Iowa Court Affirms Township Established Adverse Possession of Cemetery

July 22, 2021 | Kitt Tovar Jensen

On July 21, 2021, the Iowa Court of Appeals determined that a Township had acquired ownership of a cemetery, as well as an access easement, through adverse possession.


Since the late 1800s, Poweshiek Township has sold plots in a local two-acre cemetery, paid for repairs, and maintained the site. The Township acquired an easement around the same time after local residents executed a “Right of Way Deed” granting use of a 20-feet wide lane “for all purposes incident and necessary to travel to and from the cemetery.”

Nearly 100 years later, in 1985, a farmer purchased 35-acres containing the cemetery. The farmer did not pay property taxes or assert ownership over the cemetery for many years. In 2016, he removed the fence around the cemetery to plant row crops “up to the area where graves were occupied.” In response, the Township petitioned to quiet title to the cemetery under the theory of adverse possession. It also asked the court to determine the boundary lines of the cemetery and grant a 20-foot easement to access the cemetery.

The district court granted the summary judgment request for quiet title. It held that the Township, through adverse possession, acquired title to the cemetery before the 2009 enactment of the Iowa Cemetery Act, which prohibits acquiring a cemetery through adverse possession. See Iowa Code § 523I.316. The court also found that the Township obtained a 16-foot easement by prescription or necessity to access the cemetery. The district court, concluding that the parties acquiesced to the removed fence as the boundary line, relied on an amended survey to determine the legal description of the cemetery. Both parties appealed.

Adverse Possession

The Court of Appeals affirmed that the Township established the open, exclusive, continuous, actual, and hostile elements of adverse possession. The Township had managed and maintained the cemetery since at least the late 1800s. In addition, the farmer behaved as if the Township was the owner. If he believed he was the true owner, the farmer would not have asked for permission to perform maintenance around the cemetery or to regrade the road. He would have paid taxes on the land covered by the cemetery.

The Township also satisfied the 10-year statute of limitations requirement. Even if the 10-year period began when the farmer purchased the land in 1985, the township would have gained ownership in 1995 at the latest. Lastly, the Township possessed the land under claim of right using it “openly and notoriously, as owners of similar lands use their property, to the exclusion of the true owner.” See I–80 Assocs., Inc. v. Chi., Rock Island & Pac. R.R. Co., 224 N.W.2d 8, 11 (Iowa 1974)

The farmer alleged that, nevertheless, the Iowa Cemetery Act barred the Township’s adverse possession claim. Unconvinced that Iowa Code § 523I.316(7) applies to the government, the court held that the Township acquired title long before the law’s enactment in 2009. As such, it did not determine whether the Act applies to government, but found that the district court did not err in quieting title to the cemetery.  

Easement by Necessity

Next, the court considered whether an easement by necessity existed. An easement by necessity is most often established when a landowner conveys a landlocked portion of his property to another making it necessary to provide an easement to access the interior property. As the district court noted, the proponent must show “(1) unity of title to the dominant and servient estates at some point prior to severance, (2) severance of title, and (3) necessity of the easement.”

The court sided with the Township, finding that all three elements were met. The farmer’s predecessor initially owned the cemetery and surrounding property. The title was severed after the Township adversely possessed the property for the requisite 10 years. Lastly, an easement was necessary for the public to access the cemetery.

Legal Description of Cemetery and Easement

Because the farmer removed the fence, the district court relied on amended Plat of Survey to determine the legal boundaries of the cemetery. The surveying firm utilized Google Earth photos containing the images of the fence line, as well as field measurements to recreate the original fence location.

The farmer submitted his own photographic evidence alleging that an additional grassy area was the true boundary line. However, that photo was taken after the farmer removed the fence and planted row crops on the unused portion inside the fence. While the surveyor’s method was unusual, the district court found that the method was supported by scientific reasoning and the conclusions supported by other evidence. The Court of Appeals affirmed that the fence had become the new boundary and found no reason to modify the boundary determination.

Lastly, the Township cross-appealed asserting that a 20-feet easement width, as specified in the original easement, was “critical” to allow two lanes for cars traveling opposite directions to pass as well as allow access for emergency vehicles. Conversely, the farmer claimed that the driveway had traditionally been seven feet in width.

Rejecting both arguments, the Court of Appeals noted the Township’s testimony that it mowed four and a half feet on either side of the alleged seven foot wide driveway. Therefore, it affirmed the district court’s ruling that the easement should be 16-feet wide.