author: NEUMANN, Justice.

text:
    2000 ND 181
    James FANDRICH, Julie Knodel, and Walter Fehr, Petitioners, Appellants, and Cross-Appellees, v. WELLS COUNTY BOARD OF COUNTY COMMISSIONERS, Rusland Township Board of Township Supervisors, Forward Township Board of Township Supervisors, and Wells County Water Resource Board, Respondents, Appellees and Cross-Appellants.
    No. 20000054.
    Supreme Court of North Dakota.
    Oct. 26, 2000.

      Joseph J. Cichy, Olson Cichy, Bismarck, for petitioners, appellants, and cross-appel-lees.
    Gary R. Wolberg, Fleck, Mather & Strutz, Bismarck, for respondents, appel-lees, and cross-appellants.
   NEUMANN, Justice.

[¶ 1] James Fandrich, Julie Knodel and Walter Fehr (“landowners”) appealed from an amended judgment approving a flood control plan adopted by the Wells County Board of County Commissioners, Rusland Township Board of Township Supervisors, Forward Township Board of Township Supervisors, and Wells County Water Resource Board (collectively referred to as “County”). The County cross-appealed, challenging the trial court’s failure to award it attorney fees, costs and disbursements. We conclude the trial court did not err in approving the flood control plan and did not err in refusing to award attorney fees, costs and disbursements to any of the parties. We affirm.

I

[¶ 2] The landowners own property along the James River in Wells County. In May 1997, the landowners petitioned the court for a writ of mandamus ordering the County to provide sufficient openings through its roads so they do not act “as dams and obstructions to the flow of water,” because the existing openings allegedly were inadequate to prevent flooding of their property. The landowners identified several road crossings they believed required improvement. Following a hearing, the trial court dismissed the landowners’ claim for monetary damages, but granted the writ of mandamus. The writ required the County to inspect, study and adopt a flood control plan for the road crossings on or before April 30, 1999, which would permit “a maximum quantity of water to flow freely and unimpeded in the James River in accordance with the determination of the North Dakota State Water Commission and the laws” of North Dakota. The court also awarded the landowners “their statutory costs, reasonable engineering costs, reasonable deposition costs and one-half of their attorney fees.” No appeals were taken from this judgment.

[¶ 3] The County timely adopted a flood control plan with proposed improvements for the various road crossings and had the plan published in the official county newspaper. The landowners moved the court to review the County’s plan to determine if it met the requirements of the writ of mandamus and filed their objections to the plan. The court held a hearing in September 1999, and conducted an onsite viewing of the crossings with the parties and counsel. In February 2000, the trial court approved the County’s flood control plan, but revised it by incorporating a stipulation requiring all culverts not at riverbed level to be placed at riverbed level. The court did not grant any of the parties attorney fees, engineering costs or statutory costs. These appeals followed.

II

[¶ 4] The landowners contend the trial court erred in approving the County’s flood control plan because it did not comply with the writ of mandamus.

A

[¶ 5] The trial court’s issuance of the writ of mandamus was not appealed and is not questioned in this appeal. Rather, the issue is whether the County complied with the writ’s requirement that it adopt a flood control plan and make reasonable efforts to implement the plan in accordance with state law and the determination of the State Water Commission.

[¶ 6] Generally, a writ of mandamus may be issued to compel official action by a government entity, but not to control official discretion in acting. See Midland Produce Co. v. City of Minot, 70 N.D. 256, 257, 294 N.W. 192, 193 (1940); Standard Oil Co. v. Engel, 55 N.D. 163, 174, 212 N.W. 822, 826 (1927). Thus, while a court may issue a writ ordering a government entity to comply with applicable law, it cannot control the government entity’s discretion in determining the method to be used in complying with the law. See State v. Coordinating Board for Higher Education, 802 S.W.2d 533, 535 (Mo.App.1991); State v. Troy Civil Service Commission, 118 Ohio App. 345, 194 N.E.2d 778, 780 (1963). The writ in this case did not control the County’s discretion in developing the methods proposed to comply with the writ and state law.

[¶ 7] Because the issue in this case is whether the County complied with the court’s order, our standard of review is structured by the court’s order itself. We are required to review the County’s discretionary actions in determining the methods to be used in complying with the law. The discretionary actions of government entities are not beyond the scope of judicial review, but we apply a very deferential standard to correct abuses of that discretion. See Abrahamson v. Amos, 245 N.W.2d 888, 891 (N.D.1976). In reviewing a decision by a local government entity, a court must not substitute its judgment for that of the government entity, but rather must determine whether the entity erroneously exercised its discretion. Shaw v. Burleigh County, 286 N.W.2d 792, 797 (N.D.1979). We independently review the local government’s actions, and we apply the same standard of review as the district court to determine whether the local government’s action comports with a correct interpretation of the law and whether the local government has acted in an arbitrary, capricious, or unreasonable manner. Water Resource District v. Burleigh County, 510 N.W.2d 624, 627 (N.D.1994). A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation. Anderson v. Richland County Water Resource Board, 506 N.W.2d 362, 367 (N.D.1993).

B

[¶ 8] There are five road crossings at issue in this case. They are unpaved township roads that have been in use for more than 50 years. The sites are known in this litigation as 1, 2, 3, and 5-6. Sites 5-6 have been considered as one site for purposes of the County’s proposed alterations. The James River in this part of Wells County flows from south to north. Sites 5-6 lie furthest to the south. Site 1 lies furthest to the north. The terrain in the area is very flat, causing water to move downstream very slowly and to spread out on the landowners’ farmland.

[¶ 9] Site 1, a former farm-to-market road, is the most heavily traveled road at issue. Before October 1997, site 1 had two six-foot culverts and one five-foot culvert. According to the landowners, water occasionally backs up from the road for more than three and one-half miles, flooding more than 4,500 acres of farm and ranch land. After flooding in spring 1997, one of the six-foot culverts and the five-foot culvert were removed by the County, which then installed a ten-foot by five-foot concrete doublebox culvert to improve the flow through the site. Based on advice from its engineer, the County proposed to add a four-foot by 80-foot culvert, which it contends, along with the doublebox culvert installed in 1997 and an existing six-foot culvert, would pass a 15-year flood event when water is at the top of the roadway. The estimated cost of the improvements is $3,200.

[¶ 10] The landowners objected to this plan, alleging it would not allow water to pass quickly enough, resulting in flooding which would be higher and would last longer. The landowners proposed two different options. One option would provide for a 275-foot long “Texas crossing” at an elevation of 1600.5 feet, which could be installed on either side of the existing structures. The landowners’ engineer testified the Texas crossing would pass a 25-year flood event resulting in one and one-half feet of water over the road. The second option would involve' the installation of an additional ten-foot by five-foot doublebox culvert that would pass a 25-year flood event.

[¶ 11] Site 2 is a minimum maintenance road at an elevation of 1603.5 feet which has three five-foot culverts and a four-foot culvert located about three to four feet above riverbed level. According to the landowners, 60 to 70 acres of land become flooded before water reaches the culvert openings. The County proposed to lower the road two feet for a distance of 200 feet, place the existing culverts at river channel bottom, install riprap on the inslopes, and install appropriate signs. Although the road currently overflows at less than a five-year flood event, the County predicts its proposal would drop the overflow elevation by one foot for a 10-year flood event, and by .7 foot for a 25-year flood event. The estimated cost of the County’s proposal is $9,600.

[¶ 12] The landowners want the road lowered further. The landowners’ engineer proposed creating a Texas crossing by lowering the road one foot lower than the County proposed. The landowners’ engineer alternatively recommended raising the road to 1606 feet and installing four six-foot culverts and one four-foot culvert. This option would successfully pass the flows only if the County would place an additional ten-foot by five-foot doublebox culvert at site 1.

[¶ 13] Site 3 is a minimum maintenance road at an elevation of 1603.6 feet, which essentially acts as a Texas crossing and has two 18-inch culverts and one four-foot culvert. Water tops the road at less than a two-year flood event. The County proposed installing a double three-foot by 40-foot culvert at riverbed level, removing the two 18-inch culverts presently in place, leaving the four-foot culvert in place, maintaining the same grade, and installing water crossing signs and riprap on the in-slopes. The estimated cost of the improvements is $4,900.

[¶ 14] The landowners contend this plan does not provide sufficient relief. The landowners’ engineer proposed lowering the roadway elevation to 1601 feet for a distance of 250 feet, and placing the existing culverts at river channel bottom. The landowners contended this proposal would allow water to move more efficiently and quickly, resulting in less flooded land. <•

[¶ 15] The road at sites 5-6 originally had two 24-foot bridges which were replaced by a 16-foot by 10-foot flat bottom arched culvert. After the arched culvert washed out in 1993, other culverts were installed and the road was lowered, but 90 to 100 acres of land have been flooded each year since then. Although the road is a minimum maintenance road, it is used by travelers during non-winter months. The County proposes to enlarge by 200 feet the existing overflow area at the present elevation of 1617.5 feet, lower an existing two-foot culvert and three-foot culvert to river channel bottom, install riprap on the in-slopes, and install water crossing signs. An existing six-foot culvert and three-foot culvert are already at river channel bottom. Under the County’s proposal, estimated to cost about $15,500, water flowing over the road during a 10-year flood event would be one foot deep.

[¶ 16] The landowners contend this plan also does not provide them sufficient relief. The landowners’ engineer proposed lowering the road elevation three feet for a distance of 50 feet and lowering the culverts to river channel bottom. Alternatively, the landowners proposed raising the road two and one-half feet, lowering a six-foot culvert to river channel bottom, and installing a double concrete 12-foot by six-foot culvert.

[¶ 17] The total cost estimate for the County’s proposals for all of the sites is $33,200. The improvements were to begin in 1999 and end in 2002, with site 1 being given first priority. Although the landowners did not estimate the costs for the Texas crossings they proposed, the County was opposed to lowering the roads to those levels because of the dangers posed to motorists who might drive through flooded crossings at night. According to the County, the landowners’ proposals could cost more than $100,000 to implement.

C

[¶ 18] The landowners contend the County’s flood control plan is arbitrary, capricious, and unreasonable because it does not comply with the water law statutes and is not in accordance with the determination of the State Water Commission. Specifically, they contend the plan violates N.D.C.C. §§ 24-03-06 and 24-03-08, which at the time the writ of mandamus was issued, provided:

24-03-06. Method of construction of highway ditches. Any and all highways of any kind hereafter constructed or reconstructed by the department, any board of county commissioners, any board of township supervisors, their contractors, subcontractors or agents, or by any individual firm or corporation, must be so designed as to permit the waters running into such ditches to drain into coulees, rivers, and lakes according to the surface and terrain where such highway or highways are constructed in accordance with scientific highway construction and engineering so as to avoid the waters flowing into and accumulating in the ditches to overflow adjacent and adjoining lands. In the construction of highways, as herein provided, the natural flow and drainage of surface waters may not be obstructed, but such water must be permitted to follow the natural course according to the surface and terrain of the particular terrain.

24-03-08. Determinations of surface water flow and appropriate highway construction. Whenever and wherever a highway under the supervision, control, and jurisdiction of the department or under the supervision, control, and jurisdiction of the board of county commissioners of any county has been or will be constructed over a watercourse or draw into which flow surface waters from farmlands, the state water commission, upon petition of the majority of landowners of the area affected, shall determine as nearly as practicable the maximum quantity of water, in terms of second feet, which such watercourse or draw may be required to carry. When such determination has been made by the state water commission, it is the duty of the department or the board of county commissioners, as the case may be, upon notification of such determination, to install a culvert or bridge of sufficient capacity to permit such maximum quantity of water to flow freely and unimpeded through such culvert or under such bridge.

[¶ 19] These water law statutes impose upon a township a duty to not construct or reconstruct township roads in a way that obstructs the natural flow and drainage of surface waters. See, e.g., Ness v. Ward County Water Resource Dist., 1998 ND 191, ¶ 14, 585 N.W.2d 793; Kadlec v. Greendale Tp. Bd. of Tp. Supervisors, 1998 ND 165, ¶ 18, 583 N.W.2d 817. When a township road is constructed or reconstructed, N.D.C.C. § 24-03-06 requires (1) the natural flow and drainage of surface waters must be permitted to follow the natural drainage pattern according to the natural terrain of the land, (2) drainage must be provided for any water that might accumulate in ditches along roadways in order to prevent overflowing onto adjoining lands, and (3) the best methods of finding the natural outlet for the surface waters must be determined by the township in accordance with good engineering practices. Ness, at ¶ 14.

[¶ 20] Nevertheless, political subdivisions have no duty to provide “perfect ” drainage. Little v. Burleigh County, 82 N.W.2d 603, 613 (N.D.1957) (emphasis in original). This principle is demonstrated in Huber v. Oliver County, 1999 ND 220, 602 N.W.2d 710. In Huber, the landowners argued, because N.D.C.C. § 24-03-08 specifically provided culverts must be installed with sufficient capacity to permit the flow of the “maximum quantity of water” the watercourse “may be required to carry,” the county had a duty to install culverts with sufficient capacity to withstand any type of flood event. Id. at ¶ 16. Recognizing “it is not practical or feasible to provide drainage structures sufficient to cope with the most cataclysmic of events,” we rejected the landowners’ unreasonable interpretation and construed “the statutes as imposing an obligation upon the County to maintain the natural flow and drainage of surface waters to the extent established engineering standards or sound engineering design practice would require as prudent under the circumstances.” Id. at ¶ 17. In Huber, we affirmed the County’s installation of an additional culvert with capacity to protect the landowners’ farm buildings and approach road from a 100-year flood event and 50-year flood event, respectively, which were well within the parameters of the Department of Transportation’s design standards for stream crossing locations at North Dakota highways and secondary roads. Id. at ¶¶ 18-19. Huber illustrates there is an implied standard of reasonableness in applying N.D.C.C. §§ 24-03-06 and 24-03-08.

[¶ 21] Effective August 1, 1999, the Legislature amended N.D.C.C. §§ 24-03-06 and 24-03-08. Section 24-03-06, N.D.C.C., was amended to replace the requirement that highways be constructed in accordance with “scientific highway construction and engineering,” with the phrase, “the stream crossing standards prepared by the department and the state engineer....” 1999 N.D. Sess. Laws ch. 248, § 1. The statute was also amended to provide “[i]n the construction of highways the natural flow and drainage of surface waters to the extent required to meet the stream crossing standards •prepared by the department and the state engineer may not be obstructed.... ” Id. (amended language emphasized). The statute was farther amended to protect government entities and others from liability for damages “caused to any structure or property by water detained by the highway at the crossing if the highway crossing has been constructed in accordance with the stream crossing standards prepared by the department and the state engineer.” Id. Section 24-03-08, N.D.C.C., was similarly amended to delete reference to the “maximum quantity of water, in terms of second feet, which such watercourse or draw may be required to carry,” and replace it with the phrase, “design discharge that ‘ihe crossing is required to carry to meet the stream crossing standards prepared by the department and the state engineer.” 1999 N.D. Sess. Laws ch. 248, § 2. It was further amended to prohibit damage liability “if the highway crossing has been constructed in accordance with the stream crossing' standards prepared by the department and the state engineer.” Id.

[¶ 22] The legislative history of the amendments reflects the reason for the changes was to promote uniformity throughout the state by having stream crossing standards prepared by-the Department of Transportation and the state engineer. See Hearing on H.B. 1310 Before the Senate Political Subdivisions Committee, 56th N.D. Leg. Sess. (February 26, 1999) (testimony of State Engineer David Sprynczynatyk). Local political subdivisions were uncertain about their engineering responsibilities. Because a road cannot be engineered to take into consider-, ation all conceivable flood events, the political subdivisions were forced to perform “a balancing act between landownersf] rights and the economics of maintaining quality roads at a price the township can afford.” Hearing on H.B. 1310 Before the House Political Subdivisions Committee, 56th N.D. Leg. Sess. (January 21, 1999) (testimony of Ted D. Seibel, Wells County State’s Attorney). Subsequent amendments to statutes may be used in ascertaining the legislative intent of earlier versions of the statutes. See, e.g., Effertz v. North Dakota Workers Compensation Bureau, 525 N.W.2d 691, 693 (N.D.1994). The amendments to the statutes suggest the concept of reasonableness permeates the statutory mandates, and the amendments merely assigned the responsibility for determining the measure of reasonableness to the Department of Transportation and the state engineer.

[¶ 23] The landowners argue the stream crossing standards relied upon by the County in this case are inapplicable because the pre-1999 version of the statutes controls and because the standards were not formally promulgated as rules under N.D.C.C. ch. 28-32. Assuming the landowners are correct and the prior version of the statutes governs, we find the County did not err in relying on the stream crossing standards. Even though not formally promulgated as rules, those standards qualify as evidence of “established engineering standards or sound engineering design practice” under the Huber reasonableness analysis. Huber, at ¶¶ 17-18.

[¶ 24] The landowners’ arguments in this case can be summarized as an attack on the reasonableness of the County’s proposed flood control improvements. However, the record reflects the County’s proposals would substantially meet the 15-year flood event stream crossing standard for off-system county roads in North Dakota, even though the disputed roads are only low maintenance township roads. The flow studies relied on by the landowners reasonably could be viewed as skewed by years of unusually heavy precipitation. The trial court took judicial notice of heavy rainfalls during summer 1993, heavy snows during the winter of 1996-1997, heavy flooding during spring 1997, and the wet cycle North Dakota has experienced during the 1990s. The court recognized the County should not be required to improve drainage to meet the flooding experienced in 1993 and 1997, because it would possibly result in the installation of devices required only on the Interstate highway system.

[¶ 25] The County, for the most part, rejected the landowners’ recommendations of using Texas crossings, which are effective in allowing a greater amount of water to flow more quickly, because of the potential hazard to the traveling public. The court noted the landowners’ alternative plans disregarded the costs of construction and the limited amount of funds available to the various township boards, which have other roads and structures to maintain.

[¶ 26] Arguably, the landowners may have a “better” plan purely in terms of draining the maximum quantity of water because their proposals would pass a 25-year flood event. However, we cannot say the County’s plan is arbitrary, capricious, or unreasonable. The County balanced many considerations, including the safety of persons who use the roads, the amount of road usage, the concerns of upstream and downstream landowners, and the costs of the various plans and available funding. We conclude the County did not abuse its discretion in adopting the flood control plan, and the trial court did not err in ruling the plan complied with the writ of mandamus.

Ill

[¶ 27] The landowners argue the trial court erred in refusing to award them attorney fees, engineering costs and statutory costs incurred in challenging the County’s flood control plan.

[¶ 28] When the unappealed writ of mandamus was issued, the trial court awarded the landowners their costs and one-half their attorney fees as “damages” under N.D.C.C. § 32-34-11. The landowners claim their subsequent challenge to the County’s flood control plan is merely a continuation of the mandamus proceeding and, under the law of the case doctrine, they are entitled to attorney fees and costs in this proceeding. The law of the case doctrine applies most commonly to situations where an appellate court has passed on a legal question and remanded to the trial court for further proceedings. See Brezinka v. Bystrom Bros., Inc., 403 N.W.2d 841, 843 (Minn.1987). However, this Court has analyzed the doctrine in cases which did not involve a prior appeal. See Strom-Sell v. Council for Concerned, Citizens, Inc., 1999 ND 132, ¶¶ 10-14, 597 N.W.2d 414. Under the law of the case doctrine, a legal question decided by an appellate court will not be differently determined in a subsequent appeal in the same case if the facts remain the same. Matter of Estate of Schmidt, 1997 ND 244, ¶ 9, 572 N.W.2d 430.

[¶ 29] When it issued the writ of mandamus, the trial court awarded the landowners $23,836.26 for one-half their attorney fees, and their engineering and statutory costs. That amount was obviously the costs incurred, by the landowners in obtaining the writ of mandamus. The writ of mandamus does not state the landowners should be entitled to attorney fees and costs if they test the County’s compliance with the writ at some point in the future. The trial court, when issuing the writ of mandamus, did not decide the legal question of the landowners’ entitlement to attorney fees and costs in a possible future action challenging the County’s compliance with the writ. Consequently, the law of the case doctrine does not apply, and does not entitle the landowners to attorney fees and costs in this proceeding.

[¶ 30] In its cross-appeal, the County argues the trial court erred in not awarding it attorney fees, costs, and disbursements as the prevailing party under N.D.C.C. § 28-26-06.

[¶ 31] The County acknowledges the absence of a statute specifically ‘ allowing an award of attorney fees in these circumstances is fatal to its request for attorney fees. See, e.g., Erway v. Deck, 1999 ND 7, ¶ 14, 588 N.W.2d 862 (holding attorney fees are not allowed to a successful litigant unless expressly authorized by statute or agreement). Under N.D.C.C. § 28-26-10, “costs may be allowed for or against either party in the discretion of the court,” and the County has not established an abuse of that discretion in this case. The determination of who is a prevailing party for an award of disbursements, under N.D.C.C. § 28-26-06 is a question of law on which we conduct a de novo review. Braunberger v. Interstate Engineering, Inc., 2000 ND 45, ¶ 13, 607 N.W.2d 904. Here, the trial court ultimately upheld the major portions of the County’s plan, but the landowners’ action to challenge the County’s plan resulted in a stipulation incorporated in the judgment requiring all culverts be installed at riverbed level. This stipulation benefitted the landowners. Therefore, both sides prevailed. When each party prevails on some issues, there is no single “prevailing party” against whom disbursements may be taxed. See Earthworks, Inc. v. Sehn, 553 N.W.2d 490, 496 (N.D.1996).

[¶ 32] We conclude the trial court did not err in refusing to award any of the parties their attorney fees, costs, and disbursements.

IV

[¶ 33] The amended judgment is affirmed.

[¶ 34] GERALD W. VANDE WALLE, C.J., MARYMUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ. concur.

      . According to the County’s engineer, a "true Texas crossing” is a road built at riverbed level which allows water to pass over it freely. According to the landowners’ engineer, Texas crossings create larger openings and lower the surface elevation of the water being discharged, resulting in less land being flooded. Texas crossings are not usable during periods of heavy runoff.

      . In the event of an appeal, the court ordered the improvements begin in 2001 and be completed by 2004.

      . The trial judge who issued the writ of mandamus was not the same judge who presided over the landowners' challenge to the County’s flood control plan.


source: Caselaw Access Project

license: Public Domain

text:
    2000 ND 187
    Joseph F. SCHAEFER and LaVonne J. Schaefer, Plaintiffs and Appellants, v. SOURIS RIVER TELECOMMUNICATIONS COOPERATIVE and Gerald Pettys, Defendants and Appellees.
    No. 20000011.
    Supreme Court of North Dakota.
    Oct. 26, 2000.

      Robert V. Bolinske, Bismarck, for plaintiffs and appellants.
    James E. Nostdahl of Pringle & Herig-stad, Minot, for defendants and appellees.
   NEUMANN, Justice.

[¶ 1] Joseph and LaVonne Schaefer appeal from the trial court's judgment entered on a jury verdict dismissing their action against Souris River Telecommunications Cooperative and Gerald Pettys. The Schaefers also appeal the trial court’s denial of their motion for a new trial. We conclude the trial court did not commit reversible error, nor did it abuse its discretion in denying a new trial. We affirm.

I

[¶ 2] On June 1, 1993, passenger Joseph Schaefer was injured when his vehicle was rear-ended by a Souris River Telecommunications Cooperative vehicle driven by employee Gerald Pettys. The Schaefers sued Pettys and Souris River Telecommunications Cooperative (collectively “SRT”) in 1997, seeking damages for Joseph Schaefer’s medical expenses allegedly resulting from the accident. SRT admitted liability for the accident, but denied Schae-fer sustained a “serious injury,” a threshold requirement for seeking damages in a tort action under the no-fault auto accident reparations law. N.D.C.C. § 26.1-41-08(1). A “serious injury” is “an accidental bodily injury which results in death, dismemberment, serious and permanent disfigurement or disability beyond sixty days, or medical expenses in excess of two thousand five hundred dollars.” N.D.C.C. § 26.1-41-01(21).

[¶ 3] The parties stipulated to the foundation of medical records during pretrial conference and during trial. At trial, through testimony of LaVonne Schaefer, the Schaefers attempted to introduce two documents into evidence to show Joseph Schaefer had exceeded the $2,500 threshold required to establish a “serious injury.” One of the documents, plaintiffs’ exhibit 16, was a drug store printout of Joseph Schaefer’s prescriptions from June. 14, 1993, to January 18, 1999, on which La-Vonne Schaefer had highlighted the allegedly accident-related prescriptions. The other, plaintiffs’ exhibit 14, was a typed summary of the highlighted prescriptions from the drug store printout. The allegedly accident-related prescriptions totaled $2,229.65. The trial court excluded the two documents from evidence, but allowed LaVonne Schaefer to testify as to the total amount.

[¶ 4] The jury returned a special verdict finding Joseph Schaefer did not suffer a “serious injury.” Based on that verdict, the trial court entered judgment dismissing the Schaefers’ action. The Schaefers moved for a new trial, arguing the trial court erred in excluding admissible evidence. The trial court denied the motion. The Schaefers appeal from the judgment and from the denial of their motion for a new trial.

II

[¶ 5] The Schaefers argue the trial court erred by excluding admissible evidence consisting of a printout of Joseph Schaefer’s prescriptions and a summary of that printout. Relying on Tuhy v. Schlabsz, 1998 ND 31, 574 N.W.2d 823, the Schaefers assert the trial court impermis-sibly weighed the credibility of the Schae-fers’ documentary evidence. SRT maintains the trial court correctly excluded the exhibits after determining they did not meet the competency, relevance, and materiality requirements to establish foundation.

[¶ 6] In Tuhy, Sandra Tuhy, a passenger in a car accident, offered her affidavit summarizing accident-related medical expenses, totaling $3,508.86, in an attempt to show she had met the $2,500 threshold requirement of a “serious injury,” and thereby defeat a motion for summary judgment on that issue. Tuhy, 1998 ND 31, ¶ 10, 574 N.W.2d 823,. The trial court concluded Tuhy had not met the $2,500 threshold, because her affidavit of allegedly accident-related medical expenses was not reliable. Id. at ¶ 12. In reaching its conclusion, the trial court reasoned that Tuhy had, at various times, provided inconsistent accident-related medical expense totals of $3,774.58, $3,508.86, and $2,300.00. Id. at ¶ 12. The court also relied on the depositions of four orthopedic surgeons who treated her and who were unable to say, with reasonable medical certainty, the injuries and expenses Tuhy claimed were caused by the accident. Id. at ¶ 12. Tuhy’s doctors testified some of her problems were attributable to degenerative conditions unrelated to the accident. Id. at ¶ 13. The trial court excluded her evidence of past medical expenses, characterizing her affidavit summaries as “confusing” and “not reliable evidence.” Id. at ¶ 14. On appeal, this Court determined the trial court impermissibly weighed the credibility of Tuhy’s evidence. Id. at ¶ 14.

[¶ 7] Here, the Schaefers attempted to introduce the documents through the testimony of LaVonne Schaefer. SRT initially objected for lack of foundation. The trial court recessed for approximately 45 minutes to examine the evidence by comparing the medications listed in the two proposed exhibits to Joseph Schaefer’s medical records. During their offer of proof, the Schaefers acknowledged that more prescriptions were highlighted on exhibit 16, the drug store printout, than were accident related, and that the summary, exhibit 14, also included prescriptions that were not accident related. At that point, SRT asserted much of the offered material simply did not relate to the injuries at issue in the lawsuit. Joseph Schaefer’s medical records had already been admitted into evidence, documenting visits to his primary treating physician from the early 1980s through the date of the trial. The records stated the reason for each visit and the medications prescribed. The records established Joseph Schaefer’s physician had prescribed several medications for him for conditions unrelated to the 1993 accident. Because the printout included highlighted items and the summary included prescriptions not related to the accident, the trial court concluded the exhibits would have been confusing and misleading to the jury. The Schaefers offered to amend the exhibits to exclude prescriptions for the drug Diflucan, which the trial court had identified as not accident related. SRT objected, arguing other prescriptions were similarly not accident related, and the trial court sustained the objection based on its review of Joseph Schaefer’s medical records.

[¶ 8] The Schaefers’ argument that the trial court impermissibly weighed the credibility of their evidence is misplaced. Although factually similar, Tuhy involved an appeal from a summary judgment dismissing the Tuhys’ action. Id. at ¶ 1. Summary judgment is a procedural device used for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, if no dispute exists as to the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Mandan Educ. Ass’n v. Mandan Public School Dist. No. 1, 2000 ND 92, ¶ 6, 610 N.W.2d 64. In assessing evidence submitted for a motion for summary judgment a trial court is not permitted to weigh the evidence, determine credibility, or attempt to discern the truth of the matter. Opp v. Source One Management, Inc., 1999 ND 52, ¶ 16, 591 N.W.2d 101. Rather, a trial court deciding a motion for summary judgment is required to view the evidence in the light most favorable to the resisting party. Sullivan v. Pulkrabek, 2000 ND 107, ¶ 6, 611 N.W.2d 162. In Tuhy, the trial court impermissibly weighed the credibility of the plaintiffs evidence in considering a motion for summary judgment. 1998 ND 31, at ¶ 14, 574 N.W.2d 823.

[¶ 9] In contrast, the Schaefers reached this Court after a full trial on the merits. The trial court’s task was not to determine whether a genuine issue of material fact existed, but rather, whether the competency, materiality, and relevance of the proffered exhibits had been shown. See Erdmann v. Thomas, 446 N.W.2d 245, 246 (N.D.1989). The trial court conducted an appropriate examination and excluded the exhibits on relevance grounds.

[¶ 10] Relevant evidence is evidence that would reasonably and actually tend to prove or disprove a fact in issue. Lemer v. Campbell, 1999 ND 223, ¶ 18, 602 N.W.2d 686. We will not overturn a trial court’s admission or exclusion of evidence on relevance grounds unless the trial court has abused its discretion. Schneider v. Schaaf, 1999 ND 235, ¶34, 603 N.W.2d 869. Generally, relevant evidence is admissible, and irrelevant evidence is not admissible. N.D.R.Ev. 402. Under Rule 403, N.D.R.Ev., even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” “Rule 403 recognizes that relevance does not ensure admissibility. There remains the question of whether its value is worth what it costs.” Patterson v. Hutchens, 529 N.W.2d 561, 563-64 (N.D.1995) (internal quotation omitted). A trial court has broad discretion when determining whether proffered evidence is relevant. Schneider, at ¶ 34. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, or if its decision is not the product of a rational mental process. Id. at ¶ 34. We apply this deferential standard of review to provide trial courts with greater control in the admissibility of evidence. State v. Christensen, 1997 ND 57, ¶ 5, 561 N.W.2d 631.

[¶ 11] Evidence of Joseph Schaefer’s accident-related medications would be relevant to the issue of whether his medical expenses exceeded the $2,500 threshold required to establish a “serious injury.” However, evidence of Joseph Schaefer’s nonaccident-related medications is irrelevant to any fact or issue in this case. Any probative value the exhibits might have had regarding Joseph Schaefer’s accident-related medical expenses was outweighed by the danger of confusing and misleading the jury with the irrelevant and inaccurately highlighted and ' summarized prescriptions. The trial court’s ruling that the proffered exhibits would not be admissible even if the Schaefers had been allowed to amend the exhibits to exclude Diflucan from the allegedly accident-related prescriptions was not an abuse of discretion. The trial court appropriately examined the proffered exhibits, comparing them with Joseph Schaefer’s medical records, and found the Schaefers’ proposed modifications would not remedy the basis for inadmissibility under Rules 402 and 403, N.D.R.Ev. See also N.D.R.Ev. 1006, Explanatory Note (“[r]ule 1006 does not permit the admissibility of summaries where the individual writings are themselves inadmissible.”) We conclude the trial court did not abuse its discretion in refusing to allow the Schaefers to introduce the printout and the summary into evidence.

[¶ 12] The Schaefers argue the trial court erred in excluding the printout and the summary from evidence because the parties had stipulated to the documents’ foundation at both the pretrial conference and the beginning of trial. The stipulation as to foundation is not disposi-tive of the admissibility issue, however. Parties may stipulate as to the necessary foundation for the admission of evidence to be introduced at trial, subject to the trial court’s discretion to accept or reject the proffered evidence. State v. Unterseher, 255 N.W.2d 882, 888 (N.D.1977). On appeal, the Schaefers acknowledge SRT did not stipulate to the documents themselves, but rather to the foundation of the documents. The Schaefers concede SRT retained their objections to the relevancy, competency, and materiality of the proffered exhibits. Applying sound discretion, the trial court conducted an appropriate examination and determined the exhibits were inadmissible on grounds of relevancy.

[¶ 13] The Schaefers also argue the trial court erred in allowing SRT’s attorney to read the depositions of Joseph Schaefer’s doctors, Rick J. Geier and Mark Monasky, during the Schaefers’ portion of the case. The Schaefers assert allowing SRT’s attorney to read the depositions made it appear to the jury that the doctors were SRT’s witnesses, and it allowed SRT to control the pace and emphasis of the questions and answers. SRT contends that allowing its attorney to read the depositions was logical because SRT’s attorney had asked the doctors the questions during the deposition, and to have the Schaefers read the depositions at trial would have been misleading to the jury. “The trial court is given ‘great latitude and discretion in conducting a trial and, absent an abuse of discretion, its decision on matters relating to, the conduct of a trial will not be set aside on appeal.’” State v. Boehler, 542 N.W.2d 745, 747 (N.D.1996) (quoting Great Plains Supply Co. v. Erickson, 398 N.W.2d 732, 734 (N.D.1986)). Allowing SRT’s attorney to read the depositions was the product of a rational mental process, and the trial court did not abuse its discretion.

Ill

[¶ 14] Rule 59(b), N.D.R.Civ.P., permits a new trial when errors in law materially affecting the substantial rights of a party are made at the trial. We review a trial court’s denial of a motion for a new trial under the abuse of discretion standard. Schneider, 1999 ND 235, at ¶ 12, 603 N.W.2d 869. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. Id. at ¶ 12. An abuse of discretion is never assumed. Braunberger v. Interstate Engineering, Inc., 2000 ND 45, ¶ 7, 607 N.W.2d 904. As discussed above, the trial court did not abuse its discretion in excluding the printout and the summary from evidence, nor did it err in its conduct of the trial.

[¶ 15] The Schaefers also argue in their motion for a new trial that SRT abused the discovery process by failing to provide the Schaefers with a document requested in discovery. One of the Schae-fers’ interrogatories requested identification of any documents relating to any of the issues involved in the litigation. During trial, the Schaefers’ attorney saw Pet-tys reading a document that had not been given to them. This document was a one-paragraph statement by Pettys to SRT describing how the accident happened. At the outset of the trial, SRT had admitted its liability for the accident. The only issue for trial in this case was whether the Schaefers met the $2,500 threshold to establish a “serious injury.” The document related to the accident. The Schaefers never argued it related to damages, the issue involved in the litigation. Because it was not argued the document related to the remaining contested issues, the trial court did not abuse its discretion in denying the Schaefers’ motion for a new trial on this ground.

IV

[¶ 16] We affirm the judgment of the trial court and the order denying the motion for a new trial.

[¶ 17] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.


author: LARSON, Justice.

text:
    Duane SKOW and Vinette Skow, Appellants, and Arnold Larsen and Paul Novak, Plaintiffs, v. Cecil Dean GOFORTH and Joyce Goforth, Appellees.
    No. 98-1570.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Robert A. Nading II of the Nading Law Firm, Ankeny, for appellants.
    Roger J. Hudson, Sr. and Andrew B. Howie of Smith, Schneider, Stiles, Hudson, Serangeli, Mallaney & Shindler, P.C., Des Moines, for appellees.
   LARSON, Justice.

The issues in this case are (1) whether the defendants, who own land subject to an easement for the benefit of the plaintiffs, may use a strip approximately three inches wide on the edge of the easement to construct a fence and maintain a “private drive” sign at the entrance to the easement; and (2) whether the easement has been expanded by prescription or acquiescence. The district court ruled the defendants could install a fence and maintain the sign. It also held the easement had not been expanded as claimed by the plaintiffs. The plaintiffs appealed. The court of appeals reversed on the first issue and affirmed on the second. We'vacate the decision of the court of appeals and affirm the judgment of the district court on both issues.

I. Background Facts and Proceedings.

Plaintiffs Duane and Vinette Skow own two parcels of land that are accessed through an easement across land owned by the defendants, Cecil and Joyce Goforth. A drawing attached to this opinion shows the easement and the tracts surrounding it. The proposed fence, which would run inside the easement along the southern boundary of the Goforth property, is shown by the row of xs on the drawing.

A deed in 1908 conveyed land to the Skows’ predecessors in interest

together, with the right-of-way to drive teams over the South One (1) Rod [16½ feet] wide along the South side of said Twenty (20) Acre tract from the southeast corner thereof to the Two & ½ (2¾) Acres hereby conveyed.

Northeast Tenth Street is a public street running north and south, perpendicular to this easement at its east end. Northeast Tenth Street provides access to the Go-forths’ property but does not provide access to the Skows’ property. (Although the drawing shows the easement as Northeast Sixty-First Avenue, it is undisputed it is an easement and not a public street.) The easement is one rod (16½ feet) wide and runs from the eastern edge of the Goforth property to a point 100 rods to the west. It runs along the southern boundary of the Goforths’ parcel, along the southern boundary of the Skows’ two-acre parcel, and along a portion of the southern boundary of the Skows’ fourteen-acre parcel, all as shown by the attached drawing. Both the Skows, who use the easement to access their home, and their tenant, who uses it for accessing his farmland, rely on the easement as their only access. Arnold Larsen and Paul Novak own parcels that abut the easement on its southern edge, but they do not have to rely on it for access.

In 1997 the Skows, Larsen, and Novak petitioned for a permanent injunction to stop the Goforths’ proposed erection of the fence. The plaintiffs contended the fence, originally proposed as a chain-link fence, would deny them their right to use the full width of the easement because the fence, which would be approximately three inches wide, would reduce the width of the easement from 16½ feet to 16½ feet.

On the eve of trial, the plaintiffs amended their petition to allege the easement had been widened by operation of law because the Goforths had “acquiesced in the boundary line, and/or prescription and/or implied reservation of said easement and the dimensions of said easement.”

The district court enjoined the Goforths from installing the five-foot chain-link fence as originally proposed, but ruled that they could erect another type of fence so long as it was consistent with the court’s ruling and was done with its prior approval. The court held the easement had not been widened by prescription or acquiescence beyond the 16½ feet in the original conveyance.

After the court’s ruling and after the appeal notice was filed, the Goforths filed a “Proposal for Approval of Installation of a Fence” in which they asked the court to approve another fence design. On October 9,1998, this court ordered a remand to the district court for the purpose of addressing the Goforths’ revised fence proposal. On October 13, 1998, the district court approved the proposed fence, but this court temporarily stayed its construction.

II. Scope of Review.

Our review of actions for injunctive relief is de novo. Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa 2000). The Skows urge a de novo review of all aspects of the case, including the issues of prescription and acquiescence, and the Goforths do not resist. Accordingly, we will review the entire case de novo.

III. Parties on Appeal.

Although Larsen and Novak, owners of the lots abutting the easement on the south, were plaintiffs in the district court, the court found they had no legal rights in the easement. Larsen and Novak apparently agreed and are not involved in this appeal.

IV. The Injunction Issue.

The Skows contend the Goforths should be permanently enjoined from interfering with their use of the easement, even though the evidence at trial showed the fence would extend into the southern edge of the' easement only about three inches. The Skows contend that, while this incursion into the easement appears to be slight, it nevertheless might some day impede their use of the full 16/£-foot easement.

Injunctive relief is an extraordinary remedy that is granted with caution and only when required to avoid irreparable damage. Sear v. Clayton County Zoning Bd. of Adjustment, 590 N.W.2d 512, 515 (Iowa 1999). A party seeking an injunction must establish (1) an invasion or threatened invasion of a right, (2) substantial injury or damages will result unless an injunction is granted, and (3) no adequate legal remedy is available. Id. The disposi-tive issue in this case is whether the Skows have established a “substantial injury or damages” under the second element. Id.

At the outset, we note that an easement of a “horse and buggy” nature may be used by other forms of modern vehicular traffic. See McDonnell v. Sheets, 234 Iowa 1148, 1154-55, 15 N.W.2d 252, 255 (1944) (words “team and wagon” did not restrict type of vehicle that could use easement); Hodgkins v. Bianchini, 323 Mass. 169, 171-72, 80 N.E.2d 464, 467 (1948) (travel by gravel trucks allowed under 1820 easement granting use for horse carts). In this case, the grant of easement must be interpreted to allow ingress and egress for modern vehicular traffic, including farm tractors and implements.

The Skows testified their tenant hauled hay across the easement “and also he needs to bring down the mower and hay conditioner and baler et cetera.” The Skows do not contend, however, that a restriction of three inches in the width of the easement would prevent, or even impede, the present use of the easement. They contend only that the additional three inches should be available in case they need it.

The fence approved by the district court is to be built along the southern edge of the easement extending the full length of the Goforths’ property. As shown on the attached drawing, the fence would border the entire northern edge of the Novak lot and approximately the east one-third of the Larsen lot. The Skows claim this fence is “useless” because it does not form an enclosure of any kind and “connects to nothing.” It is a fence in the middle of nowhere with no purpose, according to them, except to frustrate the neighbors. The Goforths disagree. They claim the fence has a very legitimate purpose: keeping trespassers, including Novak and Larsen, off of their property. Cecil Goforth testified one of his neighbors, gaining access through the easement, had parked construction equipment on the Goforths’ land for an entire winter.

The Goforths’ interest, as the owners of the underlying title to the land on which the easement is located, is referred to as a servient tenement and the Skows’ interest as a dominant tenement. In these cases,

while the dominant tenement owner has the right to use the servient tenement according to the terms of the easement, the fee owner retains whatever uses do not interfere with the rights of the dominant owner.

7 Thompson on Real Property § 60.04(b)(1), at 458 (David Thomas ed., 1994).

Some courts have taken a very restrictive view of a servient owner’s right to infringe on the width of an easement, even if the full width is not presently required for ingress and egress. Under this rule,

if by the terms of the grant or reservation the way must be of a certain width, no structures can be erected which encroach on the width stated, notwithstanding that the structures would not unreasonably interfere with the right of ingress and egress.

28A C.J.S. Easements § 179 (1996) (footnotes omitted).

The rationale for denying any incursion into an easement is said to be the need for a bright line rule. In Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113 (1869), a gatepost on the entrance to an easement caused a narrowing of the passageway by three inches. In holding this to be an impermissible invasion of the easement, the court said:

When the way is defined as in the case at bar, the construction we give is ... “necessary to the security of both parties. To the grantee, to insure him a way of known width and dimension, the sufficiency of which he may judge of before he closes his contract for the purchase; and to the grantor, to secure himself against the claim of the grantee to an indefinite right to pass over his premises.”

Welch, 101 Mass, at 164 (quoting Salisbury v. Andrews, 36 Mass. 250, 258, 19 Pick 250, 258 (1837)).

Taking a different view, the Connecticut Supreme Court has said a 7⅜-⅛⅜ encroachment by a fence on a 9/£-foot-wide pedestrian passage was not a substantial encroachment, although it speculated it might be a substantial encroachment if the easement had been granted for automobile passage. See Kelly v. Ivler, 187 Conn. 31, 47-49 & n. 7, 450 A.2d 817, 824-25 & n. 7 (1982).

Similarly, the New York Court of Appeals has adopted a fairly liberal view toward servient owners’ rights: If a servient owner’s dominion over the easement, including its possible relocation, does not harm the dominant owner’s use, it will be permitted. The court said:

As this Court observed more than a century ago,
“A right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his right ... is merely a right to pass with the convenience to which he has been accustomed.”
Thus, in the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder’s right of passage is not impaired....

Lewis v. Young, 92 N.Y.2d 443, 449-50, 682 N.Y.S.2d 657, 660, 705 N.E.2d 649, 652 (1998) (alteration in original) (quoting Grafton v. Moir, 130 N.Y. 465, 471-72, 29 N.E. 974, 976 (1892)). The rationale of the court was that,

[a]s a matter of policy, affording the landowner this unilateral, but limited, authority to alter a right of way strikes a balance between the landowner’s right to use and enjoy the property and the easement holder’s right of ingress and egress.

Id.

The first Restatement of Property included this section on the use of easements by the owners of servient estates, in quite imprecise language:

The possessor of land subject to an easement created by conveyance is privileged to make such uses of the servient tenement as are not inconsistent with the provisions of the creating conveyance.

Restatement (First) of Property § 486 (1944) (emphasis added).

The second Restatement did not deal with these servitude issues. However, the third Restatement proposes to more clearly state the rights of a servient owner and to expand the servient owner’s use of the easement if it does not unreasonably interfere with the dominant owner’s rights.

Except where application of the rules as stated in § 4.1 [servitudes to be interpreted to give effect to the intention of the parties or the circumstances surrounding creation of the servitude] leads to a different result, the holder of the estate burdened by an easement or profit is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the easement or profit for its intended purpose.

Restatement (Third) of Property: Servi-tudes § 4.9 (Tentative Draft No. 4, 1994) [hereinafter Restatement (Third) ].

A comment explains the public policy underlying the new rule:

Application of public policy favoring productive land use. In resolving conflicts among the parties to servitudes, the public policy favoring socially productive use. of land generally leads to striking a balance that maximizes the aggregate utility of a servitude beneficiary and the servient estate. Socially productive uses of land include maintaining stable neighborhoods, conserving agricultural lands and open space, and preservation of historic sites, as well as development for residential, commercial, recreational, and industrial uses. Aggregate utility is generally produced by interpreting an easement to strike a balance that maximizes its utility in serving the attendant purpose while minimizing the impact on the servient estate.

Id. at cmt. b.

The commentary continues:

Questions sometimes arise as to the ability of a servient owner to locate improvements within the boundaries of an easement when the improvement does not interfere with current uses of the easement. Whether the improvement is an unreasonable interference with the servitude depends on the character of the improvement and the likelihood that it will make future development of the easement difficult. If the improvement is temporary and easily removed, it is generally not unreasonable. The more expensive the improvement or the more difficult its removal is likely to be, the more likely is the conclusion that the improvement is an unreasonable interference with the easement or profit.

Id. at cmt. c, illus. 4.

The following Restatement illustration presents a factual scenario close to the present case:

0, the owner of Blackacre, conveyed to A, the owner of Whiteacre, a sixty-foot-wide easement for a road to provide access to Whiteacre. There is currently a narrow dirt lane within the easement area. A has no current plans to improve the road, but plans to do so when White-acre is eventually subdivided. 0 is using the area up to the lane for pasture and has erected a temporary fence along the lane to keep the livestock frorri straying. In the absence of other facts or circumstances, 0 is entitled to maintain the fence within the easement area because the fence will be relatively easy to remove when A wants to widen the road.

Id. at illus. 5.

The Skows rely on our case of Wiegmann v. Baier, 203 N.W.2d 204 (Iowa 1972), in which we held a fence constructed by the servient owner on an easement was an unlawful interference with the use of the. easement. That case is clearly distinguishable because it caused a real and present impediment by “effectively barr[ing] access by auto to plaintiffs’ garage and parking areas.” Id. at 207. Another Iowa case cited, McDonnell, must also be distinguished. In that ease, we held that gates at both ends of the easement were not permissible because this was clearly an unreasonable impediment to the dominant owner’s use'. McDonnell, 234 Iowa at 1156, 15 N.W.2d at 256.

The Skows use the easement for access to their home by car. In addition, their tenant uses it for moving hay, hay equipment, and tractors. They produced no evidence, however, of any dimensions of the vehicles or the equipment, nor did they show a 16]4-foot passageway, as opposed to 16/£-foot, would be inadequate for ingress and egress.

They complain the fence will impede their removal of snow by preventing them from pushing the snow onto their neighbors’ property. We believe they have failed to show that snow removal will present a problem for their use of the easement. Notwithstanding any impediment created by the fence, the Skows will still be able to push snow anywhere they want to on their own propeity. They can even push it onto the west two-thirds of the Novak lot (which would not be separated by the fence), assuming they have permission to do so.

The proposed rail fence, moreover, would not cause snow to accumulate, according to the testimony received by the district court in its supplemental hearing. The fence will be constructed of two-inch-diameter posts with two rails, eighteen inches and thirty-six inches from the ground. The fence would be constructed of galvanized steel. The rails will be mounted in such a way that they do not extend into the easement beyond the diameter of the posts. This means the easement will actually be invaded by as little as two inches. The invasion is, in a very real sense, de minimus. Applying the rationale of the Restatement, the fence would be relatively easy to remove, a factor that makes it “generally not unreasonable.” Restatement (Third) § 4.9 cmt. c, illus. 4.

Even a more substantial intrusion (eaves on a house) that extended twelve inches into a thirty-foot utility easement was held by our court of appeals not to be a substantial invasion of the easement. Fettkether v. City of Readlyn, 595 N.W.2d 807, 812 (Iowa App.1999).

We hold that the plaintiffs have not established a substantial injury or damages that would entitle them to enjoin the construction of the fence as approved by the district court. This holding should not be construed as mandating a shrinking of the easement. It means only that, until the plaintiffs can show a reasonable need for this strip of land, in order to exercise their rights of ingress and egress, the strip may be used by the defendants in the way they have proposed. If, in the future, impediment of the right of ingress and egress becomes a reality, the Skows or their successors in interest will be able to seek an appropriate remedy at that time.

The Skows also complain the Go-forths have interfered with their use of the easement by posting a “Private Drive” sign at the entrance. They ask that this be enjoined as well. We hold that the Skows cannot enjoin the Goforths’ placing this sign adjacent to the easement because it describes exactly what it is — a private drive.

Y. The Expansion Issue.

The Skows argue the easement is no longer 16/é-feet wide but has been expanded by several feet “by prescription or acquiescence” primarily because “there are years and years of a history of known utilities running along this easement,” and * these poles “expand the easement.” We reject these arguments. As to the argument that the boundary was moved by acquiescence, the Skows presented no evidence that the Goforths or their predecessors treated the utility-pole line as the easement boundary as required by Iowa Code section 650.14 (1997) (providing for establishment of boundary by acquiescence). Acquiescence is defined as

the mutual recognition by two adjoining landowners for ten years or more that a line, definitely marked by fence or in some manner, is the dividing line between them. Acquiescence exists when both parties acknowledge and treat the line as the boundary. When the acquiescence persists for ten years the line becomes the true boundary even though a survey may show otherwise and even though neither party intended to claim more than called for by his deed.

Egli v. Troy, 602 N.W.2d 329, 333 (Iowa 1999) (quoting Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997)). It is clear the Goforths did not acquiesce in a boundary beyond the 16½ feet. In fact, they placed boulders approximately 16½ feet from the southern boundary line, so a wider passageway could not be used.

We reject the Skows’ prescription argument as well. We know of no authority, and the Skows have not cited any, to support an argument that their easement for ingress and egress may be piggybacked onto an easement granted for the benefit of another party, here, a utility company, for a totally different purpose— the transmission of energy.

We vacate the decision of the court of appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except LAVORATO, Jt) who takes no part,


author: NEUMAN, Justice.

text:
    Michel L. WALLS and Carol A. Walls, Appellants, v. JACOB NORTH PRINTING CO., INC. and Unisource Worldwide, Inc., Appellees.
    No. 99-0259.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      David S. Wiggins of Wiggins & Anderson, P.C., West Des Moines, for appellants.
    Frank A. C omito and Kent A. Gummert of Gaudineer & Comito, L.L.P., West Des Moines, for appellee Jacob North Printing Co., Inc.
    Henry A. Harmon and Bedora A. Sher-onick of Grefe & Sidney, P.L.C., Des Moines, for appellee Unisource Worldwide, Inc.
   NEUMAN, Justice.

Plaintiff Michel Walls brought this tort action against defendants, Jacob North Printing Co., Inc. and Unisource Worldwide, Inc., on the theory someone employed by the defendants moved and then negligently replaced a ladder which gave way when Walls later tried to descend it. The district court granted defendants’ motions for summary judgment, finding the record — viewed in the light most favorable to the plaintiff — could at best prompt the jury to speculate as to who that “someone” was. On Walls’ appeal, a panel of our court of appeals (with one judge dissenting) disagreed with the district court and remanded for trial. We granted further review and, now, vacate the court of appeals’ decision and affirm the district court.

I. Because this case reaches us on appeal from a summary judgment ruling, our task is to review the record made before the district court to determine whether a genuine issue of material fact is in dispute and, if not, whether the district court correctly applied the law. General Car & Truck Leasing Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996). In making that assessment, we view the evidence in the light most favorable to the plaintiff, giving him the benefit of every legitimate inference the evidence will bear. Richardson v. Commodore, Inc., 599 N.W.2d 693, 696 (Iowa 1999). Negligence cases, which are customarily fact-driven, do not generally lend themselves to resolution by way of summary judgment. Schermer v. Muller, 380 N.W.2d 684, 687 (Iowa 1986). But the proof in any case must be such that the fact finder is not left to speculate about who the negligent culprit is. Id.; accord Gerst v. Marshall, 549 N.W.2d 810, 818 (Iowa 1996). We are convinced this is such a case.

II. The record before us consists of the deposition testimony of all the known eyewitnesses to the accident as well as the observations of others who appeared immediately on the scene. Viewed most favorably to Walls, that record reveals the following facts. Michel Walls is a roofer who was replacing downspouts and gutters on a commercial building leased by defendant Jacob North Printing. To obtain access to the roof, Walls’ co-employees erected an extension ladder. They secured the ladder in place using an orange outdoor-type electrical extension cord wrapped several times around a nearby chimney. The cord was tied off on one of the top rungs of the ladder. So situated, the ladder partially obstructed the printing company’s garage door.

On the morning of the accident in question, Walls and his two co-employees, Craig Dawson and Steve Ratcliff, negotiated the ladder several times without incident. Sometime mid-morning, defendant Unisource made a delivery of 2500 pounds of paper to the printing company. Ratcliff and Dawson were summoned to move their pick-ups from the adjoining alley so the Unisource truck could park. They climbed down the ladder without difficulty.

After returning to the roof, Dawson observed Jacob North employees bring a small forklift out of the garage to pick up the pallet of paper. He then overheard a conversation in the alley about moving the ladder to get the shipment in the garage door. Dawson could not identify the voices. Shortly thereafter he saw the top of the ladder “slant a little bit.” He did not relay this observation to Walls or Rat-cliff, figuring anyone who would move the ladder would move it back.

Later in the morning, after the Uni-source truck had left, Walls attempted to descend the ladder carrying a ten-foot length of gutter pipe over his shoulder. He placed one foot on the first rung and began to swing his other leg around when, in his words, “all of a sudden the ladder wasn’t there. You know, it just left me.” He fell roughly fifteen feet to the ground, severely injuring his left leg. After Walls’ fall, Ratcliff observed that the ladder was “leaning over to the side of the building at like an angle.”

Walls sued the defendants on theories of negligence and premises liability. His petition claimed that the conduct of the defendants’ employees, in moving the extension ladder and then improperly replacing it, “created an unsafe condition and constituted negligence or fault.”

III. The question is whether the facts, sketched above, are sufficient to overcome the defendants’ motions for summary judgment. The district court did not think so. In its words, “[t]he connection from a conversation amongst unidentified individuals to the ultimate fact of consequence, the negligent replacement of the ladder by the Defendants, is too attenuated for the latter to be inferred from the former without lapsing into speculation.” We agree.

It is elementary that in order to prove a prima facie case of negligence, the plaintiff must establish that the defendant owed him a duty of care, defendant breached that duty, defendant’s breach was the actual and proximate cause of plaintiffs injuries, and plaintiff suffered damages. Hartig v. Francois, 562 N.W.2d 427, 429 (Iowa 1997) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Toils § 30, at 164-65 (5th ed.1984)). The second and third elements are at issue here. Taking the easier element first— causation in fact — the plaintiff must establish that but for a defendant’s negligence, the plaintiffs injury would not have occurred. Hasselman v. Hasselman, 596 N.W.2d 541, 545 (Iowa 1999). Direct and circumstantial evidence are equally probative on this point. Beck v. Fleener, 376 N.W.2d 594, 597 (Iowa 1985). The district court found, and we agree, that plaintiffs circumstantial proof — considered in its most favorable light — tends to show that someone in the alley de-stabilized the ladder without warning the roofers, and Walls was injured as a result.

The more troublesome element is the second one — breach of duty by a defendant. Plaintiff must establish that his injuries were proximately caused by the negligence of an identified defendant. Oberreuter v. Orion Indus., Inc., 398 N.W.2d 206, 209 (Iowa App.1986). In other words, an identified defendant must — alone or in concert with others — be connected to the tortious act. Compare Schermer, 380 N.W.2d at 689 (evidence sufficient for summary judgment purposes to connect two defendant-drivers with injuries sustained by plaintiff in three-car collision), with Oberreuter, 398 N.W.2d at 209 (evidence insufficient to establish that one of several possible antenna manufacturers provided the defective antenna that allegedly caused plaintiffs injuries).

Here Walls has sued two corporate defendants, claiming that their agents and/or employees committed the tortious act. The problem is that the record is devoid of either direct or circumstantial proof identifying which one or more of the several persons in the alley talked about moving the ladder, let alone proof that one of those unidentified persons actually moved the ladder and replaced it without exercising due care.

Plaintiff claims his identification need not be so specific because persons committing tortious acts in concert may be held individually liable for the resulting harm. See generally Restatement (Second) of Torts § 876, at 315 (1965). Crucial to proof of concerted action, however, is proof that the parties acted “in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result.” Id. cmt. a. The record before us contains no proof that the defendants’ employees or agents cooperated in any way. It might have been only Jacob North employees that Dawson overheard. Or the Unisource driver might have been in on the conversation. Under this record, resolution of the consequential fact — who, if anyone, individually committed the tor-tious act or conspired .with others to do so — could only be achieved by guesswork.

It is axiomatic that “inferences can assist in establishing a basic fact, but they cannot in and of themselves create evidence.” In re Estate of Kerndt, 251 Iowa 963, 968, 103 N.W.2d 733, 736 (1960). Plaintiffs case against these defendants fails because a fact finder would first have to infer that, but for action connected to the delivery and receipt of goods in the alley, the ladder would not have been destabilized.' Then the fact finder would have to infer that the movement of the ladder was not an individual decision by the Unisource driver or the Jacob North employees but a concerted action involving both parties. The record simply cannot be stretched that far without rank speculation. The district court was correct in so finding.

IV. Plaintiffs case against these defendants based on premises liability fails for the same reason. The record fails to furnish more than speculation about which defendant’s employees, if any, created a dangerous condition on the land that resulted in harm to Jacob North’s invitee, Michel Walls. Cf. Coleman v. Monson, 522 N.W.2d 91, 93 (Iowa App.1994) (occupier of land under duty of reasonable care to keep premises in a reasonably safe condition for business invitees); Restatement (Second) of Torts § 383, at 287. Accordingly, we vacate the contrary decision of the court of appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

All justices concur except LAVORATO, J., who takes no part.

      . Walls’ wife, Carol, also asserted a Ioss-of-consortium claim. For reasons of simplicity, however, we treat the case as involving only one plaintiff, Michel Walls.

      . Contrary to plaintiff’s suggestion on further review, this is not a res ipsa loquitur-type case which permits an inference that one or both of the defendants were negligent and shifts the burden to them to prove lack of negligence on their parts. Cf. Brewster v. United States, 542 N.W.2d 524, 530-31 (Iowa 1996); Restatement (Second) of Torts § 433B(3), at 441. Clearly the ladder was not within the exclusive control of these defendants. Substantial evidence in the summary judgment record suggests that one of plaintiff's coworkers — not these defendants — was responsible for the ladder's unstable condition prior to Walls’ fall. We are merely ignoring that evidence for purposes of considering the record in the light most favorable to plaintiff, as we are required to do.


author: LAVORATO, Justice.

text:
    Richard O’MALLEY, Appellant, v. Neil GUNDERMANN, State of Iowa, and Iowa Veterans Home, Appellees.
    No. 99-0252.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Theodore R. Hoglan of Fairall, Fairall, Kaplan, Hoglan & Condon, Marshalltown, for appellant.
    Thomas J. Miller, Attorney General, and Barbara E.B. Galloway, Assistant Attorney General, for appellees.
   LAVORATO, Justice.

Robert O’Malley filed a petition for writ of certiorari pursuant to Iowa Code section 35C.6 (1997) and an application to vacate pursuant to Iowa Code section 679A.12(l)(f) challenging an arbitrator’s decision, which denied his grievance that he was discharged without proper cause. The district court quashed the writ granting the petition and denied the application. We affirm.

I. Background Facts and Proceedings.

The Iowa Veterans Home (IVH) in Mar-shalltown, Iowa, terminated O’Malley’s employment on April 25, 1996. The IVH’s reason for terminating O’Malley’s employment was that his “conduct in' regard to having knives available to residents was in violation of Work Rule C-3.” Rule C-3 prohibited the “[u]nauthorized possession, use, trading, or selling of weapons ... during work hours and/or while on state property or engaged in state business.”

Apparently, two residents of the IVH became involved in a disagreement. One resident threatened the other resident with a “Buck” knife that had a three-inch blade. The resident who had the knife told an IVH investigator that O’Malley had sold the knife to him. This incident led to the termination .of O’Malley’s employment based on an alleged violation of Work Rule C-3.

O’Malley’s employment with the IVH was subject to a collective bargaining agreement (Agreement) between the State and the American Federation of State, County and Municipal Employees, Council 61 AFL-CIO. The Agreement provides a grievance procedure through which a union employee can file a “written complaint alleging a violation involving the application and interpretation of provisions of the agreement.” The grievance procedure includes a four-step process through which a grievance can be addressed and resolved. See Iowa Code §§ 19A.14 (prescribing a statutory procedure to be followed for resolving grievances unless the employee is covered by a collective bargaining agreement that provides its own grievance procedure), 20.18 (providing that an agreement with an employee organization may provide procedures for the consideration of grievances and disputes regarding the interpretation and application of agreements).

In step one, the employee’s union representative and the employee’s supervisor attempt to resolve the grievance. If dissatisfied with the supervisor’s answer, the employee may appeal to the “Appointing Authority” under step two. If dissatisfied with the employer’s answer to the grievance in step two, the employee may appeal to the director of the Iowa Department of Personnel. At this step, the parties are obligated to present all evidence relevant to the grievance. The director or the director’s designee is required to issue a written answer to the grievance, including the rationale for the decision.

Grievances not settled under steps one, two, and three may be appealed to arbitration. The parties may either jointly select an impartial arbitrator, or if agreement on the arbitrator cannot be reached, either or both parties may request that the Iowa Public Employment Relations Board select a five-member panel of arbitrators to resolve the grievance.

According to the terms of the Agreement,

[t]he arbitrator shall only have authority to determine the compliance with the provision of [the] Agreement. The arbitrator shall not have jurisdiction or authority to add to, amend, modify, nullify, or ignore in any way the provisions of [the] Agreement and shall not make any award which in effect would grant to the Union or the Employer any matters which were not obtained in the negotiation process. The decision of the arbitrator shall be final and binding on both parties of [the] Agreement provided such decision does not exceed the arbitrator’s jurisdiction or authority as set forth above.

(Emphasis added.)

Pursuant to the Agreement, O’Malley submitted a grievance form alleging that he was “discharged without just cause” and requesting that he be “reinstated and made whole.”

Under the Agreement, “[a]n employee who alleges that [disciplinary] action was not based on just cause may appeal a ... discharge ... beginning with the third step of the grievance procedure.” On June 12, 1996, a third-step meeting was held at the IVH. On July 12 the'department of personnel issued a written answer to O’Malley’s grievance. The department concluded that the IVH had “met the elements of just cause necessary to discharge [O’Malley]” and denied the grievance.

On August 8 O’Malley appealed the decision to arbitration. The parties selected Neil M. Gundermann as arbitrator to hear and determine the dispute. Gundermann held a hearing on August 28, 1997. On November 7 the arbitrator issued an award in which he (1) determined O’Malley “was discharged for proper cause” and (2) denied the grievance.

On December 8 O’Malley filed a petition in the district court against Gundermann, the State of Iowa, and the IVH seeking a writ of certiorari. O’Malley alleged the action of the arbitrator, in determining he had been discharged for just cause, was in violation of his rights as a veteran under Iowa Code section 35C.6. He further alleged that under this code provision, the arbitrator’s ruling was subject to review by the district court pursuant to a writ of certiorari. O’Malley asked the court to (1) reverse and annul the arbitrator’s decision and (2) award him back pay with interest plus costs and attorney fees.

On December 9 district judge Carl D. Baker issued an order for writ of certiora-ri, and the clerk of court issued a writ of certiorari that same day.

The IVH (1) denied the arbitrator’s decision was subject to review under section 35C.6; (2) claimed that the arbitrator’s decision was instead subject to review under Iowa Code section 679A.12; (3) asserted that the district court lacked subject matter jurisdiction because the petition was not filed in a timely manner; and (4) alleged that, by proceeding with arbitration, O’Malley’s certiorari proceeding was barred by the doctrine of election of remedies.

Later, O’Malley dropped the arbitrator from the action and amended his petition, asserting that the action of the arbitrator was in violation of section 35C.6 and Iowa Code section 679A.12(l)(f). The IVH denied these allegations. The IVH asserted several additional defenses that are not decisive of this appeal.

Following a hearing, district judge Carl E. Peterson issued an order quashing the writ of certiorari and denying O’Malley’s request to vacate the arbitration award.

II. Issues.

The district court concluded that the act complained of by O’Malley as illegal or in violation of section 35C.6 was not the act of the arbitrator but rather was the act of the public officer who had discharged O’Malley on April 25, 1996 — Lynne Wikle, the associate director of nursing for the IVH. The court ruled that it lacked subject matter jurisdiction to consider the petition for writ of certiorari because the petition was not filed within thirty days of his termination and was therefore untimely. On appeal, O’Malley contends the district court erred in concluding his petition for writ of certiorari was untimely.

The district court also determined that the extent of its authority to review the arbitration award was greatly circumscribed. The court concluded that it could do nothing more than determine whether (1) O’Malley had alleged a violation of the Agreement and (2) the Agreement’s grievance procedure authorized the arbitration of this particular dispute.

The court found that (1) O’Malley had alleged a violation of the Agreement and (2) the Agreement’s grievance procedure did authorize the arbitration of this particular dispute. Having made these findings, the court concluded that its role (1) was at an end and (2) did not extend to the merits of the arbitrator’s decision. On appeal, O’Malley contends the court erred in not reviewing the arbitrator’s decision under the provisions of Iowa Code section 679A.12.

III. Timeliness of the Petition for Writ of Certiorari.

O’Malley petitioned for a writ of certio-rari under Iowa Code section 35C.6, which provides:

No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by a writ of certiora-ri or at such person’s election, to judicial review in accordance with the terms of the Iowa administrative procedure Act if that is otherwise applicable to their case.

(Emphasis added.)

O’Malley served in the United States Marine Corps from November 15, 1974, to November 14, 1976. Because he was honorably discharged and because his military service occurred during the Vietnam Conflict, he belongs to a class of persons “to whom a preference is herein granted” referred to in section 35C.6. See Iowa Code § 35C.1(1) (providing that honorably discharged Vietnam veterans, among others, who are citizens and residents of this state, are “entitled to preference in appointment and employment over other applicants of no greater qualifications”). O’Malley was therefore permitted to file a petition for writ of certiorari to challenge the termination of his employment. However, our inquiry does not end here. We must still determine whether the petition was filed in a timely manner under our rules pertaining to petitions for writ of certiorari.

A. Rules pertaining to petitions for writ of certiorari. Rules applicable to appeals in ordinary actions govern our review of an appeal from a district court’s judgnent in a certiorari proceeding. Iowa R. Civ. P. 318. Our review is limited to correction of errors at law, and we are bound by the findings of the district court if supported by substantial evidence. Iowa R.App. P. 14(f)(1); Sergeant Bluff-Luton Sch. Dist. v. City Council of Sioux City, 605 N.W.2d 294, 297 (Iowa 2000).

According to the language of Iowa Rule of Civil Procedure 306 in effect at the time of O’Malley’s petition,

[a] writ of certiorari shall only be granted when specifically authorized by statute; or where an inferior tribunal, board or officer exercising judicial functions, is alleged to have exceeded its, or his, proper jurisdiction or otherwise acted illegally.

As mentioned, section 35C.6 specifically permits a veteran, who holds a public position by employment or appointment, to challenge his or her removal from such position by a petition for writ of certiorari. O’Malley seeks review of the arbitrator’s decision under this statute.

Iowa Rule of Civil Procedure 316 provides that, “[ujnless otherwise specially provided by statute, the judgment on cer-tiorari shall be limited to sustaining the proceedings below, or annulling the same wholly or in part, to the extent that they were illegal or in excess of jurisdiction .... ” Although it provides for review of a veteran’s discharge by writ of certio-rari, section 35C.6 does not specify the bounds of such review. Therefore, under rule 316, review of a veteran’s removal from a public position held by appointment or employment is limited to a determination of whether the person authorizing the veteran’s removal acted illegally or in excess of the person’s jurisdiction.

However, Iowa Rule of Civil Procedure 319 (now rule 307(c)) provides that, in order to obtain such review, the “petition must be filed within thirty days from the time the tribunal, board, or officer exceeded its jurisdiction or otherwise acted illegally.” As the district court correctly noted, an untimely filing of a petition for a writ of certiorari deprives the reviewing court of subject matter jurisdiction. See Sergeant Bluff-Luton Sch. Dist., 605 N.W.2d at 297. The district court should dismiss an untimely petition. See id. at 298.

B. Analysis. As mentioned, the issue here is whether O’Malley filed his petition in a timely manner. Because review in this case is limited to questions of illegal action or action in excess of jurisdiction, we must identify the action taken that O’Malley alleges was illegal in order to determine when the thirty-day period begins to run. See id. at 297-98. For cer-tiorari purposes, the point an illegal act occurs is when the underlying proceeding becomes final. Id. at 297.

The IVH terminated O’Malley’s employment on April 25, 1996, the arbitrator filed his decision on November 7, 1997, and O’Malley filed his petition on December 7, 1997. O’Malley contends that, while he was discharged on April 25, 1996, the discharge did not become final until the arbitrator’s decision on November 7, 1997. Therefore, he argues, the illegal act occurred on November 7, 1997- — the date of the arbitrator’s decision — and that his petition — filed on December 7, 1997 — was therefore timely.

In contrast, the IVH contends that the “final” action occurred when the IVH terminated O’Malley’s employment on April 25, 1996, and not when the arbitrator issued his decision on November 7, 1997. Therefore, the IVH argues, if there were any illegal act, that act occurred on April 25, 1996, and O’Malley’s petition — filed on December 7, 1997 — is untimely. For reasons that follow, we agree.

Although O’Malley cites several cases to support his position, none of those cases is authority for the proposition that the IVH’s decision to terminate his employment was not, and could not be, final until the parties proceeded through arbitration. O’Malley has cited neither case authority nor statutory authority that indicates the termination of his employment as of April 25, 1996, was merely preliminary and that further action, i.e., a final decision of the arbitrator, was required to make the discharge final.

Nor has O’Malley pointed to any language in the Agreement, the IVH policy manual, or his employment contract that suggests that a discharge is only a preliminary matter requiring further action, i.e., arbitration, before the discharge is final.

By arguing that his termination was not final until the arbitrator issued his decision, O’Malley necessarily implies that the grievance procedure serves as a mechanism through which the decision would be made as to whether he should be discharged. However, the Agreement’s past-tense references to action already taken by an employer suggest that the grievance procedure is not a mechanism through which decisions are made as to whether an employee should be disciplined or discharged. Rather, the grievance procedure is a mechanism through which discipline or discharge may be challenged and rectified after having already been imposed by the employer.

Finally, O’Malley has not shown that the IVH intended the termination to require subsequent approval of an arbitrator before becoming final. Unlike the cases O’Malley cites, there is no evidence or authority here for the proposition that the IVH had not or could not have chosen its final course of action on the date it terminated his employment. As the IVH points out, it — not the arbitrator — made the decision to terminate O’Malley’s employment.

Because the final action of the IVH occurred on April 25, 1996, O’Malley was obligated to file his petition for writ of certiorari challenging that action within thirty days of that date. Because he did not, his petition was untimely. The district court therefore lacked subject matter jurisdiction over O’Malley’s petition and for that reason correctly quashed his petition for writ of certiorari.

IV. Failure to Review the Arbitrator’s Decision Under Iowa Code Section 679A.12.

O’Malley’s fallback position is that the district court should have reviewed the arbitrator’s decision under Iowa Code section 679A.12. As mentioned, the district court employed a limited review, choosing to ignore Iowa Code section 679A.12. We agree with O’Malley that the review provisions of section 679A.12 apply to the arbitrator’s decision. However, for reasons that follow, we think the district court did not err in denying O’Malley’s application challenging the arbitrator’s decision.

O’Malley asserted in the district court that he was entitled to a sufficiency-of-the-evidence review under Iowa Code section 679A.12(l)(f). Because this was the only ground of review under section 679A.12 alleged before the district court, O’Malley is limited to that ground on appeal. See Peters v. Burlington N. R.R., 492 N.W.2d 399, 401 (Iowa 1992) (holding that issues must be raised in and decided by the district court before they may be raised and decided on appeal).

Iowa Code section 679A.12 provides in pertinent part:

1. Upon application of a party, the district court shall vacate an award if any of the following apply:
f Substantial evidence on the record as a whole does not support the award. The court shall not vacate an award on this ground if a party urging the vacation has not caused the arbitration proceedings to be reported, if the parties have agreed that a vacation shall not be made on this ground, or if the arbitration has been conducted under the auspices of the American arbitration association.

(Emphasis added.) Therefore, according to the emphasized language, the substantial-evidence review does not apply if the proceedings before the arbitrator were not reported or the parties have agreed that this type of review would not apply to the arbitrator’s decision.

Here, as the IVH points out, the record before the district court does not show that the arbitration proceedings were reported. Additionally, the Agreement clearly provides that the decision of the arbitrator shall be binding on both parties. This provision of the Agreement clearly implies that the parties did not intend that the arbitrator’s decision would be subject to a substantial-evidence challenge or review. Therefore, the district court was correct in refusing to vacate the arbitrator’s decision, although it did so for a different reason. We affirm the decision of the district court on this issue. See Rouse v. Union Township, 530 N.W.2d 714, 717 (Iowa 1995) (noting this court is obligated to affirm an appeal in which any proper basis appears in the record for a district court’s ruling even though it is not one upon which the court based its decision).

V. Disposition.

Because O’Malley did not file his petition for -writ of certiorari in a timely manner, the district court did not have subject matter jurisdiction and for that reason correctly quashed the writ. Additionally, because O’Malley failed to establish his right to a substantial evidence review under Iowa Code section 679A.12(l)(f), we affirm the district court’s decision refusing to vacate the arbitrator’s decision.

AFFIRMED.

All justices concur except SNELL, J., who takes no part.