.
    Jane McMahon, St. Paul, for Mil Life and Blue Cross/Blue Shield, Employer’s Insurer.
    Michael D. Miller, McCollum, Crowley, Vehanen, Moschet & Miller, Ltd., Bloom-ington, for American Mut. Liability, Employer’s Insurer.
    Sara Stoltman, St. Paul, for Special Comp. Fund, Employer’s Insurer.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 14, 2000, be, and the same is, affirmed without opinion. See Minn.R.CivApp.P. 136.01, subd. 1(b).

BY THE COURT

Russell A. Anderson Associate Justice