author: TERNUS, Justice.

text:
    STATE of Iowa ex rel. IOWA DEPARTMENT OF NATURAL RESOURCES, Appellant, v. BURLINGTON BASKET COMPANY, Appellee.
    No. 00-0364.
    Supreme Court of Iowa.
    Sept. 5, 2002.

      Thomas J. Miller, Attorney General, David R. Sheridan and Michael H. Smith, Assistant Attorneys General, for appellant.
    John M. Loeschen of Loeschen & Loes-chen, Burlington, for appellee.
   TERNUS, Justice.

This case concerns the claim of the appellant, State of Iowa, to an island in the Mississippi River known as Keg Island. The district court concluded that the State had not carried its burden to prove its sovereign ownership of the land and so dismissed the State’s petition to quiet title. The State appeals and we affirm.

I. Background Facts and Proceedings.

Keg Island is an uninhabited, 128-acre island located in that part of the Mississippi River flowing between Iowa and Illinois. The State of Iowa believes it has sovereign claim to Keg Island based on the island’s location on the Iowa side of the river’s main navigational channel.

In the 1980s and again in the mid-1990s, the Department of Natural Resources (DNR) posted signs on Keg Island relating to the public’s use and hunting upon the sovereign islands of Iowa. In 1994 or 1995, DNR employees saw evidence of logging and noticed signs claiming the island belonged to a basket company. Upon investigation, the State learned the appellee, Burlington Basket Company (BBC), claimed title to the land by virtue of an Illinois record chain of title that commenced in 1899. Although BBC was not in possession of the land, it periodically harvested lumber from the island to use in its basket-making business.

The State initiated this lawsuit against BBC to quiet title and to enjoin BBC from future logging on Keg Island. The State’s claim of title rested on its sovereign right to ownership of islands on the Iowa side of the Iowa-Illinois boundary in the Mississippi River. BBC raised the affirmative defenses of real party in interest and lach-es.

The matter was heard in a three-day trial at which several expert witnesses testified concerning the manner and timing of Keg Island’s formation, as well as its location. In the trial court’s subsequent decision, it rejected BBC’s affirmative defenses, but concluded the evidence was in equipoise with respect to the State’s claim. The court ruled that although the State’s evidence came close to proving its sovereign ownership of the island, it fell short. Accordingly, the court denied the State’s request to quiet title and to enjoin BBC from future activities on the island. The State appealed.

II. Scope of Review.

An action to quiet title to real estate is in equity, see Iowa Code § 649.6 (1999), and, therefore, this court’s review is de novo. See Krotz v. Sattler, 586 N.W.2d 386, 339 (Iowa 1998). Accordingly, we are not bound by the trial court’s factual findings or its legal conclusions. See id. We do, however, give weight to any credibility findings made by the trial court. See Iowa RApp. P. 6.14(6)(p).

III. General Principles of Law Governing Ownership of Navigable Rivers.

Before addressing the.issues in this case, we think it is helpful to have a frame of reference provided by a review of the general legal principles that govern title disputes involving navigable rivers. Upon admission to the Union, a state holds title in its sovereign capacity to the bed of any navigable river or stream within its borders. Block v. North Dakota, 461 U.S. 273, 277, 103 S.Ct. 1811, 1814, 75 L.Ed.2d 840, 847 (1983); Robert’s River Rides, Inc. v. Steamboat Dev. Corp., 520 N.W.2d 294, 299 (Iowa 1994); State v. Sorensen, 436 N.W.2d 358, 361 (Iowa 1989). In Iowa, “[t]he state owns the bed of the river from the ordinary high-water mark to the center of the stream and the riparian owner owns to the ordinary high-water mark.” Sorensen, 436 N.W.2d at 361 (citations omitted). In contrast, in Illinois,, a riparian landowner’s ownership extends to the center of the navigable stream. Buttenuth v. St. Louis Bridge Co., 123 Ill. 535, 17 N.E. 439, 445 (1888).

Where a navigable river or stream forms the border of a state, the boundary between the bordering states is not the geographic midpoint between the banks of the river. United States v. Louisiana, 470 U.S. 93, 108, 105 S.Ct. 1074, 1083, 84 L.Ed.2d 73, 84 (1985). Rather, the boundary is the “thalweg” — the middle of the main downstream navigable channel of the river. Louisiana v. Mississippi, 516 U.S. 22, 25, 116 S.Ct. 290, 292, 133 L.Ed.2d 265, 268 (1995); Iowa v. Illinois, 147 U.S. 1, 7-8, 13 S.Ct. 239, 241, 37 L.Ed. 55, 57 (1893). The United States Supreme Court has given the following explanation of this rule:

When a navigable river constitutes the boundary between two independent states, the line defining the point at which the jurisdiction of the two separates is well established to be the middle of the main channel of the stream. The interest of each state in the navigation of the river admits of no other line. The preservation by each of its equal rights in the navigation of the stream is the subject of paramount interest.

Iowa v. Illinois, 147 U.S. at 7, 13 S.Ct. at 241, 37 L.Ed. at 57.

Where several channels exist, the “main channel” of the river is “the middle of the principal one, or, rather, the one usually followed” by boats. Id. at 13, 13 S.Ct. at 241, 37 L.Ed. at 59; accord Holman v. Hodges, 112 Iowa 714, 717, 84 N.W. 950, 951 (1901). The principal navigable channel is not necessarily where the water is the deepest. Minnesota v. Wisconsin, 252 U.S. 273, 282, 40 S.Ct. 313, 319, 64 L.Ed. 558, 564 (1920). As the Court noted in the Minnesota v. Wisconsin case, “vessels do not follow a narrow crooked channel, close to shore, however deep, when they can proceed on a safer and more direct one with sufficient water.” Id.

Of course rivers change over time and several rules have evolved to address such developments. One change that occurs is caused by accretion — “a gradual and imperceptible addition of soil to the shore line by the action of the water to which the land is contiguous.” Meeker v. Kautz, 213 Iowa 370, 372, 239 N.W. 27, 28 (1931). As between states bordering a navigable stream, the boundary line remains the center of the channel even though the banks may change through the process of accretion or erosion. Nebraska v. Iowa, 143 U.S. 359, 360, 12 S.Ct. 396, 397, 36 L.Ed. 186, 187 (1892). Thus, in Iowa, land that accretes at or above the ordinary high water mark on the Iowa shore line becomes the property of the landowner on whose shore it attaches. Mather v. State, 200 N.W.2d 498, 500 (Iowa 1972). On the other hand, accretions to the bed of a navigable stream in the form of islands occurring on the Iowa side of the thalweg belong to the State of Iowa. Sorensen, 436 N.W.2d at 361; Dartmouth College v. Rose, 257 Iowa 533, 536, 133 N.W.2d 687, 690 (1965); accord 72 Am.Jur.2d States, Territories, and Dependencies § 37, at 430 (2001) (“A newly formed island is part of the state on whose side of the main channel it forms.”).

Another rule that is implicated in the present ease is known as the island exception to the thalweg rule. The island exception provides: “[I]f there is a divided river flow around an island, a boundary once established on one side of the island remains there, even though the main downstream navigation channel shifts to the island’s other side.” Louisiana v. Mississippi, 516 U.S. at 25, 116 S.Ct. at 292-93, 133 L.Ed.2d at 269. Thus, for example, if an island formed by accretion on the Illinois side of the thalweg, it would belong to the riparian owner in Illinois and this ownership would continue even though the main navigational channel later shifts.

A related rule concerns sudden and abrupt changes in a river channel known as avulsions. See Dartmouth College, 257 Iowa at 535, 133 N.W.2d at 689 (defining “avulsion”). An avulsion has no effect on the boundary line in a navigable stream even though it causes the main navigational channel to change:

It is equally well settled that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein.

Nebraska, 143 U.S. at 361, 12 S.Ct. at 397, 36 L.Ed. at 188. With this background we now frame the issues presented in this appeal.

IV. Issues.

The essence of the dispute between the parties in this case can be traced to their disagreement on the fundamental question of timing. The State adamantly maintains that it has no obligation to prove the location of the thalweg in 1846 when Iowa joined the Union. Rather the State contends it is sufficient for it to show that the thalweg was east of Keg Island prior to 1899 when BBC’s chain of title commenced. BBC is just as adamant in its contrary position. Thus, in order to properly identify the determinative factual issues in this case, we must first ascertain the relevant timeframe. We think that, in turn, depends on whether Keg Island or its progenitors formed before or after 1846. We will consider both alternatives, starting with the possibility that the island was already in existence when Iowa became a state.

The State’s claim of title rests on its right as a sovereign state to ownership of border rivers from the thalweg to the high-water mark on the Iowa side, including islands attached to the riverbed on the Iowa side of the thalweg. Thus, contrary to the State’s assertions, the relevant time frame is, initially at least, 1846, when Iowa became a state and its borders were established. To determine the land to which Iowa acquired sovereign title at that time, however, we must look back even earlier to the period between 1818, when Illinois became a state, and 1846. That is because Iowa’s borders in 1846 were subject to the situation then existing with respect to the pre-existing borders of the State of Illinois. See Minnesota v. Wisconsin, 252 U.S. at 280, 40 S.Ct. at 318, 64 L.Ed. at 563 (stating that border dispute between Wisconsin, which was admitted in 1848, and Minnesota, which was admitted in 1858, must be “determined upon consideration of the situation existing in 1846,” the year in which Wisconsin’s borders were established). Under the principles reviewed earlier, if Illinois’ border had previously been set west of Keg Island, the island would remain in Illinois territory even if the channel later changed. See Missouri v. Kentucky, 78 U.S. 395, 401, 11 Wall. 395, 20 L.Ed. 116, 118-19 (1870) (holding Kentucky acquired ownership of any islands on the Kentucky side of the Mississippi River thalweg in 1792 at the time of statehood,' and Missouri’s boundaries were fixed at the time of its statehood in 1820 on this basis regardless of the relative location of the thalweg to the islands at that later time). It follows then that if Keg Island were in Illinois in 1846, the State of Iowa would not have acquired sovereign title to the island when its borders were established at the time of statehood, even if the island was located west of the thalweg at that time. Assuming, then, that Keg Island or its predecessors existed when Iowa joined the Union in 1846, the State would be required to prove Keg Island was located west of the principal navigation channel between 1818, when Illinois’ borders were established, and 1846, when Iowa’s borders were established.

Alternatively, if Keg Island or its predecessors did not exist when Iowa became a state in 1846, the State could prove it acquired sovereign title to the island by showing that the island developed by accretion west of the principal navigational channel, in other words, on the Iowa side of the river. See Kansas v. Missouri, 322 U.S. 213, 229, 64 S.Ct. 975, 983, 88 L.Ed. 1234, 1244 (1944) (stating that for Kansas “[t]o show sovereignty by island formation it was necessary to prove that the island formed on the Kansas side of the main channel”). Under this scenario, the island would belong to Iowa as an accretion to Iowa’s territory.

In addition to the basic question of title, the State presents two preliminary matters that must be addressed. First, the State claims it is entitled to rely on a presumption that if the thalweg is now on the Illinois side of Keg Island, it is presumed that the island is in Iowa. In a related argument, the State asserts that BBC bore the burden to prove an ancient thalweg shift from the Iowa side of the island to the Illinois side of the island. At trial, the district court refused to indulge in the requested presumption and allocated the burden of proof to the State.

BBC argues on appeal, as it did in the trial court, that Keg Island (or its predecessor(s)) was in existence before Iowa’s entrance to the Union but was located on the Illinois side of the thalweg at that time. Therefore, under the island exception to the thalweg rule, argues BBC, the island remained Illinois territory even though the main navigational channel later switched to the east, Illinois side of the island. BBC disputes the propriety of any presumption to aid the State’s case and asserts the State at all times bore the burden of proof.

We first address the parties’ dispute with respect to the burden of proof and any applicable presumptions. After that, we will examine the evidence introduced at trial to determine whether we agree with the trial court’s disposition of this matter.

V. Preliminary Issues.

A. Burden of proof. The plaintiff in a quiet title action bears the burden of proof. State v. Simmons, 290 N.W.2d 589, 592 (Iowa 1980). Although a party’s record title raises a presumption of ownership that may be overcome only by clear and convincing evidence, see Wilcox v. Pinney, 250 Iowa 1878, 1381, 98 N.W.2d 720, 722 (1959); Sherbonday v. Surring, 194 Iowa 203, 214, 188 N.W. 831, 835 (1922); 65 Am.Jur.2d Quieting Title § 75, at 56 (2001), neither party has relied on such a presumption here. Therefore, in the case before us, the State had the burden to prove its title by a preponderance of the evidence. See Birdsall v. Goehring, 173 Iowa 203, 207, 155 N.W. 269, 270 (1915) (discussing “preponderance of the evidence” in determining whether plaintiff in quiet title action had met his burden of proof); Iowa R.App. P. 6.14(6)(/) (“In civil cases the burden of proof on an issue is measured by the test of preponderance of the evidence.”).

Notwithstanding the burden of proof resting on the State as plaintiff, the State spends considerable effort arguing that BBC had the burden to prove its “defense of foreign title,” referring to BBC’s claimed Illinois record title. The State asserts that the validity of BBC’s Illinois title depends on whether there was an ancient thalweg shift that moved the boundary line from the Iowa side of the island to the Illinois side of the island, thereby invoking the island exception to the rule of the thalweg. Citing the Iowa court of appeals decision in Shine v. State, 458 N.W.2d 864 (Iowa Ct.App.1990), the State argues, therefore, that BBC had the burden to prove where the island was located prior to the 1880s. We disagree.

The State’s arguments are contrary to the well-established principle that the plaintiff in a quiet title action must succeed on the strength of its own title and not on the weakness of the defendant’s title. Simmons, 290 N.W.2d at 592. Therefore, the focus must be on whether the State proved that it had sovereign title to the island, not whether BBC had a valid record title. The absence of the latter is not proof of the former. As we have already discussed, the State’s title depends on the location of the thalweg east of Keg Island between 1818 and 1846 or, if the island did not exist then, at the time of its subsequent formation. BBC’s assertion that the main channel ran to the west of the island prior to the 1880s is not an affirmative defense; it is simply a matter of denial. As such, the burden of proof remained on the State to show the location of the island, notwithstanding BBC’s evidence of record title. See Lockie v. White, 221 Iowa 1044, 1047, 267 N.W. 671, 672 (1936) (holding that plaintiff had burden to prove its own title even though defendant claimed ownership, citing rule that plaintiff must recover on the strength of his own title and not on the weakness of the defendant’s title).

The State’s reliance on the court of appeals’ decision in Shine to support its argument that the defendant had the burden of proof is misplaced. In that quiet title action the burden of proof shifted to the defendant only because the plaintiff had proved possession and record title to the disputed property, making the plaintiff the presumptive owner. Shine, 458 N.W.2d at 866. In the present case, the State proved neither possession nor record title. Therefore, the burden of 'proof did not shift to BBC.

B. Entitlement of State to presumption. The State also claims that- it is entitled to a presumption that land currently located on the Iowa side of the thalweg is in Iowa. The State relies on this-court’s opinion in Kitteridge v. Ritter, 172 Iowa 55, 151 N.W. 1097 (1915), a land dispute between riparian owners on, the Iowa and Nebraska sides of the Missouri River. In that case we considered whether the disputed land, admittedly on the east or Iowa side of the river, formed through the process of accretion of soil onto the Iowa side of the river or resulted from an avulsion of land from the Nebraska side of the river. Kitteridge, 172 Iowa at 57, 151 N.W. at 1097. Under the established common law principles discussed above, land formed by accretion on the Iowa side would be within the boundaries of Iowa, but land formed on the Iowa side from an avulsion of the river cutting off the land from its location in Nebraska would remain within the boundaries of Nebraska. Id. This court held that “[t]he land, being concededly on the east side of the Missouri [R]iver, is presumed to be in Iowa.” Id. at 59, 151 N.W. at 1098. The court also applied another presumption: that the land “is presumed to be the result of accretion, and not of avulsion.” Id.

The district court in the present ease refused to apply the former presumption regarding location, reasoning it would violate the rule of the thalweg and the island exception. Consistent with the trial court’s ruling, it appears this presumption has been rarely applied and then only in cases where the dispute centers on whether land formed by accretion or avulsion. See Arnd v. Harrington, 227 Iowa 43, 48, 287 N.W. 292, 295- (1939); Kitteridge, 172 Iowa at 59, 151 N.W. at 1097 (citing cases). Because the issue in the present case does not turn on whether the property at issue formed by accretion or avulsion, we think the presumption employed in Kitteridge does not necessarily extend to controversies surrounding the formation of an island in a navigable river.

We turn then to general principles of evidence to determine whether it would be appropriate to presume from the current location of the thalweg that it existed in that same location at an earlier time. In considering this issue we have examined cases and authorities analyzing the probative value of proof that a condition existed at a certain time on the question of whether the .same condition .existed at a subsequent or prior time. See generally 29 Am.Jur.2d Evidence § 298, at 311-12 (1994). We note initially that case law from this state and others, as well as authorities in this area, properly categorize the relationship between these two facts— present existence and prior or subsequent existence — as an inference and not a presumption. See, e.g., Stenberg v. Buckley, 245 Iowa 622, 626, 61 N.W.2d 452, 454 (1953); Stitzel v. Kurz, 18 Md.App. 525, 308 A.2d 430, 437-38 (Ct.Spec.App.1973); Jenkins v. Hawthorne, 269 N.C. 672, 153 S.E.2d 339, 342 (1967); Byrd v. Baltimore & Ohio R.R., 10 Ohio App.2d 187, 227 N.E.2d 252, 257-58'(1966); II John Henry Wigmore, Evidence in Trials at Common Law § 437, at 513-14 (1979) [hereinafter Wigmore on Evidence].

In Stenberg, a decision written after this court’s 1915 decision in Kitteridge, we noted, “when it is said, for instance, that when a certain state of things or affairs is shown to have existed at a given time, its continuance is presumed, what is really meant is that the showing of the existence at a specified time is admissible as evidence of the continued existence.” Stenberg, 245 Iowa at 626-27, 61 N.W.2d at 454. This relationship between proof of one fact and the existence of another, we stated, is an inference. Id. at 627, 61 N.W.2d at 454. We further noted that whether such an inference “aids a litigant, depends upon whether the common knowledge and experience of men, as applied to facts shown, lead to the belief that ordinarily and usually further facts or consequences follow.” Id. at 626, 61 N.W.2d at 454. Thus, an inference is simply “a reasoning process.” Id.

Wigmore has a similar analysis in his treatise:

When the existence of [a] condition ... at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at a later date.
The degree of probability of this continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end. The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is in issue and the particular circumstances affecting it in the case in hand....
Similar considerations affect the use of subsequent existence as evidence of existence at the time in issue. Here the disturbing contingency is that some circumstance operating in the interval may have been the source of the subsequent existence, and the propriety of the inference will depend on the likelihood of such intervening circumstances having occurred as the true origin.... Here, as elsewhere, the interval of time to which any inference will be allowable must depend upon the nature of the thing and the circumstances of the particular case.
The opponent ... may always attempt to explain away the effect of the evidence by showing intervening circumstances which raise a probability of change instead of continuance.

Wigmore on Evidence § 437, at 513-14; accord 29 Am.Jur.2d Evidence § 298, at 312.

Applying these principles to the present case, we conclude the fact Keg Island has been located on the Iowa side of the thal-weg since the 1880s is merely some evidence from which a fact finder may infer that it was located on the Iowa side of the thalweg prior to 1846 or, if it formed later, at that later date. Whether a fact finder makes that inference depends on the entire circumstances shown in the record.

We decline the State’s request to give its evidence of subsequent location a presumptive effect. “[A] presumption is a standardized practice, under which certain facts are held to call for uniform treatment with respect to their effect as proof of other facts.” 2 John W. Strong, McCormick on Evidence § 342, at 433 (5th ed.1999) (emphasis added) [hereinafter McCormick on Evidence]; accord 29 Am. Jur.2d Evidence § 181, at 201 (“In a sense, therefore, a presumption is an inference which is mandatory unless rebutted.”). Although there are many reasons that can support the creation of a presumption, including the difficulty of proving the presumed fact, the most important consideration is probability. McCormick on Evidence § 343, at 437-38. As our later review of the expert testimony in this case will show, there are significant variables that diminish the probability that the location of Keg Island in relation to the thalweg in the first part of the nineteenth century was the same as its present location or even its 1880s location, including the lengthy time interval and the possibility of intervening natural and man-made channel changes. Accordingly, we do not think it advisable to adopt a rule of evidence that would require a finding that the past location of an island vis-á-vis the main channel is the same as its subsequent location. Although the difficulty of proving the long-ago location of an island is apparent, we conclude it best to let the finder of fact decide, based on all the circumstances, whether proof of subsequent location is probative of prior location.

Having determined the State is not entitled to the benefit of any presumptions, we turn to an examination of the evidentiary record in this case.

VI. Summary of Evidence.

We commence our discussion of the evidence with a summary of those matters that are not contested by the parties. Illinois became a state in 1818 and Iowa became a state in 1846. The thalweg of the Mississippi River forms the boundary between these states. Keg Island is presently located to the west of the main navigational channel or on the Iowa side of the river. It is approximately one-and-one-quarter miles long. Lying immediately to the north of Keg Island is Otter Island and immediately to the north of Otter Island is Turkey Island.

Examination of land records in Iowa and Illinois fail to reveal clear evidence of the existence of Keg Island when Illinois and Iowa were admitted to the Union. The earliest record title encompassing this property is found in Illinois in 1899, when Illinois title to Keg Island was transferred by quit claim deed to BBC’s predecessor in title and the island was listed on the Mercer County, Illinois tax rolls.

The first official survey of Iowa territory along this portion of the Mississippi River appears to be an 1842 survey conducted by J.E. Whitcher pursuant to the following instructions: “[F]or the survey of the valuable islands in the Mississippi River, not heretofore surveyed, having regard to the timber or quality & location of soil, and those only which are embraced in this surveying district.” (Emphasis added.) The instructions later reference “any island which you may find worth the expense of surveying.” Although this survey showed several islands, including Turkey Island, none of those shown are believed to be Keg Island. The witnesses offered varying explanations for the absence of Keg Island from the Whitcher survey: (1) Keg Island did not exist in 1842; (2) if it did exist, it was located on the Illinois side of the thalweg; or (3) if it did exist and if it was located on the Iowa side of the thalweg, it was not significant enough to be included in the survey.

Chronologically, the next map introduced into evidence was one based on a survey made by Major General G.K. Warren from 1866 to 1869 (the Warren map). The evidence showed that at this time the United States Army Corps of Engineers was considering work on the river to ensure a continuous four-foot channel for navigational purposes. Warren’s assignment was to examine the river to determine the best location for the proposed channel. In addition, Warren had two boats that were. adapted for dredging. Historical documents showed that Warren undertook dredging operations in the Mississippi River during this period, but the exact location of any dredging was not ascertainable.

The map made under Warren’s direction showed a series of five small islands near the center of the main channel where Keg and Otter Islands are presently located. The State’s expert witness, Howard Christian, acknowledged that “the character of the islands as shown on the Warren map ... would sort of support that the thalweg would have gone along the Iowa shore.” A report by Warren was also admitted into evidence. In that report Warren described the behavior of the river in general, commenting that the channel would fill up with sand, become blocked, and then shift to another location, perhaps the other side of an island, and then the process would repeat itself, with the channel shifting back to its original location.

The first maps showing Keg Island in its present configuration were done under the direction of Lieutenant Colonel F.U. Far-quhar in the late 1870s in preparation for the channel improvements. The first map, referred to as the compilation map, was a composite of all previous maps and surveys in the region. It was prepared in 1877-1878 and then copied and distributed to river men as a means of inducing a more uniform nomenclature of the localities. Like the Warren map, this map contained no record of depth soundings, but it did show a dashed line, designated as the “Steamboat Channel of 1877,” that traveled down the river and around the islands. This line was to the east of Keg Island (meaning the island was on the Iowa side of the thalweg).

Through a comparison of the Farquhar compilation map and the Warren map, the State sought to establish that from at least 1869 the navigational channel was to the east of Keg Island or its progenitors. Christian, a retired civil engineer with the corps of engineers, testified on behalf of the State as to his interpretation of the maps. This witness illustrated through an overlay of the Farquhar map on the Warren map that the bank lines of the two maps were very similar and that the smaller islands on the Warren map appeared to have coalesced into Keg Island in the decade between the time the two maps were made. Christian testified that he believed the location of the steamboat channel at the time of the Warren map in 1869 would likely have been the same as the alignment documented a decade later in the Farquhar compilation map.

A second map was prepared under Far-quhar’s direction from hydrographic surveys conducted of the river in 1878 and 1879. It showed depth soundings, bank lines, and islands, including an island-identified as Island 352 — that closely corresponded with Keg Island. The Farqu-har hydrographic map showed the same steamboat channel running to the east of the island, again placing the island on the Iowa side of the thalweg. In addition, the State entered into evidence various maps from 1887 through the 1930s that either designated the steamboat or navigational channel on the easterly, Illinois side of Keg Island, or included depth soundings showing the deepest water on that side.

Christian concluded from his review of the historical documents and his analysis of the river that the thalweg was located on the Illinois side of Keg Island at the time of the Warren survey in 1866-1869. He based his conclusion on two things: (1) his opinion that the thalweg was located on the Illinois side of Keg Island in 1878; and (2) the fact that the area around Keg Island is a relatively flat section of the river with low velocities, resulting in a diminished likelihood of physically-influenced changes in the channel. When asked specifically, however, where the thalweg was located when Iowa became a state, Christian responded that he did not know. He also acknowledged on cross-examination that a river channel could switch from one side of an island to the other side. Although he agreed that possibility existed with respect to Keg Island, he asserted it was not as likely to have happened there as compared with other islands due to the particular configuration of the islands located upstream from Keg Island.

BBC sought to establish that Keg Island or its predecessors did in fact exist at the time of the Whitcher survey but because they were located on the Illinois side of the main navigational channel, they were not within the Iowa territory surveyed by Whitcher. BBC relied on the testimony of its expert witness, Dr. Stanley Schumm, who testified that Keg Island or its predecessor(s) was in existence at the time Iowa was admitted to the Union based primarily on two considerations: the stability of the river and the presence of presettlement alluvium sediment. By comparing the bank lines of the various maps, Schumm concluded that the river was relatively stable and consequently the islands shown on the Warren map in 1866, some of which he believed coalesced to form Keg Island, were in existence twenty years earlier at the time of Iowa statehood.

Schumm also relied on the report of a geomorphologist — an expert on island formation — who had analyzed the alluvial deposits on Keg Island. According to this report, core sediment samples taken from six locations on the island showed “the widespread presence of prehistoric island-deposited alluvial sediment” that was found below the “very distinctive alluvial sediment that is associated with cultivation and land clearance following Euro-American settlement.” The presence of pre-settlement alluvium indicated the formation of the island prior to 1850 because “significant acceleration of runoff and soil erosion” that resulted in the post-settlement alluvium began in this area of the river in the 1850s and 1860s. The conclusion Keg Island formed prior to 1850 was also supported by the nature and location of the pre-settlement alluvium on the island and the low deposition rate of sediment prior to cultivation and consequent soil erosion, signifying the island probably started to form considerably prior to the 1800s. The same physical findings also indicated, according to the geomorphologist, “that Keg Island consisted of a land-form of significant elevation above normal low water prior to the time of Iowa statehood in 1846.” Based on his study of the island and the soil analysis, Schumm believed that the island or its predecessors would have been of sufficient size to be valuable and, accordingly, included in the Whitcher survey if the island or its predecessors had been located in Iowa territory.

BBC also sought to discredit the State’s reliance on the Farquhar maps to show the steamboat channel on the east side of the island. One of BBC’s expert witnesses, James A. Simpson, testified that he thought the Farquhar hydrographic map was made for planning the work proposed by the corps of engineers, including creation of a navigation channel to the east of Keg Island. He contended that a flow arrow to the west of Keg Island on the second Farquhar map indicated the main flow of the river prior to any improvements was to the west of the island. Simpson believed the designation of a “steamboat channel” on the compilation map was an indication of where the corps had moved the channel through dredging sometime prior to 1878. Dr. Daryl Si-mons, a civil engineer specializing in water resource development, supported Simpson’s theory that the main navigational channel originally lay to the west of Keg Island. He testified that a thalweg would not form on the inside of a curvature in the river as existed on the east side of the island and that the steamboat channel in that location-was the result of dredging by the corps of engineers.

VII. Analysis of Evidence and Conclusion.

There appears to be no dispute that Keg Island has been west of the main navigational channel since the corps of engineers stabilized the channel in that location in the 1880s. The determinative question, however, is where the island was located from 1818 through 1846 or, if it formed later, on which side of the channel it arose. Given the stability of the Mississippi River in this area, a fact upon which all experts agreed, one could infer from the island’s existence west of the channel in 1877 that the channel existed in the same location some thirty to sixty years earlier between 1818 and 1846.

This inference is substantially weakened, however, by the testimony of BBC’s experts. Evidence that the island or its predecessors had formed considerably pri- or to 1846 and would have been quite sizable by the time of Whitcher’s survey in 1842 was unrebutted.' It appears, then, that Whitcher’s omission of the island from his survey indicates the island was on the Illinois side of the river in 1842. This conclusion is further supported by the natural tendency of the channel to follow the outside of a bend, which in this case is the Iowa bank. Additionally, there is a logical explanation for the later presence of the channel on the Illinois side of the island: dredging by the corps of engineers that had the, effect of diverting the channel from the west side of Keg Island to the east.

But perhaps the evidence that most undermines the State’s case is Warren’s report of his observation of the Mississippi River in the 1860s and his description of the process whereby the channel would shift from one side of an island to the other, side of the island and back again. Although the experts characterized the river as relatively stable, the documented occurrence of channel changes makes it difficult to locate the thalweg in 1818 or 1846 based on its position in 1877.

In summary, the location of the navigational channel east of Keg Island in 1877 up to the present date does not convince this court that it is more likely than not that the thalweg was east of Keg Island at the time of and prior to Iowa’s statehood. Accordingly, we agree with the trial court that the State has not proved it acquired sovereign title to Keg Island when Iowa joined the Union in 1846. Therefore, we affirm’ the district court’s denial of the State’s petition to quiet title and for in-junctive relief.

AFFIRMED.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    Diane PERKINS, Appellee, v. HEA OF IOWA, INC. d/b/a Clinton Retirement Village, Employer, and Insurance Company Of North America, Appellants.
    No. 00-1203.
    Supreme Court of Iowa.
    Sept. 5, 2002.

      Mark A. Woollums and Peter J. Thill of Betty, Neuman & McMahon, L.L.P., Davenport, for appellants.
    James D. Bruhn of Farwell & Bruhn, Clinton, for appellee.
   LARSON, Justice.

Diane Perkins contracted hepatitis C as a result of her employment at HEA of Iowa, a retirement facility in Clinton. An arbitrator awarded her workers’ compensation benefits, but the award was vacated by the acting industrial pommissioner. On judicial review, the award was reinstated by the district court, which ruled that the commissioner’s findings, with respect to the application of our discovery rule, were not supported by substantial evidence. The employer appealed. The court of appeals, on a divided vote, affirmed. We granted the employer’s application for further review. We affirm the decision of the court of appeals and the judgment of the district court.

I. Facts and Prior Proceedings.

The industrial commissioner found the following facts. On October 2, 1990, a patient at HEA had a shunt in his leg used for attaching a dialysis catheter. The shunt was pulsating and leaking blood. The charge nurse directed Perkins to take the patient’s vital signs and to re-dress the shunt wound. Part of Perkins’ job was to listen for “bruits” (or unusual noises). As Perkins leaned over the patient’s leg to listen for bruits near the shunt, the leg ruptured. The entire room was sprayed with blood. Perkins had blood all over her body and in her mouth, eyes, and ears.

The patient was infected with hepatitis C, a fact not known to Perkins prior to the rupture. Perkins testified she did not even know what hepatitis C was at that time. A written report of the incident was made, and Perkins was informed by the director of nursing at HEA that, because the patient had hepatitis C, Perkins needed to be tested. A letter in evidence from HEA to its insurance carrier regarding this event described the protocol for testing for hepatitis C infection. The tests should be conducted shortly after possible exposure in order to determine whether the exposed person had been previously infected. Six months later a second test should be performed to determine if the disease had actually been contracted. A third test is recommended at one year after exposure. Perkins was tested on October 11, 1990, shortly after the event, and the test results were negative. The testing physician recommended that she be retested six months after her exposure. However, no other testing was done until late 1995 when Perkins had pneumonia or early 1996 when she was seen at the University of Iowa Hospitals and Clinics. Through these tests, Perkins was found to have abnormal liver function, but she was not actually diagnosed with hepatitis C until April 1996.

Perkins filed a workers’ compensation claim in October 1996. HEA defended on the grounds that this was an occupational disease under Iowa Code chapter 85A (1995), and her claim was barred by the one-year statute of repose under section 85A.12. In the alternative, HEA claimed, if this was an “injury” under Iowa Code chapter 85, it was barred by the two-year statute of limitations of section 85.26(1). Perkins responded that this event did not result in an occupational disease under chapter 85A, and as to the statute of limitations under chapter 85, her injury had not been discovered until 1995 or 1996. Under our discovery rule, she claims, her application for benefits was timely.

II. Principles of Review.

Our review of an industrial commissioner’s decision is on error, not de novo. We, like the district court, are bound by factual findings made by the commissioner so long as those findings enjoy substantial support in the record made before the agency.

Gates v. John Deere Ottumwa Works, 587 N.W.2d 471, 474 (Iowa 1998) (citing Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 271 (Iowa 1995)). The industrial commissioner found that Perkins was put on “inquiry notice” at the time she was advised of the seriousness of hepatitis C exposure and the necessity of further testing.

While the focus of the industrial commissioner and the reviewing courts has been on the application of the discovery doctrine, we must first focus on the employer’s claim that this was an occupational disease, not an industrial injury. If it was an occupational disease, Iowa Code section 85A.12 would indisputably defeat the claim because that section is a statute of repose, not a statute of limitation. Therefore, the discovery rule would be inapplicable to save the plaintiffs case. See Ganske v. Spahn & Rose Lumber Co., 580 N.W.2d 812, 815 (Iowa 1998). We therefore address the question of whether this was an occupational disease or an industrial injury.

III. The Occupational Disease Argument.

The statutory definition describes an occupational disease in terms of a worker’s “exposure” to conditions in the workplace.... The term “exposure” indicates a passive relationship between the worker and his work environment rather than an event or occurrence or series of occurrences, which constitute injury under the Workers’ Compensation Act.

Noble v. Lamoni Prods., 512 N.W.2d 290, 295 (Iowa 1994).

We have said:

[A]n “injury” is distinguished from a “disease” by virtue of the fact that an injury has its origin in a specific identifiable trauma or physical occurrence or, in the case of repetitive trauma, a series of such occurrences. A disease, on the other hand, originates from a source that is neither traumatic nor physical....

Id. (quoting Luttrell v. Indus. Comm’n, 154 Ill.App.3d 943, 107 Ill.Dec. 620, 507 N.E.2d 533, 541-42 (1987)).

It is significant in determining whether Perkins suffered an occupational disease, or an injury under workers’ compensation, that Perkins’ infection was linked to a sudden, specific incident of exposure.

The contraction of disease is deemed an injury by accident in most states if due to some unexpected or unusual event or exposure. Thus, infectious disease maybe held accidental if the germs gain entrance through a scratch or through unexpected or abnormal exposure to infection.

3 Larson’s Workmen’s Compensation Law § 51, at 51-1 (2002).

Under our case law,

“[a] personal injury, contemplated by the Workmen’s Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee.... The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. This is the personal injury contemplated by [the workers’ compensation statute].”

St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 650-51 (Iowa 2000) (quoting Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 850-51 (Iowa 1995)) (citations omitted); see also Dyke v. St. Francis Hosp., Inc., 861 P.2d 295, 301-02 (Okla.1993); Enid State Sch. v. Mitchell, 590 P.2d 1179, 1180 (Okla.1978); City of Nichols Hills v. Hill, 534 P.2d 931, 934-35 (Okla.1975).

We agree with the industrial commissioner, the district court, and the court of appeals that this was an “injury” under the workers’ compensation provisions of Iowa Code chapter 85, not an “occupational disease” under chapter 85A. The issue still to be resolved is the application of the statute of limitations and the discovery rule.

XV. The Discovery Issue.

Under Iowa Code section 85.26(1),

[a]n original proceeding for benefits under this chapter or chapter 85A ... shall not be maintained in any contested case unless the proceeding is commenced within two years from the date of the occurrence of the injury for which benefits are claimed....

This two-year statute of limitations is tempered by our “discovery” rule, which tolls the running of the statute until the injury is or should have been discovered. See Ranney v. Parawax Co., 582 N.W.2d 152, 154 (Iowa 1998). The application of the discovery rule in personal injury and workers’ compensation cases has spawned considerable litigation in this court. The key issue has been: What did the claimant know concerning the elements of her claim, and when did she know it? The issue turns on whether Perkins was sufficiently on notice of an injury so as to have a duty to investigate further, under the reasonable-diligence standard, by arranging to be tested again after six months and one year from her exposure. This notice of the need to investigate has been referred to as “inquiry notice.” Ranney, 582 N.W.2d at 155.

Knowledge is imputed to a claimant when he gains information sufficient to alert a reasonable person of the need to investigate. As of that date he is on inquiry notice of all facts that would have been disclosed by a reasonably diligent investigation.

Id. (citation omitted). The industrial commissioner found that the statute of limitations, Iowa Code § 85.26(1), barred Perkins’ claim because she was on inquiry-notice of the key elements of her claim immediately upon her exposure to the patient’s blood.

We held in Ranney that

the two-year limitation period begins to run when “the employee discover[s] or in the exercise of reasonable diligence should ... discovert ] the nature, seriousness and probable compensable character” of his injury or disease.

Id. at 154 (quoting Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 261 (Iowa 1980)). We have held that a claimant must have knowledge, either actual or implied, of all three characteristics of the injury before the statute begins to run. Swartzendruber v. Schimmel, 613 N.W.2d 646, 650 (Iowa 2000); Montag v. T.H. Agric. & Nutrition Co., 509 N.W.2d 469, 470 (Iowa 1993).

In Ranney the claimant was exposed to toxic paint solvents in his job from 1975 to 1981. In 1985 he was diagnosed with Hodgkin’s disease. Following his diagnosis, he inquired of several doctors about a possible connection between his exposure to the chemicals and his disease. In 1987 or 1988 his wife was a law student, and she discussed with Ranney the possibility of a connection between the exposure to chemicals and his health condition. Ranney, 582 N.W.2d at 154. In 1991 Ranney asked a treating doctor about a connection, and the doctor confirmed a link between the job and his injury. Ranney filed his workers’ compensation case in 1991 and relied on the discovery rule to avoid the application of the statute of limitations.

We rejected Ranney’s claim that inquiry notice did not apply to his case because he suffered from a latent injury. We said:

When Ranney was diagnosed with Hodgkin’s disease in 1985, his condition was no longer latent; it was then known. At that point, Ranney was subject to the same duty to investigate as is any other plaintiff who knows he has sustained an injury.

Id. at 154. We also rejected Ranney’s argument that he could not be charged with inquiry notice unless he was aware of the probable connection between his injury and his employment.

We think that once a claimant knows or should know that his condition is possibly compensable, he has the duty to investigate. The purpose of the investigation is to ascertain whether the known condition is probably, as opposed to merely possibly, compensable.

Ranney, 582 N.W.2d at 155 (citations omitted).

In Montag the claimant was exposed to a toxic spray known as Agent Orange from 1962 to 1964. In 1979 the claimant was diagnosed with liposareoma, and he began treatment. The evidence was that in 1986 his doctor informed him that, while the doctor did not know of a connection with the claimant’s employment, “it could be looked into further.” Montag, 509 N.W.2d at 470. The fact that Montag knew he had an illness in 1979 and knew of a possible connection with his employment in the early 1960s precluded the application of the discovery rule in his case. He did not file suit until 1991, and we held it was barred by the two-year statute of limitations of Iowa Code section 614.1(2). We said:

Montag had enough information, more than two years preceding the filing of his lawsuit, to put him on notice that he should investigate. In fact, at least by 1986, he had already begun his investigation.

Id. at 471.

In Gates v. John Deere Ottumwa Works, 587 N.W.2d 471 (Iowa 1998), the claimant suffered a back injury and had surgery in 1985 and 1988. In 1991 he underwent bilateral hip surgery to treat a condition of aseptic necrosis in his hips, determined by his doctor to be caused by negligent treatment in 1988 to relieve the claimant’s back pain. The workers’ compensation claim, filed in 1993, was determined to be too late because he “was fully aware of the seriousness of his back injury, and its work-related and compensable nature, no later than February 1988.” Gates, 587 N.W.2d at 475.

In LeBeau v. Dimig, 446 N.W.2d 800 (Iowa 1989), the plaintiff was injured in an automobile accident on November 12, 1983. She made a claim for minor head injuries and was paid by the other driver, Dimig. In August 1985 LeBeau was diagnosed as having epilepsy. On July 31, 1987, she sued Dimig, claiming the epilepsy was caused by the 1983 accident. Le-Beau, 446 N.W.2d at 801. The defendant raised the two-year statute of limitations under Iowa Code section 614.1(2). The plaintiff resisted a motion for summary judgment based on that defense by claiming she did not know, until 1985, that she had epilepsy. We said:

The issue raised in this appeal, however, is apparently one of first impression: When an accident occurs causing minor injuries and later more serious injuries appear, does the plaintiffs cause of action “accrue” for statute of limitations purposes at the time of the first injury; at the time of the later manifestation of another injury; or are there two time periods, one commencing with the first injury and the other upon discovery of the second injury?

Id. at 801-02. We characterized this as a “traumatic event/latent manifestation” case, or

one in which the plaintiff has sustained both immediate and latent injuries caused by a noticeable, traumatic occurrence. At the time of the traumatic event, the plaintiff realizes both that he is injured and what is responsible for causing the injury. The full extent of the harm, however, has not become manifested.

Id. at 802 (quoting Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 231 (5th Cir.1984)). Although we characterized Le-Beau’s argument as “compelling,” we rejected it because her theory would allow splitting of a cause of action, resulting in the application of different statutes of limitation and inserting uncertainty into the resolution of such cases. LeBeau, 446 N.W.2d at 802. In LeBeau we held the plaintiffs initial complaint of a minor injury and her collection of a relatively small settlement ($200) evidenced sufficient awareness of her injury to subject her claim to the two-year statute of limitations. Id. at 803. This “seriousness” component of inquiry notice, see Ranney, 582 N.W.2d at 154, is not triggered by “every minor ache, pain, or symptom” as we have noted. See Swartzendruber, 613 N.W.2d at 650 (citing 2B Arthur Larson, Workers’ Compensation § 78.41(e), at 15-279 (1994)). Therefore,

the failure to file a claim within two years of the occurrence of the injury may be excused if the claimant had no reason to believe the condition was serious. If the injury is trivial or minor, or the symptoms indicate no serious problem, the seriousness component is not met.

Swartzendruber, 613 N.W.2d at 650 (citation omitted).

Y. Resolution of the Discovery Issue.

The industrial commissioner in assessing the discovery issue stated:

Claimant knew shortly after the incident at the nursing home that she had been exposed to hepatitis C. She was tested, and informed of the seriousness of the disease or condition [which she did not yet have]. She was counseled to return for further testing in six to twelve months for a final determination regarding her status. She was fully informed of the need for the testing, and underwent the initial tests. Claimant did not follow-up with the medical care providers to undergo the later testing.
Claimant knew of the possibility that she contracted hepatitis C at the time she took the initial test, October 11, 1990. As of October 11, 1990, she had been informed that the patient had hepatitis C.
Based on the evidence, it cannot be determined that claimant was unaware of the seriousness of her condition, and that the condition was work-related.
Claimant failed to file her petition within two years after the date of the injury, which was October 2,1990. As a result, she takes nothing from these proceedings.

(Emphasis added.)

None of our eases, and none of those cited by the HEA or the industrial commissioner, have applied the rule of law announced in the commissioner’s ruling, ie., that exposure to a disease triggers a duty to inquire further. In all of the Iowa cases discussed in this opinion, the claimant knew he or she was injured, not merely exposed to injury, before the duty to inquire arose. In some cases the claimant did not know how serious the injury was or whether it was work-related, but in all of the cases the claimant knew he or she had suffered an injury before the statute of limitations began to run.

The Oklahoma Supreme Court, in another hepatitis C case, reached the same conclusion:

Mere exposure to an infectious disease, no matter how threatening, is not enough to constitute a compensable event — it is not “accidental injury.” An on-the-job exposure must pass through the incubation period and develop into an infectious disease before it may be viewed as an accidental injury compen-sable by the employer. An employer’s apprehension of an employee’s exposure to a disease, even when followed by the act of administering prophylactic vaccination, cannot be translated into compensation liability for an “accidental personal injury.”

Dyke, 861 P.2d at 301-02.

If there is anything clear in this record with respect to the “condition” to which the commissioner referred, it is that as of the time Perkins is charged with inquiry notice she had not been injured. She had been exposed through a traumatic and frightening event, but she was not injured. If, as we have said, inquiry notice does not arise from “every minor ache, pain, or symptom,” Swartzendruber, 613 N.W.2d at 650, inquiry notice surely cannot be triggered when there is no ache, pain, or symptom of an injury. An injury is generally defined as “[t]he violation of another’s legal right, for which the law provides a remedy; a wrong or injustice.” See Black’s Law Dictionary 789 (1999). Our workers’ compensation law does not provide a remedy for a person who has merely been exposed to injury.

We hold the date of injury was the date Perkins discovered she had hepatitis C, April 20, 1996, the date it was diagnosed. It did not commence from the date she was exposed to it. The industrial commissioner’s application of a contrary rule in this case is “affected by other error of law,” Iowa Code § 17A.19(8)(e), and must be reversed. We therefore affirm, although on different grounds, both the ruling of the court of appeals and the judgment of the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

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


author: NEUMAN, Justice.

text:
    J. David VASCONEZ, Appellee, v. Judy Ann MILLS and Audie Mills, Appellants.
    No. 00-1821.
    Supreme Court of Iowa.
    Sept. 5, 2002.

      John T. McCoy of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellants.
    Edward J. Gallagher, Jr., and E.J. Gallagher, III, of Gallagher, Langlas & Gallagher, Waterloo, for appellee.
   NEUMAN, Justice.

This is an appeal from a judgment for the plaintiff in a suit for injuries sustained by a bicyclist who was struck by a truck while riding on a rural blacktop road. On appeal the defendant truck driver contends the court erred when it refused to submit jury instructions on comparative fault and the “sudden emergency” doctrine. Defendant also contests adverse rulings on two evidentiary objections. Finding no error warranting reversal, we affirm the judgment entered on the jury’s verdict.

I. Background Facts and Proceedings.

A jury could have found the following facts. At approximately 6:30 p.m. on September 9, 1997, plaintiff David Vasconez was riding his bicycle in a westerly direction on D35, a county highway two miles east of Hudson, Iowa. It was clear and sunny. There was little traffic, even though the route served temporarily as a detour for Highway 63. Vasconez, an experienced cyclist, wore a helmet and traveled along the right side of the road within a foot of the pavement’s edge. The road’s narrow shoulder was unpaved.

Also proceeding westerly on D35 was the defendant, Judy Mills, a contract driver for the U.S. Postal Service. Mills’ vehicle was a ten thousand pound straight truck loaded with 1200 pounds of mail. Because she was heading into the setting sun, she wore sunglasses and pulled down her windshield visor to block the sun’s rays as best she could. As Mills came over a slight rise she was partially blinded by the sun’s glare but could see the center of the pavement. She continued to drive at the posted speed limit of 55 miles per hour as she knew from experience that the sun’s effect would be only temporary. Suddenly she heal'd a “thump” and, looking in her rear-view mirror, saw Vasconez heading over the handlebars of his bicycle into the ditch. She immediately pulled over to check on Vasconez and then drove to a nearby farmhouse to call for help.

Mills told the residents at the farmhouse as well as the officer who investigated the accident that she had been blinded by the sun and had not seen Vasconez before she hit him. For his part, Vasconez has no independent recollection of the event. Evidently due to the mild concussion he suffered, he recalls only that he “came to” sometime later in the hospital feeling as though he had been “hit by a truck.”

At the time of the accident, Vasconez — • then twenty-six years old — was employed as a fifth grade teacher in Marshalltown. He was hospitalized for two days for physical injuries sustained in the accident — a fractured collarbone, substantial bruising to his left arm, elbow and buttocks, as well as the concussion — and remained home from work for approximately two weeks. Only upon his return to the classroom did the full impact of the collision reveal itself. Fluent in two languages as well as an accomplished musician, Vasconez suddenly found himself unable to speak clearly, recall students’ names or organize lesson plans. Formerly affable and easygoing, he became irritable and prone to temper outbursts. Doctors diagnosed his problems with memory, concentration, fatigue, frustration and slurred speech as symptomatic of a closed head injury.

Vasconez brought suit against Mills for personal injuries suffered as a result of her alleged negligent driving. At trial the parties’ dispute centered on two main issues: (1) whether Mills’ liability for failure to keep a proper lookout should be reduced by fault attributable to Vasconez or excused due to the effect of blinding rays of the sun and, (2) the scope and permanency of Vasconez’ closed head injury. Over Mills’ objection, the court refused to instruct the jury on the doctrines of comparative fault or sudden emergency, finding no basis in the record to support their submission. The jury returned a verdict for Vasconez totaling $415,651, and this appeal by Mills followed.

Further facts will be detailed as they pertain to the issues on appeal. The parties agree that our appellate review is limited to the correction of errors at law. Iowa R.App. P. 6.4.

II. Issues on Appeal.

A. Comparative fault.

Mills argued at trial and contends on appeal that she was entitled to instructions that would permit the jury to apportion fault against Vasconez both for his alleged “negligen[ce] in the operation of his bicycle” and for his failure to mitigate damages. See Iowa Code § 668.1(1) (1999) (defining fault to include “an unreasonable failure to avoid an injury or to mitigate damages”). The district court rejected Mills’ contentions, convinced that the evidence, when viewed in the light most favorable to the defendant, did not warrant submission of comparative fault instructions. For the reasons that follow, we agree with the district court.

1. Liability.

Parties are entitled to have their legal theories submitted to the jury so long as the instructions embodying those theories correctly state the law, have application to the case and are not otherwise covered in the court’s instructions. Vaughan v. Must, Inc., 542 N.W.2d 533, 539 (Iowa 1996). Proposed instructions must enjoy support in the pleadings and substantial evidence in the record. Beyer v. Todd, 601 N.W.2d 35, 38 (Iowa 1999). Evidence is substantial if a reasonable person would accept it as adequate to reach a conclusion. Id. It is axiomatic that if, at the close of all the evidence, the record is insufficient to support a party’s theory of recovery or defense, the court need not submit the theory to the jury and may direct a verdict on the issue as a matter of law. Swift v. Petersen, 240 Iowa 715, 721-22, 37 N.W.2d 258, 261 (1949).

The instructions proposed by Mills would have advised the jury that a bicyclist is obligated to maintain a proper lookout and, in determining fault, the jury could consider the fact that the bicyclist was voluntarily performing an activity “which he knows involves a risk.” Mills argues such instructions were justified here based on testimony elicited from Vas-conez and one of his close bicycling companions. Both men acknowledged that, in general, a reasonable bicyclist would be alert to traffic approaching from the rear. They likewise agreed that safe bicycling includes consideration of adverse weather conditions, the width of- the roadway, and the speed and number of motorized vehicles traveling the same route.

The weakness in Mills’ argument is that, apart from these witnesses’ generalized observations, the record contains absolutely no proof that the accident in question resulted from Vasconez’ failure to keep a proper lookout or otherwise avoid foreseeable harm. Mills’ own testimony confirmed her belief that Vasconez did nothing wrong to cause this accident. She simply did not see him, an arguably clear breach of her duty of lookout. See McCoy v. Miller, 257 Iowa 1151, 1157, 136 N.W.2d 332, 336 (1965) (driver’s duty of proper lookout “implies being watchful of the movements of the driver’s own vehicle in relation to the things seen and which could have been discerned or seen in the exercise of ordinary care”). As for Vasconez’ duty of lookout to the rear, the law imposed on him “only sufficient observation to establish an awareness of the presence of others at a time when a maneuver is contemplated which may endanger a following vehicle.” Id. at 1157, 136 N.W.2d at 336 (emphasis added). The record contains not the slightest hint that Vasconez turned, swerved or executed any other maneuver prior to Mills’ collision with his bicycle. Thus the court committed no error when it deemed the evidence insufficient as a matter of law to engender a jury question on the plaintiffs alleged breach of his duty of lookout.

Two other fundamental principles defeat Mills’ alternative ground for the submission of a comparative fault instruction. By statute, a bicyclist in Iowa is subject to the rules of the road and “has all the rights and duties ... applicable to the driver of a vehicle.” Iowa Code § 321.234(2). Mills attempts to fault Vas-conez for riding on a county road instead of a bike path, riding alone (thereby reducing his visibility), and riding in a westerly direction near sunset. However none of this conduct is illegal. And ascribing negligence to such choices would be ludicrous if applied to any other motorist. Given the legislative policy implicit in section 321.234(2), we find no basis for the claim that such choices constitute negligence for a bicyclist.

Second, Vasconez was entitled to assume that others using the road would obey the law until the circumstances reasonably revealed otherwise. Iowa R.App. P. 6.14(6)(i). Under the law, Vasconez was entitled to assume that a vehicle approaching Mm from behind would see him and respond appropriately. Mills testified that there were no vehicles coming toward her in the opposite lane that would have impeded her ability to easily pass Vasco-nez, had she seen him. Under these facts, Vasconez had no reason — or duty — to take evasive action.

The district court aptly summed up the record and the law this way:

The only evidence is that plaintiff was riding a bicycle on a road and that’s all. There is no evidence that the plaintiff did anything other than ride his bike on a sunny day in a westerly direction. That, to me, does not present substantial evidence on which to base [a] comparative fault instruction with respect to liability.

We agree with the court’s conclusion and, accordingly, reject Mills’ claim for reversal on this ground.

2. Mitigation of damages.

Much of the evidence at trial centered on Vasconez’ success (or lack thereof) in coping with his disabling head injury. Testimony revealed that physicians treated him with various medications in the months following the accident for severe headaches and accompanying emotional disturbances. He also consulted with and was treated by an occupational therapist, orthopedist, neuropsychologist, chiropractor, rehabilitation specialist, and massage therapist. When Vasconez and his new wife moved from Iowa in connection with her career, he consulted with Michael J. Pedoto, M.D., a brain injury specialist. Vasconez and his wife also participated in a lengthy course of marriage counseling, an effort that ultimately proved to be unsuccessful in saving their marriage.

In clinical notes from early June 2000, Dr. Pedoto reported that a neuropsychologist, Dave Tranel, believed that Vasconez’ fingering emotional distress might not be entirely related to injury stemming from the accident and that further psychotherapy might be valuable. Tranel testified similarly at trial. The record also reveals that Vasconez declined Dr. Pedoto’s referral to another psychologist, expressing his belief that “he had reached a static level with counseling” and preferred to try “managing] things on his own.”

Based on this record, Mills sought an instruction permitting the jury to find that Vasconez failed to mitigate his damages. The district court concluded the record contained insufficient proof upon which to base such an instruction. We find no error in the ruling.

Before a failure-to-mitigate claim may be submitted, the defendant must introduce substantial evidence that (1) there was something the plaintiff could have done to mitigate his loss, (2) requiring the plaintiff to do so was reasonable under the circuinstances, (3) the plaintiff acted unreasonably in failing to undertake the mitigating activity, and (4) a causal connection exists between the plaintiffs failure to mitigate and the damages claimed. Greenwood v. Mitchell, 621 N.W.2d 200, 205 (Iowa 2001). The defendant shoulders the burden of proving these four elements of the defense. Id. at 206.

Here, neither of the professionals who recommended further counseling was questioned about Vaseonez’ failure to heed their suggestions so as to permit the jury to assess the reasonableness of their advice or the unreasonableness of his response. Nor did the defendant tender proof that additional counseling would have mitigated the damages sustained. As the district court noted, nothing in the record suggests that Vaseonez’ decision to forgo additional counseling “was against medical advice.” In the absence of proof on the essential elements of the mitigation-of-damages claim, the district court correctly refused to submit it.

B. Sudden emergency doctrine.

In her amended answer, Mills claimed that any failure on her part to keep a proper lookout as required by law “was legally excused and/or caused by a sudden emergency” because she was “partially blinded by the sun at the time of the accident.” At trial she submitted a proposed instruction regarding the issue of legal excuse but, over her objection, the court directed a verdict in favor of Vasco-nez on the defense. Mills challenges the court’s ruling on appeal, contending factual questions existed concerning whether she was confronted by an emergency and acted reasonably in response to it. Like the district court, we are convinced the record contains neither legal nor factual support for submission of the defense.

The sudden emergency doctrine “allows a fact finder to excuse a defendant’s failure to obey statutory law when confronted with an emergency not of the defendant’s own making.” Foster v. Ankrum, 636 N.W.2d 104, 106 (Iowa 2001). A “sudden emergency” is defined as:

(1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; (3) a sudden or unexpected occasion for action, exigency, pressing necessity.

Id. (quoting Bangs v. Keifer, 174 N.W.2d 372, 374 (Iowa 1970)). The doctrine “reflects the realization that a person who is confronted with an emergency situation is ‘left no time for thought, or is reasonably so disturbed or excited, that he cannot weigh alternative courses of action, and must make a speedy decision, based largely upon impulse or guess.’” Jones v. Blair, 387 N.W.2d 349, 352 (Iowa 1986) (quoting W. Prosser, The Law of Torts § 33, at 169 (4th ed.1971)). To excuse otherwise unlawful or negligent conduct, the event characterized as an emergency must compel “if not an instantaneous response, certainly something fairly close to that.” Foster, 636 N.W.2d at 106.

The burden of proving a sudden emergency falls on the person asserting the excuse. Jones, 387 N.W.2d at 352. “[A] person is not entitled to the benefit of the emergency rule if it clearly appears [s]he either had actual knowledge of a dangerous situation or in the exercise of reasonable care could have such knowledge in time to act in relation thereto.” Rice v. McDonald, 258 Iowa 372, 380, 138 N.W.2d 889, 894 (1965).

Here we are convinced, as was the district court, that the “sunlight” situation was common and expected, and, while the blinding effect of the rays was not an emergency of Mills’ own making, it was a situation in which Mills failed to conduct herself properly. First, Mills’ own testimony reveals that she was well-acquainted with this route, having driven it “several times” in the days preceding the accident. Familiar with the challenge of driving west into the sun over the slight rises in this roadway, Mills testified the blinding rays were, “just a temporary thing ‘til you got to the level ground.” Plainly Mills was not faced with an unexpected or sudden condition. See Weiss v. Bal, 501 N.W.2d 478, 481 (Iowa 1993) (unfair to permit jury to excuse driver’s conduct when alleged “emergency” is not uncommon but foreseeable).

Second, although neither the setting sun nor its blinding rays were a product of any “fault” on Mills’ part, because the condition was known and foreseeable she was required to respond to the situation in a reasonable manner. Bannon v. Pfiffner, 333 N.W.2d 464, 470 (Iowa 1983). Here, Mills unequivocally stated that despite the fact she was “partially blinded” by the sunlight, and could not see in front of her “a hundred percent,” she “continued with [her] same speed,” approximately fifty-five miles per hour for ten to fifteen seconds. In Foster, we held a sudden emergency defense was properly rejected where the driver had “ten to fifteen seconds” to assess the situation and take prudent action short of running over the plaintiff. Foster, 636 N.W.2d at 107. So also here, although Mills wore sunglasses and pulled down her visor, her act of failing to slow down in the face of foreseeably impaired vision violated the basic premise of the sudden emergency doctrine: that a person acting 'with knowledge of a dangerous situation exercise reasonable care in response to it. Rice, 258 Iowa at 380, 138 N.W.2d at 894. Many other courts faced with this issue have held that when sunlight blinds a driver so that the road cannot be clearly seen, a duty exists to reduce speed and maintain control of the vehicle at all times. Nagata v. Kahului Dev. Co., 49 Haw. 378, 420 P.2d 103, 111 (1966); Addison v. Traveler’s Ins. Co., 281 So.2d 805, 810 (La.Ct.App.1973); Levine v. Scaglione, 95 N.J.Super. 338, 231 A.2d 229, 231 (1967); see generally Wade R. Habeeb, Liability or Recovery in Automobile Negligence Action as Affected by Driver’s Being Blinded by Lights Other Than Those of a Motor Vehicle, 64 A.L.R.3d 760, 764 (1976).

In short, there is nothing more certain than the sun setting in the west. And a driver heading west near sunset can expect to be faced with the sun’s rays. A driver, such as Mills, whose conduct fails, to account for that foreseeable hazard, essentially “create[s] the emergency; the emergency does not create the conduct to be excused.” Weiss, 501 N.W.2d at 482. Under the record made here, the court did not err when it refused to give a sudden emergency instruction.

C. Evidentiary issues.

Two of Vasconez’ treating physicians, Dr. Verduyn and Dr. Pedoto, testified that he sustained a fifteen percent permanent disability as a result of the collision. Mills objected to a portion of Dr. Verduyn’s deposition testimony on hearsay grounds and also challenged personal testimony by Vasconez concerning his expressed belief that his disability prevents him from obtaining an advanced degree. Mills challenges these evidentiary rulings on appeal. Although we generally review evidentiary rulings for abuse of discretion, decisions impheating hearsay are reviewed for correction of errors at law. City of Dubuque v. Fancher, 590 N.W.2d 493, 495 (Iowa 1999).

1. Dr. Verduyn’s testimony.

Mills’ challenge to Dr. Verduyn’s deposition testimony centers on the fact that his conclusions regarding permanency were based, in part, on a telephone conversation he had with Vasconez one day prior to his deposition. The doctor had initiated the conversation “to see how [Vasconez] was doing.” Because Vasconez had moved from Iowa to Ohio, he and the doctor had not been in contact for nearly fourteen months. During the conversation, Vasco-nez reported that he was still suffering headaches. In his opinion on permanency, Verduyn commented on their conversation and attached significance to the fact that “three years after the incident” Vasconez was still having headaches, a sign that the symptoms would “stay probably pretty level for awhile.”

Mills argued in the trial court, and urges on appeal, that because Verduyn was not Vasconez’ “treating physician” at the time of their conversation, Vasconez’ statements to him did not qualify under the “medical diagnosis and treatment” exception to the hearsay rule. See Iowa R. Evid. 5.803(4). Accordingly, Mills argues, they were unreliable and should not have been admitted. Her argument rests on the distinction articulated in Devore v. Schaffer, 245 Iowa 1017, 1021, 65 N.W.2d 553, 555 (1954), between “treating” physicians and other experts. In Devore we said:

The distinction ... between a medical expert witness who is called to treat and actually treats the patient and one called merely to testify seems well established .... [T]he rule permitting a doctor to testify as to the history of the case is an exception to the hearsay rule based on ‘a probability that the patient will not falsify in statements made to his physician at a time when he is expecting and hoping to receive from him medical aid and benefit. But no such presumption can be indulged, and such testimony is not admissible, according to the great weight of authority, when the patient, having become a litigant, causes himself to be examined by a physician for the purpose of the latter giving evidence in a case about to be tried.’

Devore, 245 Iowa at 1021, 65 N.W.2d at 555 (citations omitted).

We begin our analysis of this issue by observing that Verduyn’s testimony is arguably distinguishable from the expert testimony at issue in Devore because Verduyn had in fact been Vasconez’ treating physician at one time. He plainly had firsthand knowledge of Vasconez’ history, treatment and prognosis for recovery. Cf. id. at 1021, 65 N.W.2d at 555 (reversal ordered where jury unable to determine whether non-treating physician’s opinions were based on personal examination or litigant’s “self-serving declarations”). Nevertheless Mills correctly asserts that Vasconez’ disputed statements do not meet the first prong of the two-part test for admissibility of hearsay under rule 5.803(4) adopted by this court in State v. Tracy, 482 N.W.2d 675, 681 (Iowa 1992):

[F]irst, the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.

Accord State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998). Plainly Vasconez’ pre-deposition conversation with Verduyn had nothing to do with promoting his treatment. For that reason, it was error for the court to overrule Mills’ objection premised on this ground.

Although erroneously admitted hearsay is presumed prejudicial, reversal is not warranted if the admitted hearsay is merely cumulative of other evidence in the record. Hildreth, 582 N.W.2d at 170. The testimony of Vasconez’ then-treating physician, Dr. Pedoto, essentially duplicated the diagnosis and opinion offered by Verduyn. Pedoto’s opinion rested, in part, on Vasconez’ ongoing complaints of headaches, testimony consistent with Vasconez’ reported statements to Verduyn. Vasco-nez furnished the same testimony at trial. Because evidence identical to the disputed testimony came in without objection, no ground for reversal appears.

2. Future economic loss.

By pre-trial motion in limine, and by evidentiary objection at trial, Mills sought to limit Vasconez’ testimony concerning future economic loss stemming from his alleged inability to obtain a masters or doctorate in education. The question is whether Vasconez’ personal projection of future loss of earning capacity was speculative and without foundation. The district court ruled that the evidence tendered on the point was relevant and material to Vasconez’ claims and that Mills’ arguments essentially went to the weight of the evidence, not its admissibility. We agree.

The record revealed that Vasconez’ parents, who were both teachers, had obtained such advanced degrees. Vasconez testified that, before the accident, he had expected to follow in their footsteps, having personally enjoyed considerable success and satisfaction in both his academic training and performance as a teacher. Evidence corroborating those assertions was admitted without objection. He also testified to his personal knowledge that educators with advanced degrees in the school system in which he worked earn upwards of $100,000 per year, nearly twice his salary at the time of trial. Vasconez explained that the cognitive impairment and fatigue associated with his brain injury had discouraged him from pursuing an advanced degree. He testified that most of his colleagues had obtained their masters degrees by attending courses at night and on weekends, a task that now seemed beyond his reach. Vasconez’ personal assessment of his limitations, and the likelihood that they would be permanent, was corroborated by expert testimony in the record.

Although Mills complains that it is speculative whether Vasconez would have ever secured an advanced degree, let alone whether obtaining one would have increased his salary, “it is the loss of earning capacity that is compensable, not the loss of earnings.” Sallis v. Lamansky, 420 N.W.2d 795, 798 (Iowa 1988). A jury may infer from an impairment of physical capacity a corresponding lessening in future earning ability. Holmquist v. Volkswagen of Am., Inc., 261 N.W.2d 516, 525 (Iowa 1977). The record contains abundant evidence concerning the impairment of Vasco-nez’ physical capacity. Moreover, it is not necessary to produce the expert testimony of an economist in order to generate a jury issue on the question of projected economic loss. See Carradus v. Lange, 203 N.W.2d 565, 569 (Iowa 1973) (plaintiffs personal testimony regarding educational and work limitations “adequately generated” jury issue on right to damages for impairment of earning capacity).

The jury was entitled to consider Vasco-nez’ personal familiarity with the salaries in question and give his opinion such weight as it deserved. Sallis, 420 N.W.2d at 798. Clearly the evidence was relevant to the claim being made, that is, whether Vasconez’ future economic loss was “more or less probable than it would be without the evidence.” Iowa R. of Evid. 5.401. In short, we are convinced the court did not abuse its broad discretion in admitting this evidence. No ground for reversal appears.

AFFIRMED.

      . It seems evident to us that the same conclusions could have been drawn by the doctor and admitted in evidence based, not on Vas-conez’ hearsay statements, but on the physician's expertise applied to hypothetical facts supported under this record. See Devore, 245 Iowa at 1027, 65 N.W.2d at 558 (Mulroney, J., dissenting).


author: JAMES H. GILBERT Associate Justice.

text:
    Peggy BURRICHTER, Respondent, v. UNIPATCH MEDICAL SUPPLIES, and AIG administered by Sedgwick Claims Management Services, Relators, and Mayo Foundation, Intervenor.
    No. C3-02-941.
    Supreme Court of Minnesota.
    Sept. 17, 2002.
    Raymond R. Peterson, McCoy, Peterson, Jorstad & Babbit, Minneapolis, MN, for Employee-Respondent’s Attorney(s).
    Eugene J. Flick, Jardine, Logan & O’Brien, Lake Elmo, MN, for Relators’ Attorney(s).
    Brian W. Roty, Mayo Foundation, Rochester, MN, for Intervenor-Respondent’s Attorney(s).
   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 May 10, 2002, 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:

JAMES H. GILBERT Associate Justice.


author: RUSSELL A. ANDERSON Associate Justice.

text:
    Arvid L. FRANSON, Respondent, v. SPECIAL SCHOOL DISTRICT # 1, Self Insured/ Sedgwick Claims Management Services, Relator.
    No. C5-02-1038.
    Supreme Court of Minnesota.
    Sept. 18, 2002.
    Hon. Gary M. Hall, Workers’ Compensation Judge.
    James C. Selmer, Marc M. Berg, James C. Selmer & Associates, Minneapolis, MN, for Relators.
    William H. Getts, P.A., Minneapolis, MN,- for Respondents.
   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 May 28, 2002, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

RUSSELL A. ANDERSON Associate Justice.


author: PAUL H. ANDERSON Associate Justice.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Steven Ford SORONOW, an Attorney at Law of the State of Minnesota.
    No. C6-01-972.
    Supreme Court of Minnesota.
    Sept. 18, 2002.
   ORDER

Following a referee hearing on a petition for disciplinary action and supplementary petitions for disciplinary action filed by the Director of the Office of Lawyers Professional Responsibility against respondent Steven Ford Soronow, the referee found that respondent had failed to cooperate with the Director’s investigation, failed to adequately communicate with clients, neglected client matters, failed to return client files and unearned fees, faded to pay a law-related debt, and committed a crime involving dishonesty in violation of Minn. R. Prof. Conduct 1.8, 1.4(a), 1.16(d), 8.1(a)(3), 8.4(b), (c) and (d) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

After the referee issued his decision, the Director filed a third supplementary petition for disciplinary action in which the Director alleged that respondent had failed to cooperate with the Director’s investigation of additional complaints and had engaged in additional misconduct involving neglect, failure to communicate with clients, and failure to return client files and unearned retainers in violation of Minn. R. Prof. Conduct 1.3, 1.4(a), 1.16(d), 8.1(a)(3) and Rule 25, RLPR.

The parties have entered into a stipulation in which they waive oral argument and stipulate that the referee’s findings of fact and conclusions of law are conclusive on the petition for disciplinary action, supplementary petition for disciplinary action and second supplementary petition for disciplinary action. Respondent also waives his right to answer the third supplementary petition for disciplinary action and admits the allegations contained therein. The parties jointly recommend that:

a. Respondent be indefinitely suspended from the practice of law for at least six months,
b. Respondent be allowed to apply for reinstatement after 120 days, with the understanding that respondent may not be reinstated until after the minimum period of suspension of six months,
c. The reinstatement procedures of Rule 18(a)-(e), RLPR, not be waived,
d. As part of the required reinstatement hearing, respondent be required to establish through expert psychological or psychiatric evidence that he has undergone treatment such that he is psychologically fit to resume the practice of law, and
e. Respondent comply with the requirements of Rule 26, RLPR, and pay $900 in costs pursuant to Rule 24, RLPR.

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

IT IS HEREBY ORDERED that respondent Steven F. Soronow is indefinitely suspended from the practice of law for a minimum of six months subject to the agreed-upon terms and conditions set forth above. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

PAUL H. ANDERSON Associate Justice.