author: SNELL, Justice.

text:
    KEOKUK JUNCTION RAILWAY CO., an Iowa Corporation, Appellant, v. IES INDUSTRIES, INC., a Corporation, and IES Utilities, Inc., Appellees.
    No. 99-340.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Bruce C. McDonald of McDonald Law Office, Keokuk, and Daniel A. LaKemper of Keokuk Junction Railway Co., Keokuk, for appellant.
    Gerald D. Goddard of Cray, Goddard, Miller & Taylor, L.L.P., Burlington, for appellees.
   SNELL, Justice.

This is an appeal from the Iowa District Court in a declaratory judgment action. Ruling on cross-motions for summary judgment, the court granted the motion in favor of defendant IES Industries, Incorporated. The district court was persuaded that a public highway purposes easement included within it the right of a private company to install electric utility poles. The court also found that the plaintiff landowner did not have standing to challenge the city’s permission to the utility company enabling it to erect its lines on the plaintiffs land subject to the easement. We granted review and now reverse and remand.

I. Background Facts and Proceedings

This case involves the scope of an easement secured by the city of Keokuk from Keokuk Junction Railway Company (KJRY). In 1993, through eminent domain proceedings, Keokuk condemned a portion of KJRY’s land to build a public street, Twin Rivers Drive, above KJRY’s railroad tracks. In 1997, Keokuk allowed IES to build electric power lines within the city’s right of way on KJRY’s land. Keokuk had given a letter to IES stating that it had no objection to this use of the city’s easement. IES is a private corporation existing for profit. It is, however, considered a public utility under Iowa law. Iowa Code § 476.1 (1999); see 27A Am.Jur.2d Energy § 194 (1996) (“[A] private corporation engaged in furnishing electricity to a municipality or its inhabitants is manifestly a ‘public service’ or ‘public utility’.... ”). This fact was stipulated to by the parties.

KJRY, the present appellant, immediately brought this lawsuit for declaratory judgment claiming that the construction of power lines by IES constitutes an additional servitude for which KJRY is entitled to compensation. IES maintains that the easement held by the city encompasses this type of activity and, as such, erection of power lines falls within the scope of the original easement.

The easement obtained by the city of Keokuk from KJRY is a public purpose easement which specifically created a right of way for construction, maintenance, and other highway purposes of the portion of Twin Rivers Drive that passes over KJRY’s land. The purpose stated by the city to KJRY was as follows:

The City of Keokuk, Lee County, Iowa, desires the rights specified in the lands sought to be condemned for road right of way and/or obtaining and removing gravel and/or other suitable material for the construction, improvement and/or maintenance of the new street to be constructed, known as Twin Rivers Drive, within the City of Keokuk, Iowa.

The city also proclaimed that the condemnation would create a “permanent right of way easement for construction purposes and highway purposes.... ” In short, the easement taken by the city was a public use easement for two purposes: (1) construction and maintenance of Twin Rivers Drive and (2) highway purposes.

Appellant, KJRY would have us look only at the first purpose to determine the scope is limited to construction and removal of materials for maintenance. However, the second provision broadens the scope of the easement for highway purposes as well. It is the scope of “highway purposes” that is at issue in determining whether utility lines fall within the scope of the original easement.

Ruling on cross-motions for summary judgment, the district court sustained the motion for IES. The court based its decision on the conclusion that the “use of the electric transmission lines constitutes an incidental use or incidental easement rather than a burden which is in addition to the street right-of-way.” The district court was specifically persuaded that the power lines in question were “owned and operated by a public utility which serve[d] the public generally, and that the primary easement in this case [was] a municipality’s city street.”

Additionally, the court held that KJRY lacked standing to challenge whether Keokuk’s letter to IES gave permission to build the lines within its easement because KJRY was not a party to whatever transpired between the city and IES. KJRY objects to this conclusion and claims the city never actually gave IES permission but merely stated it had “no objection.” The city’s letter made it clear to IES that Keokuk did not purport to give IES actual authority to build the lines because it was unsure if it had the right to convey such permission. Accordingly, KJRY posits that there was no legal relationship between Keokuk and IES and, therefore, KJRY does not lack standing.

In this appeal, KJRY challenges the district court’s decision granting summary judgment in favor of IES and finding that KJRY lacked standing to challenge the city’s letter. Further, KJRY asserts its own motion for summary judgment should have been granted because the erection of electric power lines resulted in an additional servitude for which KJRY should be compensated.

II. Scope and Standard of Review

This action was brought in equity. Generally, all cases in equity are reviewed de novo. Iowa R.App. P. 4. However, the same is not true if the appeal stems from the granting of summary judgment. Baratta v. Polk County Health Servs., 588 N.W.2d 107, 109 (Iowa 1999). Notwithstanding the nature of this equitable action, the court “cannot find facts de novo in an appeal from summary judgment.” Moser v. Thorp Sales Corp., 312 N.W.2d 881, 886 (Iowa 1981). Review of a ease in equity resulting in summary judgment is for correction of errors at law. Iowa R.App. 4; Baratta, 588 N.W.2d at 109. Therefore, the court reviews the district court’s grant of IES’s motion for summary judgment and the denial of KJRY’s motion for summary judgment for the correction of errors at law.

The court will affirm if the entire record including pleadings, discovery, and affidavits on file show there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 237(c). A genuine issue of material fact is lacking when a reasonable jury or judge could conclude that no evidence entitles the nonmoving party to relief. Baratta, 588 N.W.2d at 109; Fees v. Mutual Fire & Auto. Ins. Co., 490 N.W.2d 55, 57 (Iowa 1992). “A fact is ‘material’ only when its determination might affect the outcome of the suit.” Baratta, 588 N.W.2d at 109. The grant or denial of a motion for summary judgment is reviewed in the light most favorable to the nonmovant. Mewes v. State Farm Auto. Ins. Co., 530 N.W.2d 718, 721 (Iowa 1995). Under these circumstances, summary judgment should be affirmed if IES has shown no genuine issue of material fact existed such that it is entitled to judgment as a matter of law. See Schumacher Elec., Inc. v. DeBruyn, 604 N.W.2d 39, 41 (Iowa 1999); Marcus v. Young, 538 N.W.2d 285, 287 (Iowa 1995).

III. Issue on Appeal

“An easement is a liberty, privilege, or advantage in land without profit, existing distinct from ownership.” Hawk v. Rice, 325 N.W.2d 97, 98 (Iowa 1982). When an easement is created by a municipality through the use of its eminent domain power, it is taken for public benefit. However, “[pjrivate property shall not be taken for public use without just compensation being made, or secured to be made to the owner thereof....” Iowa Const, art. I, § 18. Once a valid easement has been created and the servient landowner justly compensated, the continued use of the easement must not place a greater burden on the servient estate than was contemplated at the time of formation. See Cline v. Richardson, 526 N.W.2d 166, 169 (Iowa App.1994); 39 Am.Jur.2d Highways, Streets, and Bridges § 183 (1998) (“The general rule is that the law will not by construction effect a grant of a greater interest than is essential for the public use.”).

The notice of condemnation provided KJRY with the scope of the easement. It immediately stated: “[T]he City of Keokuk, Lee County, Iowa, desires certain rights for permanent right of way easements for construction purposes and for highway purposes.” (emphasis added). To determine the scope of the easement, this court compares the language of the easement with the proposed use. Three considerations are: (1) the physical character of past use compared to the proposed use; (2) the purpose of the easement compared to the purpose of the proposed use; and (3) the additional burden imposed on the servient land by the proposed use. Restatement (First) of Property § 478 (1944 & Supp.1993). One thing is certain, a third party cannot be given more rights under the easement than the easement conveys to the holder. See Snyder v. Fort Madison St. Ry., 105 Iowa 284, 288, 75 N.W. 179 (1898).

A. The Five Possibilities

We are mindful that the national treatment of this issue is hardly uniform. The states which have addressed the present question have come to no less than five different conclusions. The possible outcomes are: (1) utility poles are within the highway easement; (2) utility poles are within the highway easement, but only if they are used to furnish power for reasons directly related to travel; (3) utility poles are within the highway easement, but only in relation to urban areas; (4) utility poles are within the highway easement if they (a) are necessary for travel purposes, and (b) the highway is in an urban area; or (5) utility poles are not within the highway easement. R.D. Hursh, Annotation, Electric Light or Power Line in Street or Highway as Additional Servitude, 58 A.L.R.2d 525, 527-28 (1958) [hereinafter Hursh]; see Annotation, Scope of Prescriptive Easement for Access (Easement of Way), 79 A.L.R.4th 604 (1990).

1. Erection of Power Lines Does Not Create an Additional Servitude

This view takes the position that the affected landowner cannot seek contribution for the installation of electric utility lines erected under the authority of a highway easement. This is true regardless of the location of the highway, the use of the lines, or the lack of actual ability to contemplate this type of use at the easement’s formation. Hursh, 58 A.L.R.2d at 528-29. This viewpoint is strongest when a public, rather than private, utility is involved because it puts the erection of power lines within the purview of the public need. This viewpoint bases its conclusion on the need to adapt the easement to the advancement of technology. See Crawford v. Alabama Power Co., 221 Ala. 236, 128 So. 454, 457-58 (1930) (holding that as time has progressed, “the vanguard of progress moves steadily onward” and the public use is served by the installation of electric lines along highways).

Florida has adopted this approach. See Nerbonne, N.V. v. Florida Power Corp., 692 So.2d 928, 929-30 (Fla.Dist.Ct.App.1997). The court recognized that “construction of a power line which does not interfere with highway travel is a proper use of a highway easement and is not regarded as imposing an additional burden of servitude on the underlying estate.” Id. at 929 (citing Fisher v. Golden Valley Elec. Ass’n, 658 P.2d 127, 129 (Alaska 1983)). The Florida court adopted the rationale of earlier decisions from Alaska, Minnesota, and Washington. Id. (citing Fisher, 658 P.2d at 129; Cater v. Northwestern Tel. Exch. Co., 60 Minn. 539, 63 N.W. 111, 112-113 (1895); McCullough v. Interstate Power & Light Co., 163 Wash. 147, 300 P. 165, 166 (1931)). The Florida court was persuaded:

The reasoning underlying this position is that electric ... lines supply communications and power which were in an earlier age provided through messenger and freight wagons traveling on public highways. So long as the lines are compatible with road traffic they are viewed simply as adaptations of traditional highway uses made because of changing technology: The easement acquired by the public in a highway includes every reasonable means for the transmission of intelligence, the conveyance of persons, and the transportation of commodities which the advance of civilization may render suitable for a highway.
... Hence it has become settled law that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes new and improved methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general purpose for which highways are designed.

Id. (citations omitted).

While this argument has merit, KJRY correctly points out that at the time of formation of the 1993 easement, electric power lines were prevalent and easily cognizable by the city of Keokuk, yet no provision was made for them in the easement. The easements at issue in Florida and the other cited cases were decades old, created in a time where utility lines were not contemplated. See id. at 928 (involving a 1952 easement challenged in 1991); McCullough, 300 P. at 166 (discussing a 1909 easement challenged in 1931). It was necessary in those cases to adapt the scope of the easement to the changing times rather than invalidate the easement or stifle progress. Here, no similar contemplation problem exists because electric utility poles could easily have been contemplated in 1993 at the easement’s formation.

The Alaska case relied on in Nerbonne can similarly be distinguished from the present case because in Alaska, a statute was enacted to allow utilities to use public right-of-ways without the permission of the servient landowner. See Fisher, 658 P.2d at 130 (applying Alaska Stat. § 19.25.010 (Michie 1980)). No such provision exists in Iowa. The sole reason the Alaska Supreme Court validated the utility’s installation of electric poles within the easement was the presence of state legislation authorizing this use. Id. at 130-31. Without the aid of such legislation in Iowa, we are clearly not prompted to make a similar decision.

Moreover, the final holding of the Florida court rested on the fact that the easement was silent as to the installation of public utility lines. Nerbonne, 692 So.2d at 930. Because the easement could have specifically been limited for this purpose, but was not, the court held that electric lines were included within its scope. Id. This argument is flawed. There is no reason to assume silence in the easement works as permission to install utility lines. The better conclusion is the easement language is controlling, and a failure to indicate the right to place utility poles within in it is conclusive that this right does not exist. Further, the present easement was created through eminent domain, and, therefore, KJRY had no way to limit the scope or request a more specific description of what the easement authorized.

IES relies on the holding of the Supreme Court of Utah that “an electric power or transmission line, within the boundaries of a public highway, are consistent with the permissible uses to be made of a public highway easement and do not constitute an additional burden.” Pickett v. California Pac. Utils., 619 P.2d 325, 327 (Utah 1980). The Utah court concluded that “uses of a public highway are expansive and are not confined to uses either permitted or contemplated at the time of dedication but are extended to new uses, consistent and proper, as civilization advances.” Id.

The dissent squarely attacked this holding and worried about its expansive effect. Id. at 328 (Hall, J., dissenting).

[EJmploying concepts of the advancement of civilization, and proper and consistent uses of highways in light of human progress, seems squarely to compromise the rights of landowners .... Any private roadway dedicated for use as a public thoroughfare thus becomes a pathway for whatever use a county authority, in its sole discretion, deems fit to impose, regardless of the detriment to the adjacent landowners. Little imagination is required to summon up possible uses which would be severely detrimental, if not completely destructive, of surrounding farm land; uses which, according to the majority view, could be imposed without the necessity of any compensation whatsoever.

Id. (Hall, J., dissenting). The dissent properly recognized that when an easement is taken by the city through no choice of the landowner, the city should be bound by the purposes it provides and not those later implicated by progress of civilization. Id. at 329 (Hall, J., dissenting). Further, we agree with the dissent that were we to adopt this holding, it would be hard to envision any use that could not be related to the public use somehow and, therefore, authorized by the public highway easement.

2. Erection of Utility Lines Does Not Create an Additional Servitude Where the Lines Are Directly Related to Travel Purposes

It has been stated that “the erection of electric lines in a highway or street for the purpose of lighting is included within a public highway easement, since it is a use which appertains directly ... to the right of passage and tends to preserve ... the exercise of that right.” 39 Am.Jur.2d Highways, Streets, and Bridges § 297. Dating back to 1898, the lone Iowa case that addresses the present issue espouses this rationale. See Snyder, 105 Iowa at 288, 75 N.W. 179. However, we left for another day the present question at hand. Id. (“It has been held ... that the erection of [utility] poles ... imposes a new burden, because they do not in any manner aid in the use of the street by the public; but, as no question of that character is involved here, we refrain from expressing any opinion.... ”).

At issue in Snyder was the construction of an electricity pole for the street railway on the landowner’s property subject to a highway easement. Id. at 286-88, 75 N.W. 179. Because these poles were necessary to “aid in the rapid, convenient, and economical transportation of persons from place to place, and thus to facilitate the use of the street by the public for whom it was intended,” they did not exceed the scope of the easement. Id. at 287-88, 75 N.W. 179. The court recognized a third party “could not rightfully acquire from the city nor exercise rights in the street which were not authorized by the dedication of the streets, [and were] inconsistent with the easement granted to the public.” Id. at 286, 75 N.W. 179. The electricity pole was not inconsistent because it had been “settled that an ordinary surface street railway ... [was] not a new or additional burden upon the public easement” and the pole was necessary for the railway to facilitate public travel. Id. at 286-87, 75 N.W. 179. To that end, the city has “the right to authorize various persons to use the roadway and [is] not required to advise landowners what persons [are] so authorized” or obtain permission from the ser-vient landowner. Merritt v. Peet, 237 Iowa 1200, 1205-06, 24 N.W.2d 757, 761 (1946).

The more recent Iowa case of Hagenson v. United Telephone Co. contains some pertinent dicta. Hagenson v. United Tel. Co., 209 N.W.2d 76, 81 (Iowa 1973). Here, the laying of electric wires failed not because it exceeded the scope of the easement but because no proper easement existed. Id. However, the court did state: “If [the defendant] had a prescriptive easement, it was for use of the road as a way, not for the laying of underground cable. Assuming the easement existed, we see no way this could support the claim it conferred a right to lay cable under the roadway.” Id. at 82. This case suggests in dicta that if an easement had existed it would have only authorized activities related to travel on the road.

Several other states have taken the second approach referenced earlier. California provides the landowner with greater authority. Gurnsey v. Northern Cal. Power Co., 160 Cal. 699, 117 P. 906 (1911). The landowner

retains his right to the soil ... and to all profit which may be derived therefrom; and a municipality may not confer upon any one the right to enter ... without the consent of the owner of the soil, when such entry is not for purposes incidental to the effective use by the public of the highway.
... [UJnder a general power over public highways to promote safety and convenience of the public travel there-over, the authorities have a right to provide lighting of such highway at night. And for that purpose a public service corporation may be granted a franchise to erect its' poles thereon; that such a use of the highway, for the purpose of lighting it, is incidental to the full enjoyment of the public easement, imposing no additional servitude of which the abutting owner can complain.

Id. at 908-09. In dicta, the court also said power lines might be erected to feed the light posts and water lines installed to clean the highway. Id. at 909. But every mentioned use had to be related to highway use, not public use in general. See id. at 908-09.

Mississippi also limits public highway easements to activities and services used for non-commercial purposes. Berry v. Southern Pine Elec. Power Ass’n, 222 Miss. 260, 76 So.2d 212, 218-19 (1954). “[TJhere is no relation between the operation of an electric power line along a ... highway and public travel thereover.” Id. at 218. Similar to our facts, in this case six electric power poles were erected on the highway right of way purely to service private individuals in their homes. Id. This court would not conclude that “an electric power line serves the purpose of a highway for public travel, or that the use of such line has any relation to public travel” when its use is for commercial purposes. Id. at 219. Such a use creates an additional servitude for which the landowner is entitled to be compensated. Id. at 218-19.

One legal authority summarizes this position:

It has been widely held that electric light and power lines in a public street or highway, so placed for the commercial purpose of furnishing electric current to private individuals or concerns, constitute an additional burden or easement for which the owner of the abutting property, who also owns the fee in the street or highway, is entitled to compensation. Even if the poles and wires are reasonably necessary and proper for the furnishing of lights for the way, their further use for the furnishing of electricity to private parties is unauthorized, and entitles the owner of the fee in the highway to demand compensation or to enjoin the unlawful use, but not to require removal of the line.

26 Am.Jur.2d Eminent Domain § 228, at 652 (1996).

3. Erection of Utility Lines Does Not Create an Additional Servitude Where the Highway Is in an Urban Area

This distinction is all but extinct in many states that previously espoused it because the line between urban and rural is often hard to determine. Nonetheless, this rule recognizes: “[Although electric power lines erected in urban streets impose no additional servitude for which the owners of the fee are entitled to compensation, an additional servitude is imposed where such lines are erected in rural highways.” Id. § 227, at 651.

Pennsylvania is one of the few states to adopt this rationale. See Anderson v. Philadelphia Elec. Co., 2 Pa. D. & C.2d 709, 710-14 (Ct. C.P. Montgomery County 1954). The court held that urban conveniences give a municipality additional control over its streets that is not practical or necessary in a rural setting. Id. at 712-14. The usefulness of this rationale under our facts is extremely limited because Keokuk is an urban city and the area in question is a city street. Also, the distinction between urban and rural areas made in this rationale is of doubtful merit.

4. Erection of Utility Lines Does Not Create an Additional Servitude Where the Lines for Are for Travel Purposes and Are in an Urban Area

Maryland has addressed this rationale and decided that rural power lines erected for private, nontravel purposes constitute an additional servitude on a highway easement. Potomac Edison Co. v. Routzahn, 192 Md. 449, 65 A.2d 580, 584-86 (1949). Similarly, courts in Montana and Ohio prohibit the erection of power lines without compensation where they fail to serve the public interest for travel and are located within rural areas. Loeber v. Butte Gen. Elec., 16 Mont. 1, 39 P. 912, 913 (1895) (holding only those electric light poles erected in urban areas create no additional servitude); Huss v. Toledo Rys. & Light Co., 25 Ohio C.C.(n.s.) 44, 48 (Ct.App.1915) (finding that although the urban street light wire also supplied power to private individuals, its public purpose for travel was not defeated). Again, the rationale behind the distinction between urban and rural is questionable.

5. Erection of Utility Lines Constitutes an Additional Servitude for Which the Landowner Must Be Compensated

KJRY relies heavily on Thompson v. City of Osage to support its argument that “a condemner takes only the estate or interest in the property condemned that is necessary for the purpose of condemnation.” Thompson v. City of Osage, 421 N.W.2d 529, 532 (Iowa 1988). Unlike the view IES would have us adopt, we do not believe the city’s right of way dominates the servient landowner’s right to use his land. We have previously recognized: “Although the condemner is entitled to exclusive use of the land condemned, the owner retains the right to use the property for any purpose not inconsistent with the public right.” Id.

KJRY correctly argues that the installation of the power lines creates an actual burden on the land. IES has placed its electricity poles on land still retained by KJRY in fee simple. When the servient land is burdened by an easement, the ser-vient landowner does not surrender a fee simple. All that is relinquished is so much of the land as is necessary to accomplish the purposes of the easement. Contrary to IES’s contention, the landowner would not be getting paid twice for the same land (once by the city and once by the utility) if the utility was forced to pay for its own right-of-way. This is because the land remains in the control of the servient landowner to be used for other uses as long as these uses do not interfere with the purposes of the easement.

The increased risk of harm to KJRY’s land also creates an additional burden because overhead power lines create a danger to KJRY’s railroad tracks below and its operations in that area in general that was not contemplated at the time of the original easement. In this regard, the West Virginia Supreme Court recognized: “It is true that high voltage of electricity is a dangerous agency wherever it may be found.” Karcher v. Wheeling Elec. Co., 94 W.Va. 278, 118 S.E. 154, 155 (1923) (failing to find this fact created an additional burden). Moreover, the construction of these poles on KJRY’s land minimizes the use KJRY could have in that area. KJRY did not surrender all use to the land subject to the easement; it retained full possession limited only by the purposes for the easement. KJRY would still be free to sell this portion of the land or enter into an easement agreement with another. Erection of the poles by IES seriously limits these options and thus creates an additional burden.

Similar persuasive authority comes from the various states that have adopted the fifth possible rationale. See, e.g., Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S.W.2d 624, 626 (1936); Heyert v. Orange & Rockland Utils., Inc., 24 A.D.2d 592, 262 N.Y.S.2d 123, 125-26 (1965), aff'd, 17 N.Y.2d 352, 271 N.Y.S.2d 201, 218 N.E.2d 263 (1966). “In these jurisdictions it is held that the owners of fee in the street or highway are entitled to be compensated for the additional servitude to which their property is subjected by the erection of electric power lines.” Hursh, 58 A.L.R.2d at 543-44.

Arkansas has decisively found that although the state may provide a utility company the right to construct its poles on a highway easement, the owner in fee must still be compensated for it. Cathey, 97 S.W.2d at 626. Even though the state held a highway easement for the land, it had “no right to appropriate or take the right-of-way over one’s land for any purpose other than for a highway for the use of the public, and every additional servitude to which the land is subjected entitles the owner to compensation for such additional servitude.” Id. The Arkansas Supreme Court relied on the holding in Southwestern Bell Telephone Co. v. Biddle, to make its decision. See id. (citing Southwestern Bell Tel. Co. v. Biddle, 186 Ark. 294, 54 S.W.2d 57, 58 (1932)). The Biddle court held:

[T]he erection of a telephone line upon the public highway along lands of adjoining owners, in which the public only has an easement for use as a highway, would not prevent the owner of the land from collecting damages for the new servitude to which his land is subjected; such use not having been in contemplation when the easement was taken or granted.

Biddle, 54 S.W.2d at 58. The Cathey court extended this rationale for telephone poles to electric power poles as well. Cathey, 97 S.W.2d at 626.

Louisiana has come to a similar conclusion. See Louisiana Power & Light Co. v. Dileo, 79 So.2d 150, 155 (La.Ct.App.1965). The public easement taken by the city was specifically limited to a right-of-way “solely for the construction and maintenance of’ the highway in question. Id. at 154-55. This did not convey fee simple to the city to allow it to use the land unfettered, rather it only gave the city the right to use the land for purposes listed in the easement. Id. at 155. Accordingly, a utility company “cannot set their poles on and their lines across these lands without the consent also of the owners of the surface title thereto, or without seeming this servitude by expropriation.” Id. The court recognized that “[although the strips of land in question [were] subject to a servitude for public highway purposes, this servitude [did] not extend to the use for private power line purposes.” Id.

New York has also taken an exclusive stance toward highway easements. See Heyert, 262 N.Y.S.2d at 126. As related to a gas main the court found the landowner was “entitled to damages because there [was] an unauthorized taking or use of her property for a purpose which [was] not a lawful highway or street use under the public easement.... ” id. Moreover, because the installation of the main was not “within the scope of the public’s easement[,] such installation constitute^] an unlawful interference with plaintiffs property rights.” Id.

In North Carolina it has been held that trees within a public easement may not be removed to make room for utility poles without first compensating the servient landowner. Brown v. Asheville Elec. Light Co., 138 N.C. 533, 51 S.E. 62, 65 (1905). “In order to justify the defendants in setting up the poles, it is necessary for them to show that they have acquired the right to do so, either by consent or condemnation, from the owner of the soil. The designation by the city ... is not enough.” Id. (quotations and citation omitted). The court aptly stated that the city has no right to grant away the property of the servient landowner. Id. Accordingly, “if corporations quasi public ... seek to appropriate it so that they may have a benefit therefrom, every principle of justice demands they should make just compensation.... ” Id. (quotations and citation omitted).

A public easement creates a contract between the servient landowner and the city. Jordan v. Iowa Dep’t of Transp., 468 N.W.2d 827; 830 (Iowa 1991); see Tamm, Inc. v. Pildis, 249 N.W.2d 823, 835 (Iowa 1976). It stands to reason that an entity not a party to the agreement should not be able to derive a benefit from the easement in the same way prescribed to the city without first paying for it. Moreover, when a city possesses an easement, third parties can only use it to the extent the city could use it. See Consolidated Cable Utils., Inc. v. City of Aurora, 108 Ill.App.3d 1035, 64 Ill.Dec. 464, 439 N.E.2d 1272, 1276-77 (1982). It would be inequitable to allow a third party the free use of the easement that not even the easement holder himself enjoys.

Illinois follows this strict interpretation of the easement rule. See id. The scope of the easement is limited to only those things specifically named. See id. Because the city took an easement from the landowner for gas, electric, and telephone services, the easement was limited only to that. Id. The easement could not be expanded to include cable lines. Id. We believe this is a sounder conclusion than that adopted by the court in Florida. Compare id. (holding the easement language is controlling), with Nerbonne, 692 So.2d at 930 (finding the failure to exclude utilities is persuasive).

While it is true that the “holder of the easement possesses all rights necessary to the reasonable and proper enjoyment of the easement,” the installation of utilities must be related to the road right-of-way granted in the easement. Hunter v. Keys, 229 Wis.2d 710, 600 N.W.2d 269, 273-74 (Ct.App.1999). Here, in this private easement to improve the roadway the court found that placement of electrical wires exceeded the scope of the easement. Id. The easement was limited to purposes that would satisfy improving the road for travel. Id. Electrical lines were not one of those purposes. Id.

We agree with the sound arguments made by the courts adopting the fifth rationale. We conclude that power lines and utility poles are not included within the scope of the general public highway easement. Specifically, if the city had wanted its easement to include utilities, it could have stated as much. Allowing a utility company that operates for a profit to place its poles on the servient land without having to pay for this right is manifestly unfair to the servient landowner whose easement did not include utilities within its purview. To hold otherwise would allow the utility company to get something for nothing. The sole existence of a public easement should not enable a company for profit to obtain free use.

B. Standing to Challenge the City’s Agreement with IES

Because we determine that summary judgment should have been granted in favor of KJRY it is unnecessary to discuss standing to challenge whether IES had actual permission to build its electric poles. Under our holding today, regardless of permission, IES could not erect its utility poles under the authority of the general highway easement without providing compensation to KJRY. This decision does not require IES to remove its poles, rather it charges IES for payment to KJRY for their installation.

C. Conclusion

We hold that the easement obtained by the city of Keokuk from KJRY by eminent domain proceedings does not provide any legal basis for the erection of electric power lines by IES without its paying just compensation to KJRY. The district court erred in granting summary judgment to IES and in overruling KJRY’s motion for summary judgment on this issue.

The ease is reversed and remanded for entry of judgment in favor of KJRY on this issue and for further relief as is consistent with this opinion.

REVERSED AND REMANDED.

All justices concur except NEUMAN, J., who concurs in result only, and TERNUS, J., who takes no part.


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    BAUMHOEFENER NURSERY, INC., Appellee, v. A & D PARTNERSHIP, II, Appellant.
    No. 98-1582.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Timothy L. Gartin of Hastings & Gartin, Ames, for appellant.
    David A. O’Brien and James W. Radig of White & Johnson, P.C., Cedar Rapids, for appellee.
   NEUMAN, Justice.

This appeal and cross-appeal arise out of a mechanic’s lien filed by plaintiff, Baumhoefener Nursery, Inc., for the labor and materials involved in digging up and packaging 400 trees for delivery and installation at a Des Moines real estate development owned by defendant, A & D Partnership, II. The principal question on A & D’s appeal is whether the labor and materials furnished by Baumhoefener are “lienable” under Iowa Code sections 572.1(2) and 572.2 (1997), as found by the district court. Baumhoefener’s cross-appeal challenges the sufficiency of the district court’s award of attorney fees. Finding no error in the district court’s decisions, we affirm on both the appeal and cross-appeal and remand for entry of an award of appellate attorney fees.

I. Background Facts and Proceedings.

A & D, through its agent, Keith Denner, contracted with Midwest L & I, Inc., for landscaping services. Midwest, in turn, subcontracted with Mike Nassif, a tree wholesaler, for the purchase and delivery of 400 trees. Nassif made arrangements to purchase the trees from a tree farm in Kalona, Iowa. Denner, along with a Midwest representative, traveled to the farm to personally select the desired trees. Nassif then contracted with Baumhoefener Nursery to dig up the trees, prepare the root balls for transport, and load them onto trucks headed for Des Moines.

John Baumhoefener described the mechanics of digging and preparing the trees. The lower branches of each tree were tied with twine so that the tree spade machine would fit around the plant. Each tree was dug individually, then hauled to the end of the row where an employee installed a wire basket and burlap sack to pack the root ball. Baumhoefener employees then loaded the 400 trees onto trucks.

The record reveals that Nassif charged Midwest $15,530 for the purchase and delivery of the trees to A & D’s property in The wholesale cost of the trees was $3,882.50. A & D paid Midwest its landscaping fees, and Midwest paid Nassif in full. Nassif, however, did not pay Baumhoefener for the labor and materials performed under their contract. Nassif later declared bankruptcy. Des Moines.

Baumhoefener then commenced this action against A & D by filing a mechanic’s lien for $12,589.70. There is no dispute under this record that the lien was perfected in accordance with Iowa Code section 572.8. It was filed within ninety days from the date on which “the last of the material was furnished or the last of the labor was performed.” Iowa Code § 572.9.

The question urged by A & D at trial, and renewed on appeal, is whether Baum-hoefener’s services come within the scope of section 572.2, “Persons entitled to lien.” The statute states:

Every person who shall furnish any material or labor for, or perform any labor upon, any building or land for improvement, alteration, or repair thereof ... and those engaged in grading, sodding, installing nursery stock, landscaping, sidewalk building, fencing on any land or lot, by virtue of any contract with the owner, the owner’s agent, trustee, contractor, or subcontractor shall have a lien upon such building or improvement, and land belonging to the owner on which the same is situated or upon the land or lot so graded, landscaped, fenced, or otherwise improved, altered, or repaired, to secure payment for material or labor furnished or labor performed.

Iowa Code § 572.2.

A & D argued at trial that the lien of section 572.2 was not intended to cover a sub-subcontractor in Baumhoefener’s position. It claimed that Baumhoefener’s services were remote from any actual improvement on the land, as evidenced by A & D’s unawareness of Baumhoefener’s work until confronted with the lien. Given the fact that Baumhoefener neither grew the trees nor installed them in their new location, A & D argued, the nursery should not be permitted to avail itself of the lien statute’s coverage for landscaping work.

The district court rejected A & D’s contentions, summing up its conclusions this way:

One simply cannot install 400 trees without digging those trees out of the ground, wrapping the root ball of those trees in burlap and wire mesh and delivering them to the installation site. Therefore, Plaintiff has a lien for labor performed and material furnished pursuant to Iowa Code section 572.2. The material furnished included burlap sacks, wire mesh, nails and ropes, all within the meaning of Iowa Code section 572.1(2).

In accordance with these findings, the district court granted the lien Baumhoe-fener sought, less deductions for fuel and freight costs not challenged on appeal. The resulting judgment, $10,264, was declared enforceable against A & D’s real property, subject to foreclosure and judicial sale if not paid by a date certain. The court also awarded Baumhoefener $3500 in attorney fees. See Iowa Code § 572.32.

Further facts will be detailed as they pertain to the issues on appeal and cross-appeal.

II. Scope of Review.

An action to enforce a mechanic’s lien, triable in equity, is reviewed on appeal de novo. Carson v. Roediger, 513 N.W.2d 713, 715 (Iowa 1994). We are obliged to give weight to the district court’s factual findings, but we are not bound by them. Id.

III. Issues on Appeal.

A & D claims the district court’s judgment was erroneous and must be reversed because Baumhoefener neither provided labor nor furnished materials entitling it to the protection of section 572.2. A & D also asserts that, to the extent the district court enforced Baumhoefener’s lien based on constructive notice to A & D that the trees were moved by someone, the judgment cannot stand because such knowledge would not justify a grant of equitable relief not otherwise available under the statute.

Baumhoefener counters that the labor it provided and packing materials it furnished contributed directly to the landscaping improvements enjoyed by A & D. On the question of constructive notice, Baumhoefener concedes such knowledge would not create a separate right to a mechanic’s lien but claims the court committed no error in balancing the equities in its favor under this record.

A. Equitable Argument. We begin with the parties’ second contention first. It is true that “[mechanic's liens stem from principles of equity which require paying for work done or materials delivered.” Carson, 513 N.W.2d at 715. But the lien itself is “purely statutory in nature,” id., dependent solely on statutory authority for its existence. Gollehon, Schemmer & Assocs., Inc. v. Fairway-Bettendorf Assocs., 268 N.W.2d 200, 201 (Iowa 1978). An owner’s knowledge of the existence of the subcontractor is essentially irrelevant. Moffitt Bldg. Material Co. v. U.S. Lumber & Supply Co., 255 Iowa 765, 769, 124 N.W.2d 134, 137 (1963). “If the lien claim is filed within the time required the owner may settle with the chief contractor only at his peril.” Id.

Applying these principles to the case before us, the question is not whether A & D knew (or should have known) about Baumhoefener’s work or whether, in equity, A & D should stand Baumhoefener’s loss. The question is whether Baumhoe-fener is one of the “persons entitled to lien” as that phrase is defined by section 572.2. For that answer we must turn to the statute itself.

B. Iowa’s Mechanic’s Lien Statute. Our goal in examining and interpreting any statute is to give effect to the intent of the legislature. Lockhart v. Cedar Rapids Community Sch. Dist., 577 N.W.2d 845, 847 (Iowa 1998). That intent is best demonstrated by the words used in the statute. Id.

Iowa’s mechanic’s lien statute is broadly written, authorizing a mechanic’s lien for “every person” who furnishes material or labor for the improvement of buildings or land “by virtue of any contract with ... [the owner’s] contractor or subcontractor.” Iowa Code § 572.2 (emphasis added). The statutory term “subcontractor” is likewise broadly written to include “every person” furnishing material or performing labor “upon any ... improvement,” with the exception of persons contracting directly with the owner. Iowa Code § 572.1(5). By definition, Baumhoe-fener was a sub-subcontractor. It contracted with the subcontractor, Nassif, to provide labor and materials to prepare the trees for delivery to the landscaping contractor, Midwest L & I.

Not all states extend mechanic’s lien protection to sub-subcontractors. See generally James McLoughlin, Annotation, Right of Subcontractor’s Subcontractor or Materialman, or of Materialman’s Materialman, to Mechanic’s Lien, 24 A.L.R.4th 963, 972-74 (1983). But others, whose statutes are comparable to Iowa’s, embrace second and even third-tier subcontractors within their mechanic’s lien statutes’ protective scope. See id. at 971-72, 974-75; T.K. Kobayashi v. Meehleis Steel Co., 28 Colo.App. 327, 472 P.2d 724, 728 (1970) (sub-subcontractor constructing building components away from job site considered subcontractor under mechanic’s lien law); Hey Kiley Man, Inc. v. Azalea Gardens Apartments, 333 So.2d 48, 50 (Fla.Dist.Ct.App.1976) (under statute, “subcontractor” includes “anyone not in privity with the owner performing a portion of a contract to énhanee realty”); A.Y. McDonald Mfg. Co. v. State Farm Mut. Auto. Ins. Co., 225 Ill.App.3d 851, 167 Ill. Dec. 354; 587 N.E.2d 623, 628 (1992) (holding third-tier subcontractor afforded lien rights based on compliance with Mechanic’s Lien Act); see also Blue Tee Corp. v. CDI Contractors, 247 Neb. 397, 529 N.W.2d 16, 20 (1995) (supplier to subcontractor entitled to protection under Nebraska Construction Lien Act); Seaman v. Climate Control Corp., 181 Conn. 592, 436 A.2d 271, 274 (1980) (second-tier subcontractors “prima facie within ambit” of sub-rogation-based mechanic’s lien law).

Although we have not previously considered the question, we see nothing in Iowa Code section 572.2 that would limit mechanic’s lien protection to “first-tier” subcontractors. As both Florida and Illinois courts have observed, there appears no legal reason for arbitrary line-drawing based on degrees of remoteness from privity so long as the protective notice requirements of the statute are followed. Hey Kiley Man, Inc., 333 So.2d at 50; A.Y. McDonald, 167 Ill.Dec. 354, 587 N.E.2d at 628. We agree. The crucial question, identified in our prior cases, is whether Baumhoefener’s services improved the land upon which the lien purports to attach. Gollehon, 268 N.W.2d at 201.

The crux of A & D’s claim is that neither the labor Baumhoefener performed, nor the packaging materials provided, were associated with A & D’s property in Des Moines. A & D insists all labor was performed at the tree farm in Kalona, Iowa, and the packaging materials — though admittedly essential to successfully transporting the trees — lost their value “once the trees were placed in the ground.” In essence, appellant argues, Baumhoefener’s labor and materials were merely preparatory in nature and cannot be said to have “improved” the land as required by section 572.2. The district court rejected this argument, and so do we.

This court long ago suggested that off-site labor performed and materials furnished for delivery to a construction site may come within the ambit of our mechanic’s lien statute. A.E. Shorthill Co. v. Aetna Indem. Co., 124 N.W. 613 (Iowa 1910). The question in Shorthill was what the statutory term “furnish” means. We observed that it means more than providing materials that have “gone into” the improvement or property for which they are intended. Id. at 616-17. Preparatory labor and materials, if identified to the contract, qualify as well. Id. Our reasoning rested on the following quote from the Minnesota Supreme Court:

In these days a large proportion of the material furnished for the construction of buildings, such as cut stone, inside finishing, etc., is prepared at the yard or shop of the contractor or manufacturer, in accordance with plans and specifications for particular buildings, with the implied consent of the owner, and which in many cases would be of comparatively little value for use elsewhere. Such work of preparation should be deemed part of the construction or ‘furnishing’ under the contract.

Id. (quoting Howes v. Reliance Wire-Works Co., 46 Minn. 44, 47, 48 N.W. 448, 449 (1891)); see also T.K. Kobayashi, 472 P.2d at 728(fact that building components constructed off-site does not defeat lien for labor and materials); Blue Tee Corp., 529 N.W.2d at 20 (off-site steel fabrication recognized as lienable labor where product unique and of no value unless incorporated into building).

The record before us reveals without dispute that Baumhoefener employees performed the labor involved in digging and properly packaging 400 trees specifically identified to Nassifs contract with Midwest. Midwest in turn agreed to incorporate the trees in its landscaping contract with A & D. All agree that the plants would not have survived transplanting in Des Moines — that is, would not have improved A & D’s land — without proper removal and packaging. Although A & D makes much of the fact that Baumhoefener did not install the trees at their final destination, we note that section 572.2 pertinently affords lien coverage for “labor for” an improvement as well as any “labor upon” the improved property. Moreover we are convinced that the preparatory materials used by Baumhoefener to secure the root balls fall within the general category of “forms, accessories, and equipment” listed among the landscaping resources included in the statutory definition of “material.” See Iowa Code § 572.1(2).

In short, the labor provided and packing materials furnished by Baumhoefener contributed directly to the landscaping improvements enjoyed by A & D. Thus the district court correctly granted Baumhoe-fener judgment and the right to foreclosure on its timely filed mechanic’s lien. No ground for reversal appears.

IV. Cross-Appeal Issue: Attorney Fees.

Iowa Code section 572.32 authorizes the district court to award reasonable attorney fees to the successful plaintiff in an action to enforce a mechanic’s lien. The award is mandatory, see § 572.32, but the amount is vested in the district court’s broad, but not unlimited, discretion. Gabelmann v. NFO, Inc., 606 N.W.2d 339, 342 (Iowa 2000). “Reversal is warranted only when the court rests its discretionary ruling on grounds that are clearly unreasonable or untenable.” Id.

Baumhoefener’s counsel submitted a statement of fees and costs totaling $5797.50. The bill included preparatory work on the file, as well as six and one-half hours of trial time, at the rate of $125 per hour. The record also reveals that, due to considerable turnover in counsel’s office, three different attorneys had handled the matter over a period of two years. Opposing counsel argued this duplication of effort and expense should not be visited on his client. The district court agreed and, thereafter, entered a fee award of $3500.

Baumhoefener appeals the size of the court’s award, claiming the complexity of the case, and the time spent in pursuing it, justifies an award of no less than $5000. We think, however, that the court’s explanation for paring the fee is neither unreasonable nor untenable. It was fair for the court to assume that turnover in counsel’s office had, indeed, increased the fees in advance of trial. Moreover the size of the award is reasonable in relation to the difficulty of the case and results obtained. No abuse of discretion has been shown. Cf. Gabelmann, 606 N.W.2d at 344 (arbitrary reduction of fees from $29,000 to $3500 reversed on appeal).

Having prevailed on appeal, Baumhoefener is entitled to an award of appellate attorney fees. Id. We therefore remand to the district court for entry of an additional judgment to compensate plaintiff for the reasonable expense of these appellate proceedings. Costs on appeal shall be shared equally by the parties.

AFFIRMED ON APPEAL AND CROSS-APPEAL. REMANDED WITH INSTRUCTIONS.

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


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Thomas J. ANDERSON, Appellant.
    No. 99-0297.
    Supreme Court of Iowa.
    Oct. 11, 2000.
    David E. Richter and Matthew D. Wil-ber, Council Bluffs, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Jeffrey L. Larson, County Attorney, and Kevin B. Struve, Assistant Attorney General, for appellee.
   TERNUS, Justice.

The defendant, Thomas Anderson, was convicted of solicitation of a felony after he accepted cocaine as payment on a client’s legal bill. See Iowa Code § 705.1 (1997). On appeal he raises numerous constitutional, evidentiary, and instructional errors. We find dispositive, however, his claim that the trial court erred in failing to grant his motion for judgment of acquittal. Because we think there is insufficient evidence to prove the solicitation element of the crime, we reverse the judgment of conviction and remand for dismissal of the charge.

I. Background Facts and Proceedings.

Thomas Anderson is a licensed attorney practicing in Harlan, Iowa. He represented an individual by the name of Steve Schuemann in connection with criminal charges that had been filed against Schuemann. Schuemann was also the subject of an ongoing undercover investigation by a special agent for the Iowa Department of Narcotics Enforcement, Todd Jones. On three occasions in 1997, Schuemann sold drugs to Jones. Schuem-ann also told Jones that his attorney, Anderson, had accepted drugs in payment for legal services. Jones passed this information along to the Shelby County authorities, including the sheriff and the county attorney.

By late 1997, Jones’ investigation of drug trafficking was stalled. He talked to the sheriffs department and the county attorney about offering Schuemann a plea bargain in return for Schuemann’s agreement to act as a confidential informant in the investigation of two individuals to be identified later by the sheriff. This plan was eventually carried out and Schuemann agreed to assist in an investigation of Anderson.

At Jones’ request, Schuemann contacted Anderson and told Anderson that Schuem-ann had a friend — Jones—who had been stopped in Pottawattamie County for operating a motor vehicle while intoxicated (OWI) and that his friend needed a lawyer. Schuemann also told Anderson that Jones was a drug dealer. In the same conversation, Schuemann made arrangements for an introductory meeting between Anderson and Jones.

On February 24, 1998, Schuemann and Jones met with Anderson in Anderson’s office to discuss Jones’ alleged OWI charge. Jones testified that this meeting produced no information to support Schuemann’s allegations that Anderson had, or would, accept drugs in lieu of a cash payment for legal services. After this meeting, Jones questioned Schuemann about the veracity of Schuemann’s earlier statement and Schuemann insisted that he had been truthful.

On March 17, 1998, Jones contacted Schuemann and asked Schuemann to call Anderson to set up a meeting between Jones and Anderson for the following day. Jones asked Schuemann to tell Anderson that Schuemann had assisted Jones in setting up a big drug deal and that, in return for this assistance, Jones was willing to pay some of Schuemann’s legal bills with drugs. As requested, Schuemann talked with Anderson and subsequently informed Jones that Anderson was expecting to hear from Jones.

The next day, Jones called Anderson on Jones’ car phone and tape-recorded ' the conversation. The conversation centered on Jones’ alleged OWI and what sentence Jones might expect to receive. Toward the end of this conversation, the following exchange occurred:

Jones: An’ then the other stuff, what he (Schuemann) was talkin’ about. All I got about is half a Z on me? You know what I’m talking about?
Anderson: Yeah.
Jones: Okay. And um.
Anderson: Show me the papers on that, to see what....
Jones: Okay.
Anderson: What you want to do on it.

Jones informed Anderson that he was close to Anderson’s office and could stop by right then. When it appeared that a meeting could be arranged immediately, Jones notified law enforcement who set up surveillance of Anderson’s law office. Jones then proceeded to Anderson’s office for a meeting with Anderson.

Upon Jones’ arrival, Anderson escorted Jones to Anderson’s private office. The ensuing conversation was taped by Jones. Anderson asked Jones for his papers, and Jones replied that he did not have any. Anderson then placed a call to the Potta-wattamie County sheriffs office to determine what charges had been filed against Jones and whether a warrant had been issued, but he was unable to obtain any information. The subsequent conversation between Anderson and Jones focused on the OWI charge until Jones brought up the subject of Schuemann:

Jones: You wanna talk about Steve’s situation or not, or?
Anderson: Oh, there’s nothin’ ta’ talk about right now.
Jones: I just wanna get. What I need ta’ do, settle up with him an’ just get goin’.
Anderson: Okay, um, okay, let’s go ahead an’ talk about his situation.
Jones: Okay.
Anderson: There’s two things he owes me on.

Anderson then left the room to retrieve Schuemann’s file. Upon Anderson’s return, Jones shut the door.

Anderson then explained to Jones that he represented Schuemann on a domestic abuse matter and some criminal charges. Anderson indicated that because his representation of Schuemann on the criminal charges was by court appointment, Schuemann owed him nothing for that work other than $600 for a cash advance made toward Schuemann’s bond. Anderson informed Jones that the balance of Schuemann’s bill on the domestic abuse matter plus the cash advance was approximately $1360.

At this point, Jones brought up the proposed payment:

Jones: Now, that’s no problem. I can take care of that, doesn’t worry me, but I don’t know what Steve told you about me an’ another person, but.
Anderson: No he didn’t really [unintelligible],
Jones: Okay, yeah. ‘Cuz I got um, I just, just makes me feel weird, because I, I don’t know what the, he did. He talk about any kind of powder stuff to ya? Did he? Okay. I’m pretty sure, did he?
Anderson: Yep.
Jones: I just thought that, you just, you watch too much t.v. an’ it just, it’s just weird man. I just. It’s just weird. An’ like I told him I said that’s where I was cornin’ from.
Anderson: Yeah.
Jones: It’s cornin’ from down south and I gotta do another one Friday, but how I’ll take care of the bill that’s not gonna be a problem, but I’m not gonna screw you on what I normally do other people. You know what I’m sayin’?
Anderson: Yeah I understand what you’re sayin’.
Jones: What is, I have, I have a half like I told ya’. I have a half on me. What’s that worth? On his bill? Will you, you tell me what you think it’s worth an’ I’ll tell ya’ if I think it’s fair too. You know I gotta.
Anderson: Right, [unintelligible] what it is, you know.

At trial, Jones testified that Anderson indicated at this point that he had to look at the cocaine to know how good it was. Jones then stood up and handed a baggie of cocaine to Anderson. Anderson examined the baggie and said that it “looks all right.” Although the tape recording of the conversation is partly unintelligible at this point, it appears that Anderson stated that the drugs were worth about “six or seven hundred” dollars. Jones replied that he would “go with five to make it right.” After the delivery occurred and the price was determined, the parties talked briefly about the odor of the drugs and Jones’ OWI charge.

Jones then left the office and immediately apprised law enforcement of the situation. The police officers entered Anderson’s law office and proceeded to Anderson’s personal office. Upon seeing the officers approaching, Anderson reached into his pocket, retrieved a baggie of drugs, and handed it to the officers. Anderson was arrested and charged with solicitation of a felony.

The case against Anderson was tried to a jury. At the close of evidence, Anderson filed a motion for judgment of acquittal, claiming there was insufficient evidence that Anderson solicited Jones to commit a felony. The trial court overruled this motion and submitted the case to the jury. The jury returned a guilty verdict, and the present appeal followed.

II. Scope of Review.

This court will affirm a trial court’s denial of a motion for judgment of acquittal “if there is substantial evidence in the record to support the defendant’s conviction.” State v. McPhillips, 580 N.W.2d 748, 752 (Iowa 1998). “In evaluating whether substantial evidence exists, we view the evidence in a light most favorable to the State.” State v. Westeen, 591 N.W.2d 203, 206 (Iowa 1999).

III. Sufficiency of the Evidence to Prove Solicitation.

The Iowa Code defines the crime of solicitation of a felony as follows:

Any person who commands, entreats, or otherwise attempts to persuade another to commit a particular felony or aggravated misdemeanor, with the intent that such act be done and under circumstances which corroborates that intent by clear and convincing evidence, solicits such other to commit that felony or aggravated misdemeanor.

Iowa Code § 705.1 (emphasis added). The particular felony that Anderson was charged with soliciting was delivery of a controlled substance. Anderson claims there is a lack of substantial evidence in the record that he “command[ed], entreat[ed], or otherwise attempt[ed] to persuade” Jones to deliver a controlled substance.

Absent an appropriate meaning in law, this court gives words their plain and ordinary meaning. See Westeen, 591 N.W.2d at 208. The common definition of “command” is “to direct authoritatively,” to “order.” Webster’s Third New International Dictionary 455 (unab. ed.1993). “Entreat” is defined as “to ask earnestly,” to “beg for,” to “persuade.” Id. at 759. Finally, the word “persuade” means “to induce by argument, entreaty or expostulation into some mental position ... win over by an appeal to one’s reason and feelings ... plead with.” Id. at 1687. As these definitions indicate, solicitation is an offense “where the crime is in the asking.” State v. Howard, 7 Ohio Misc.2d 45, 455 N.E.2d 29, 30 (Mun.Ct.1983).

In the present case, the State does not argue that Anderson commanded or ordered Jones to deliver drugs to Anderson. Nor does the State contend that Anderson asked or begged Jones for the drugs. Rather the State asserts that Anderson “attempted to convince Jones to deliver drugs” by the following actions: (1) agreeing to represent Jones; (2) agreeing to accept drugs as payment for Schuemann’s legal bill; (3) retrieving Schuemann’s file and telling Jones what Schuemann owed Anderson; and (4) discussing the quality of the drugs.

In our view, however, none of these actions by Anderson constitutes persuasion, as required by the statute. With respect to each act, Anderson was simply responding to requests by Jones. Jones asked Anderson to represent him and Anderson agreed. Jones asked Anderson to accept drugs as payment for Schuem-ann’s legal bill and Anderson eventually acquiesced in this proposition. Jones asked Anderson how much Schuemann owed Anderson and Anderson responded by getting Schuemann’s file and ascertaining the balance owed. And finally, Jones asked Anderson how much Anderson thought the drugs were worth, so Anderson examined the drugs and gave Jones his opinion on the value of the drugs.

We have addressed somewhat similar circumstances in the context of the crime of solicitation of prostitution. See State v. Walker, 247 N.W.2d 1 (Iowa 1976). In Walker, police officers placed a recording device in a hotel room and then called a massage parlor, requesting a female be sent to the room for a nude encounter and a massage. 247 N.W.2d at 1. When the defendant arrived, she was admitted to the room by one of the officers posing as the client. 'Id. A conversation ensued between the officer and the defendant, and,- based on this conversation, which is not detailed in the court’s opinion, the defendant was charged with the crime of soliciting prostitution. Id. Her subsequent conviction was reversed on appeal. Id. This court said:

We have concluded that a fair reading of the record and any interpretation which could be put upon the statements of the defendant as disclosed by the tape falls far short of establishing any solicitation of [the officer] by defendant to engage with defendant in actual sexual intercourse.
A fair reading of the record and an unbiased auditing of the tape can lead us to no conclusion other than if there was solicitation to engage in commercial sexual intercourse it proceeded from [the officer] to defendant rather than from defendant to [the officer],.
... At best, the testimony of [the officer] would serve to indicate that what the defendant did was accept [the officer’s] importunities to engage with him in sexual intercourse and that he was the one who requested or solicited the activity.

Id. at 2. This holding is consistent with the observation of the Tennessee Supreme Court that “[o]ne may not be solicited into soliciting. He is either the solicitor or the solicitee.” State v. Jones, 598 S.W.2d 209, 221 (Tenn.1980).

We think the record before us shows a situation identical to that in Walker. A fair reading of the record, including the tape recording of the parties’ meeting, leads this court to the conclusion that if there was solicitation to engage in criminal activity it proceeded from Jones to the defendant, rather than from the defendant to Jones. As in Walker, the defendant simply accepted Jones’ offer to participate in the criminal activity of delivery of a controlled substance. Because Anderson was solicited to accept the delivery of a controlled substance, Anderson, as the sol-icitee, cannot also be the solicitor. Under these circumstances, we conclude that Anderson’s acquiescence and participation in the commission of the criminal offense is insufficient to establish that Anderson persuaded Jones to commit the crime, as the word “persuade” is commonly defined. See Shannon v. United States, 311 A.2d 501, 505 (D.C.1973) (holding that the defendant’s affirmative response to the undercover officer’s request for a sexual act was not a solicitation by the defendant); State v. Trump, 881 So.2d 452, 454 (La.1980) (holding that where police officers initiated the encounter and at the outset solicited the defendant for prostitution, the defendant’s eventual quoting of a price did not constitute a solicitation by the defendant); State v. Jackson, 381 So.2d 454, 455 (La.1980) (holding that the defendant’s action in calling back the informant who had momentarily turned away to leave was not a sufficient break in the informant’s solicitation of the defendant to make the defendant the solicitor); People v. Salazar, 140 Mich.App. 137, 362 N.W.2d 913, 918 (1985) (holding evidence that defendant merely responded to informant’s solicitations could not support a finding that defendant urged or persuaded the informant to commit murder). Therefore, we hold that there was insufficient evidence to support a finding that the defendant “command[ed], entreat[ed], or otherwise attempt[ed] to persuade” Jones to deliver a controlled substance. See Iowa Code § 705.1. Accordingly, the district court should have granted Anderson’s motion for judgment of acquittal.

IV. Conclusion.

Having determined that there is insufficient evidence to support the defendant’s conviction of solicitation of a felony, it is not necessary to address the other alleged errors raised on appeal. We reverse the defendant’s conviction and remand this case for entry of judgment of acquittal.

REVERSED AND REMANDED.

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

      . Jones testified that "Z" is slang for ounce, in this case meaning half an ounce of cocaine.

      . We do not mean to imply that the defendant committed no crime, only that, whatever of-Tense he committed, it was not solicitation of a felony.


author: CADY, Justice.

text:
    STATE of Iowa, Appellant, v. Darla Annette CARTER, Appellee.
    No. 99-1483.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Richard R. Phillips, County Attorney, and Alan R. Ostergren, Assistant County Attorney, for appellant.
    Esther J. Dean, Muscatine, for appellee.
   CADY, Justice.

The State appeals from an order by the district court dismissing a trial information charging the crime of perjury predicated upon a false application submitted to the Iowa Board of Pharmacy Examiners. We affirm the district court.

I. Background Facts and Proceedings.

Darla Carter applied to the Iowa Board of Pharmacy Examiners for registration as a pharmacy technician in December 1997. She completed and submitted a form application provided by the board. The two-page application form required Carter to disclose various background information, including whether she had ever been charged or convicted of a crime other than a traffic violation involving a fine of less than $100. The application also required a signature. Immediately above the signature line, the form provided “I certify to the Iowa Board of Pharmacy Examiners that the information I have provided on this registration application is true and correct.”

The application submitted to the board by Carter indicated she had never been charged or convicted of a crime. Carter signed her name to the application in the space provided immediately below the certification. The application was not notarized or otherwise verified.

The application submitted by Carter contained false information. Carter had been convicted and sentenced to a term of incarceration not to exceed ten years for the felony crime of possession of cocaine with the intent to deliver. This conviction occurred in 1989.

The State subsequently charged Carter by trial information -With perjury in violation of Iowa Code section 720.2 (1997), for failing to reveal the felony offense on the application to the board. Prior to trial, Carter moved to dismiss the charge. She claimed she did not commit perjury as a matter of law because the certification on the application did not constitute an oath or affirmation essential to the commission of perjury.

The district court dismissed the charge following a stipulation by the parties that the only evidence to support the oath or affirmation requirement of the perjury charge was the signed certification on the application. The district court found Carter did not sign the application under oath or affirmation.

The State appeals. It claims the certification on the application constitutes an affirmation which is required or authorized by law, and is sufficient to support a conviction for perjury.

II. Scope of Review.

The claim on appeal raises an issue of statutory construction. Our review is for errors at law. State v. Hubka, 480 N.W.2d 867, 871 (Iowa 1992).

III. Oath or Affirmation Requirement of Perjury.

At common law, the crime of perjury could only occur in the course of a judicial proceeding while a person was under oath or affirmation. See 60A Am.Jur.2d Penury § 38, at 1092 (1988). Our legislature, like most other states, has expanded the common law definition of perjury to include false statements in “any proceeding or other matter in which statements under oath or affirmation are required or authorized by law.” Iowa Code § 720.2. Thus, although perjury can now be predicated upon events outside a judicial proceeding, the “oath or affirmation” requirement remains an essential element of the crime. It is required to support a perjury charge to ensure that a person who is exposed to punishment for perjury recognized the obligation to be truthful when making a false statement. See 58 Am.Jur.2d Oath and Affirmation § 7, at 1050 (1989).

While our legislature has retained the oath or affirmation requirement under our perjury statute, many of the formalities once commonly associated with an oath or affirmation have been discarded. See State v. Walker, 574 N.W.2d 280, 286 (Iowa 1998) (oath sufficient even though notary did not require affiant to raise his hand and orally promise to tell the truth); Dalbey Bros. Lumber Co. v. Crispin, 234 Iowa 151, 154-58, 12 N.W.2d 277, 279-80 (1943) (affidavit sufficient despite affiant’s use of an incorrect form and notary’s failure to complete jurat, where the circumstances demonstrated the affidavit was made under oath); State v. Hulsman, 147 Iowa 572, 573, 126 N.W. 700, 701 (1910) (notary’s failure to state the words “So help you God” when administering oath immaterial). Instead, we look to see if the oath or affirmation was accomplished in such a way that the person’s conscience was bound. See Walker, 574 N.W.2d at 285-88; Hulsman, 147 Iowa at 573, 126 N.W. at 701.

In Walker, we found sufficient evidence to support a finding the defendant was under oath to support a conviction for perjury for signing a false proof of service on the return of a subpoena. Walker, 574 N.W.2d at 286. Although no oral oath or admonition was administered, the defendant signed the verification of service in the presence of a notary who completed a jurat which recited “subscribed and sworn to before me.” Id. at 281-82. The verification indicated the certificate of service was true and accurate. Id. at 286-87. We found the circumstances surrounding the signing of the verification were sufficient to bind the defendant’s conscience. Id. at 286 (noting the defendant’s previous experience with the notarization of legal documents). The need to bind the conscience of the person has also been the significant inquiry in our other cases which have considered the requirements of an oath or affirmation. See Dalbey Bros. Lumber Co., 234 Iowa at 151, 12 N.W.2d at 277 (statement is under oath if affiant executes some corporal act recognizing the affidavit must be sworn to); Hulsman, 147 Iowa at 572, 126 N.W. at 700 (any form of oath which appeals to one’s conscience satisfies oath or affirmation requirement); see also State v. Phippen, 244 N.W.2d 574, 576 (Iowa 1976) (uniform traffic citation and complaint form containing incomplete jurat insufficient to constitute an oath or affirmation).

While our prior cases reveal a host of circumstances that may satisfy the requirement of binding a person’s conscience, we recently identified an essential common element of an oath or affirmation. In City of Cedar Rapids v. Atsinger, 617 N.W.2d 272 (Iowa 2000), we held an oath could not be accomplished alone. Instead, we found our prior cases revealed a common aspect of an oath to be the presence of an official to participate in the process in such a manner to assure the person’s conscience is bound. Atsinger, 617 N.W.2d at 275. Thus, it is essential that a person appear before a designated officer to satisfy the oath or affirmation requirement.

Although we were interpreting our constitution in Atsinger, the rationale in that case applies with equal force to our interpretation of the statutory language of section 720.2. There is no reason to distinguish between the constitutional requirement of an oath to support an indictment and an oath to support the crime of perjury. Statutes must not be construed in isolation and we strive to achieve harmony and consistency between similar statutory and constitutional provisions. See 2B Norman J. Singer, Sutherland Statutory Construction §§ 53.01, 53.04, 229-30, 236-37 (5th ed.1992). Likewise, the view that an oath or affirmation must occur in the presence of another is also consistent with the general approach to the oath or affirmation requirement for perjury. See United States v. Yoshida, 727 F.2d 822, 823 (9th Cir.1983) (to prove the crime of perjury, the prosecution must show an authorized officer administered an oath to the accused); 58 Am.Jur.2d Oath and Affirmation § 19, at 1057 (“[t]o make a valid oath, the declarant must take ... the obligations of an oath in the presence of [a person] authorized to administer it”); 60A Am. Jur.2d Perjury § 12, at 1074 (to support a perjury charge, the oath must be “administered by a person having lawful authority to do so”).

We conclude our legislature intended the “oath or affirmation” element of perjury under section 720.2 to be accomplished in the presence of an authorized official. This requirement is not only consistent with our case law, but is also consistent with our common law. We strive to interpret our statutes consistent with our case law. Sourbier v. State, 498 N.W.2d 720, 723 (Iowa 1993). Additionally, we. interpret statutes consistent with the common law unless the statutory language clearly negates the common law. State v. Pace, 602 N.W.2d 764, 771 (Iowa 1999).

We recognize our legislature is free to alter this traditional requirement of an “oath or affirmation” by statute. Yet, the only statute which eliminates the presence of another requirement for an oath or affirmation is found in section 622.1. This section now permits sworn written statements required or permitted by law to be attested by a signed and dated unsworn written statement that the person “certifies under penalty of perjury” the statement is “true and correct.” Iowa Code § 622.1. This statute, however, does not help the State in this ease.

Although our legislature permits a written attestation to be accomplished alone, it also requires the certification to expressly impress upon the person that it is made “under penalty of perjury.” Iowa Code § 622.1. This is an important requirement because the “under penalty of perjury” language, like the administration of an oath by an official, acts to bind the conscience of the person and emphasizes the obligation to be truthful.

Even assuming the application in this case fell within the self-attestation provisions of section 622.1 as a matter required or permitted to be supported by a sworn statement written by the person attesting the matter, the language of the certification on the application fell far short of substantially complying with the language required by the statute. The language of the application to the board in this case did not indicate it was executed “under penalty of perjury.” A certification which does not contain language which substantially complies with this phrase is outside the statute. If the requirements of section 622.1 are not satisfied, the presence of another to administer an oath remains necessary to support a perjury charge under section 720.2. Moreover, we can find no other instance where our legislature has relaxed the oath or affirmation requirement to support the charge, of perjury.

IV. Conclusion.

We conclude the district court properly dismissed the perjury charge. Under the circumstances, Carter did not commit perjury by filing the false application with the board.

AFFIRMED.

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

      . The elements of the crime of perjury have been identified as:
      (1) a false statement of fact, opinion or belief knowingly made regarding any material matter, (2) under a lawfully authorized oath or affirmation, (3) in any proceeding before any court of justice or officer thereof, or before any tribunal or officer created by law, or in any proceeding in regard to any matter or thing in or respecting which an oath or affirmation is required or authorized by law.

        State v. Walker, 574 N.W.2d 280, 283 (Iowa 1998) (quoting State v. Deets, 195 N.W.2d 118, 122 (Iowa 1972)). The only element at issue in this case is the “under a lawfully authorized oath or affirmation” requirement.


author: PER CURIAM.

text:
    Maria SANCHEZ aka Teresa Martinez-Sanchez, Individually and as Administrator of the Estate of Otoniel Sanchez, Deceased, Appellant, v. Kevin LOWE and Muscatine Tire and Wheel, Appellees.
    No. 98-1360.
    Supreme Court of Iowa.
    Oct. 11, 2000.
    Marc Moen and Frank Santiago, Iowa City, for appellant.
    Eric M. Knoernschild of Hintermeister, Knoernsehild & Eichelberger, Muscatine, and Brian C. Ivers of McDonald, Stoneb-raker, Cepican & Woodward, P.C., Davenport, for appellees.
   PER CURIAM.

The justices of the court being equally divided, the judgment of the district court is affirmed by operation of law. See Iowa Code § 602.4107 (1999).

DISTRICT COURT JUDGMENT AFFIRMED BY OPERATION OF LAW.

For affirmance: McGIVERIN, C.J., and CARTER, SNELL, and CADY, JJ.

For Reversal: LARSON, LAVORATO, NEUMAN, and TERNUS, JJ.


text:
    Dennis J. FAUST, Respondent, Sterling Electric Construction, et al., Killmer Electric Company, et al., Respondents, v. EGAN McKAY ELECTRICAL COMPANY, et al., Relators, St. Paul Electrical Construction Medical Reimbursement Plan, Intervenor.
    No. C4-00-1205.
    Supreme Court of Minnesota.
    Oct. 26, 2000.
    Kay Nord Hunt, Richard L. Plagens, Christopher R. Grote, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, for appellant.
    Scott P. Heins, White Bear Lake, for employee.
    Richard W. Schmidt, Cousineau, McGuire & Anderson, Minneapolis, for Sterling Elec, et al.
    Kristin M. Cajoeob, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, for Killmer Elec., et al.
    Edward Q. Cassidy, St. Paul, for inter-venor.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed June 16, 2000,, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

Paul H. Anderson Associate Justice


author: PAUL H. ANDERSON, Justice.

text:
    Dorothy C. BOLDT, petitioner, Appellant, v. Kenneth W. ROTH, et al., Respondents.
    No. C4-99-953.
    Supreme Court of Minnesota.
    Nov. 2, 2000.

      Clinton McLagan, McLagan Lerman, P.A., Mendota Heights, for appellant.
    Charles E. Barnum, Crosby, for respondents.
   OPINION

PAUL H. ANDERSON, Justice.

Dorothy Boldt brought an action against Kenneth and Mary Roth in Crow Wing County District Court for a prescriptive easement to use part of the circular driveway that had provided access to her home for over 20 years. The court denied Boldt’s prescriptive easement claim, concluding that she had not proved that her use of the driveway on the Roths’ property was hostile. The court found that due to the familial relationship between Boldt and the original owner of the Roths’ property, Boldt’s use of the Roths’ property for her driveway was permissive. Boldt appealed and the Minnesota Court of Appeals affirmed; We reverse.

The parties stipulated to the facts, so they are not in dispute. Appellant Dorothy Boldt and respondents Kenneth and Mary Roth own adjacent parcels of land on Roy Lake in Crow Wing County, Minnesota. Dorothy Boldt originally held title to her parcel as a joint tenant with her husband, James, but became the parcel’s sole owner after her husband’s death in 1985. Before June 24, 1966, the land comprising the two adjacent parcels was owned by Dorothy Boldt’s mother-in-law, May Boldt. The legal description of the original parcel was

[t]he West 205 feet of the East 305 feet of that part of Government Lot 5, Section 10, Township 135, Range 29, which lies South of the new township road.

On June 24, 1966, May Boldt conveyed a part of her land to Dorothy and James Boldt. The part conveyed is described as

[t]he West 100 feet of the East 200 feet of that part of Government Lot Five (5), Section Ten (10), Township One Hundred Thirty-five (135), Range Twenty-nine (29), which lies south of the new township road now established and traveled over and across said Lot 5, subject to mineral reservations of record.
Grantor, for herself, her heirs and assigns, reserves the right to use the existing roadway over the premises herein conveyed for the use of the property described as the West 105 feet of the East 305 feet of said Government Lot 5, said reservations to run with the land.

(Dorothy Boldt property.) At the time of the conveyance, access to May Boldt’s home was by a gravel roadway which was located in part on the Dorothy Boldt property. In her deed of conveyance to Dorothy and James Boldt, May Boldt reserved the right to use this roadway.

After the 1966 conveyance, a house was constructed on the Dorothy Boldt property. Access to the house was along May Boldt’s original roadway and part of a circular driveway. In 1968, Dorothy and James Boldt constructed a garage on the Dorothy Boldt property and regraveled the original roadway and the already-constructed part of the circular driveway. In 1976, the other part of the circular driveway was constructed and the original roadway and the entire circular driveway were paved. Part of the circular driveway used' by Dorothy and James Boldt was located on May Boldt’s property. Dorothy Boldt did not receive May Boldt’s express permission to construct or pave the circular driveway.

On August 17, 1979, May Boldt conveyed the remainder of her property, including the roadway easement, to Wayne and Kathryn Void. The description of the property conveyed to the Voids is

West 105’ of the East 305’ of that part of Government Lot 5, Section 10, Township 135, Range 29, which lies south of the new Township road now established and traveled over and across said Lot 5, subject to mineral reservations of record, together with the right to use the existing roadway over the following described premises: The West 100 feet of the East 200 feet of that part of Government Lot 5, Section 10, Township 135, Range 29, which lies south of the new Township road now established and traveled over and across said Lot 5.

In October 1982, the Voids conveyed this property to Leonard and Gwen Thompson. In July 1990, the Thompsons conveyed this property to the Roths. This parcel is hereinafter referred to as the Roth property.

Before 1997, there were no boundary disputes between the owners of the Roth and Dorothy Boldt properties. In the summer of 1997, Dorothy Boldt began placing rock on her lakeshore. At that time, the parties questioned where the boundary line was located. Boldt then had her property surveyed. The surveyor determined that the actual boundary line between her property and the Roth property was not the assumed one. As a result of the survey, Boldt gained lakeshore frontage, but discovered that most of the circular driveway and a part of her rock garden were located on the Roth property.

Based on the survey, Dorothy Boldt did some landscaping on her newly determined lakeshore property. As part of this landscaping, she removed some trees contrary to the wishes of the Roths. After the removal of the trees, the Roths began constructing a fence along the boundary line established by the survey. The Roths placed fence posts on the new boundary line which ran through Boldt’s driveway and rock garden.

Following the placement of the fence posts, Dorothy Boldt commenced this action to gain a prescriptive easement for the use of that part of the circular driveway located on the Roth property. After mediation failed, the matter was tried on the stipulated facts. The district court found that due to the familial relationship between May and Dorothy Boldt, Dorothy Boldt’s original use of the part of the driveway located on the Roth property was permissive and that Dorothy Boldt had done nothing to prove the use ever became hostile. Therefore, the court found that Dorothy Boldt had not met one of the necessary elements of a prescriptive easement claim. The court of appeals affirmed the district court, holding that Boldt’s use could not be hostile because the original use was permissive and the Roths never received notice of her adverse use and therefore could not acquiesce to it.

On appeal, Dorothy Boldt argues that even assuming that her original use of the circular driveway was permissive, her mother-in-law’s 1979 transfer of the Roth property to nonfamily members' — the Voids- — -commenced a hostile use. Boldt further argues that because of this 1979 transfer, no notice is required to the Roths of her adverse use of that part of the circular driveway located on their property-

When there are no factual disputes, we must examine whether the lower courts erred in applying the law. See Hermeling v. Minnesota Fire & Cas. Co., 548 N.W.2d 270, 273 (Minn.1996). We review questions of law de novo. See Cut Price Super Mkts. v. Kingpin Foods, Inc., 256 Minn. 339, 354, 98 N.W.2d 257, 268 (1959).

A prescriptive easement claim involves the same elements of proof as an adverse possession claim, subject to the inherent differences between such claims. See Rogers v. Moore, 603 N.W.2d 650, 657 (Minn.1999). The differences between the claims arise from the difference between possessing the land for adverse possession and using the land for a prescriptive easement. See id. A prescriptive easement claimant must prove by clear and convincing evidence that the property for which she is requesting the easement was used “in an actual, open, continuous, exclusive, and hostile manner for 15 years.” Id. The claimant has the burden of proof, but if she proves actual, open, continuous, and exclusive use, then hostility of the use is presumed. See Dozier v. Krmpotich, 227 Minn. 503, 507-09, 35 N.W.2d 696, 699 (1949). Specifically, in Dozier, we held:

Where the claimant of an easement by prescription has shown open, visible, continuous, and unmolested use for the statutory period, inconsistent with the rights of the owner of the servient estate * ⅜ ⅜ the use will be presumed to be under claim of right and adverse, so as to place on the owner of the servient estate the burden of rebutting the presumption by evidence that the use was permissive. .

Id. The effect of the presumption articulated in Dozier is that once a claimant to a prescriptive easement has established actual, open, continuous, and exclusive use for the required length of time, the burden of proof shifts to the owner of the servient estate to prove permission. See id.; see also Rogers, 603 N.W.2d at 657.

We have recognized that this general rule of presumed hostility is modified in cases in which family members own both the dominant and servient estates. See Wojahn v. Johnson, 297 N.W.2d 298, 306 (Minn.1980). The reason for this modification is that the nature of close familial relationships is such that mere actual, open, exclusive, and continuous possession is not enough to give notice to a family member that a use is hostile. See Beitz v. Buendiger, 144 Minn. 52, 54, 174 N.W. 440, 441 (1919) (explaining the impact of a close familial relationship in an adverse possession case). In these situations, the presence of the close familial relationship gives rise to “the inference, if not the presumption” that the use is permissive. See Wojahn, 297 N.W.2d at 306. Here, when applying an inference, if not a presumption, of permissive use, the court of appeals shifted the burden to Boldt to prove that her use was hostile. See Boldt v. Roth, 604 N.W.2d 117, 119-20 (Minn.App.2000). Thus, the court of appeals applied a presumption that the familial use was permissive.

It is undisputed that Dorothy Boldt’s use of the circular driveway continued for more than 15 years after her mother-in-law conveyed the remaining parcel to a stranger — the Voids. If a transfer of the servient estate to a stranger eliminates the “inference, if not the presumption” that the use is permissive when there is a close family relationship, our holding does not depend on an analysis of the impact of a close family relationship. Therefore, if we conclude that Boldt’s use became hostile at the date of the 1979 transfer to the Voids, there will be no need to address whether the court of appeals correctly applied the rule of “inference, if not the presumption” of permissive use between family members. Thus, we begin our analysis at the point in time when the Roth property was transferred to a nonfamily member.

The Roths, as owners of the property to which Dorothy Boldt is seeking a prescriptive easement, are the owners of the ser-vient estate. Because Boldt is seeking the benefit of an easement over the Roth property, she is the claimant of the dominant estate. Assuming that Boldt’s use of the circular driveway was initially permissive, she maintains that her use became hostile when her mother-in-law transferred the servient estate to a nonfamily member. But the Roths argue that we have previously stated that once a use is established as permissive, it can become adverse only if there is a “notorious assertion of right.” Lustmann v. Lustmann, 204 Minn. 228, 231, 283 N.W. 387, 389 (1939) (quoting Collins v. Colleran, 86 Minn. 199, 205, 90 N.W. 364, 366 (1902)). The Roths maintain that the mere transfer of property is not enough to qualify as such a notorious assertion. They assert that, without more, Boldt’s use of the driveway continued to be permissive until the date of the survey. The Roths cite a court of appeals case, Pickar v. Erickson, 382 N.W.2d 536 (Minn.App.1986), to support this position. In Pickar, the court of appeals provided direction to the district court by noting that “a transfer in ownership does not alone constitute an affirmative showing that the permissive use changed to a hostile one.” Id. at 539. However, Pickar is not persuasive because, in Pickar, both the new ser-vient owners and the new dominant owner were still family members. See id. at 538-39.

In support of her position, Dorothy Boldt points to Wojahn, where we dealt with a situation similar to that of the parties here. See 297 N.W.2d at 302. In Wojahn, one owner held the original parcel of land. See id. The land was then divided and one of the two parcels was transferred to a family member. See id. A few years later, the remaining parcel was transferred to a nonfamily member. See id. After stating that there is an inference, if not a presumption, of permission due to the familial relationship, we concluded that the district court correctly ruled that the 15-year time period did not begin to run until after the original owner had transferred the remaining parcel to a nonfamily member. See id. at 306. The issue before the court in Wojahn was specifically when could the use become hostile once it has been found to be permissive due to the familial relationship. See id. at 305-06. We concluded that under the facts in Wojahn, when there was no other notorious assertion of right, the use of the property could not become hostile until the family member owning the servient estate transferred the property to a stranger. See id. However, we never discussed why the use could become hostile when the servient estate was transferred to a non-family member. See id.

As previously stated, the general rule is that when family members own adjoining parcels of real property and one is using a part of the other’s property for her own benefit, such use gives rise to an inference, if not a presumption, that the use is permissive due to the familial relationship. See id. at 306. The reason for that designation is that the nature of a familial relationship suggests that the family member whose property is being used would not know, without some other assertion, that the use by the relative was hostile. See Beitz, 144 Minn, at 54, 174 N.W. at 441. However, when the owners of adjoining parcels of real property are strangers, there is no need for the permissive inference or presumption because the servient estate owner should know simply by the actual and open use by the dominant estate claimant that the use is hostile. See 16 Powell on Real Property § 91.04[1] (Michael Allen Wolf ed., Matthew Bender). In light of this reasoning, the assumption made by this court in Wojahn, that a use of the property could become hostile once family members no longer owned both properties, follows logically. Once the owner of the servient estate is no longer a family member, actual and open use should suffice to notify the owner that the use is hostile. Subsequent servient estate owners who do not have a familial relationship have no reason to presume that a use is not an assertion of a claim of right. They have notice of the boundaries to their property and that the use is actual and open. We now extend our Wojahn analysis to hold that, absent evidence of continued permission, the transfer of the ser-vient estate to a stranger renders hostile a use previously considered permissive «due to a close familial relationship and such transfer will commence the 15-year prescriptive easement time period.

Application of this rule to the facts here results in the conclusion that Dorothy Boldt has proved all the elements necessary to establish her prescriptive easement claim. The Roths have conceded that Boldt’s use of that part of the circular driveway located on their property was actual, open, continuous, and exclusive for more than 15 years because construction of the entire driveway was completed in 1976 and Boldt’s use of the western part of the circular driveway began in 1968. Regardless of whether Boldt’s original use of the driveway was permissive, that use became hostile in 1979 when Boldt’s mother-in-law transferred the remaining parcel to nonfamily members. The Roths and their predecessors in title never objected to Boldt’s use of the circular driveway until the Roths did so after the 1997 survey. At a minimum, Boldt has been using the circular driveway in a manner that is actual, open, continuous, exclusive, and hostile for 18 years. Therefore, we hold that Boldt has established a prescriptive easement over the part of her circular driveway located on the Roth property and remand to the district court for further proceedings consistent with this opinion.

Reversed and remanded.