Roger Tiemessen v. Alliance Pipeline (Iowa) L.P. and Alliance Pipeline, Inc. ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1727
Filed January 27, 2016
ROGER TIEMESSEN,
Plaintiff-Appellant,
vs.
ALLIANCE PIPELINE (IOWA) L.P.
and ALLIANCE PIPELINE, INC.
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Chickasaw County, Richard D.
Stochl, Judge.
Roger Tiemessen appeals from the district court’s entry of summary
judgment in favor of Alliance Pipeline. REVERSED AND REMANDED.
Nathanial W. Schwickerath of Schwickerath, P.C., New Hampton, for
appellant.
Johannes H. Moorlach of Whitfield & Eddy, PLC, Des Moines, and
Nicole M. Moen and Haley L. Waller Pitts of Frederickson & Byron, P.A.,
Minneapolis, Minnesota, for appellees.
Heard by Danilson, C.J., and Mullins and McDonald, JJ.
2
DANILSON, Chief Judge.
Roger Tiemessen appeals from the district court’s entry of summary
judgment in favor of Alliance1 on his breach-of-contract claim. We reverse and
remand, concluding Tiemessen has raised a genuine issue of material fact.
I. Background Facts and Proceedings.
The following facts are not in dispute. Tiemessen’s parents, Raymond
and Alice Tiemessen, own the farmland at issue in this lawsuit—tracts 133, 134,
and 134A. Tiemessen has rented the land from his parents for many years. He
pays “annual farm cash rent to [his parents] at the rate of $100.00 per acre.”
Although Tiemessen and his parents had a written lease, at some point, it has
been lost.
On February 9, 1999, Raymond and Alice Tiemessen entered into an
easement and right-of-way agreement with Alliance. The easement provides that
Alliance will “have all privileges necessary or convenient for the full use of the
rights herein granted.” It also provides that Alliance “agrees to pay for damages
to crops, pasture, fences, drainage tile, structures, and timber which may arise
from the laying, constructing, maintaining, operating, repairing, replacing or
removing of the said pipeline.” In addition, the easement provides that Alliance
will construct and operate the pipeline consistent with an Agricultural Impact
Mitigation Agreement (AIMA) between Alliance, the Iowa Attorney General’s
Office, and the Iowa Department of Agriculture. The AIMA provides that Alliance
“shall reasonably compensate Landowners and/or Tenants for damages, losses
1
For our convenience, we use Alliance to refer to both defendants—Alliance Pipeline
(Iowa) L.P. and Alliance Pipeline, Inc.
3
or inconvenience caused by [Alliance] . . . associated with construction,
installation, operation, maintenance and existence of the pipeline,” including “loss
of crops, pasture, timber, trees, produce, livestock, fences, drain tiles, irrigation
systems or equipment.”
In exchange for the easement, Alliance paid Raymond and Alice
Tiemessen $26,232 (the easement payment), which represents $21,438 for a
permanent right-of-way over 7.94 acres; $3899 for temporary work space over
7.22 acres; and $875 for additional temporary work space over 1.62 acres.
Alliance also paid Raymond and Alice Tiemessen $117,662 for damages
“listed on the Advance Damages Computation Form attached hereto as
Appendix A” (the restoration payment), which included $20,160 for corn crop loss
on 16.8 acres for two years; $8132 for land restoration on 16.8 acres; $4620 for
rock removal on 16.8 acres; $2520 for dust abatement on 16.8 acres; $9780 for
inconvenience of production due to realignment of pipeline; $7450 for livestock
relocation; and $65,000 for drain tiling. In connection with the restoration
payment, Raymond and Alice Tiemessen executed a release, agreeing they
accepted the restoration payment:
[I]n full payment of settlement, in advance, for all damages listed on
the Advance Damages Computation Form attached hereto as
Appendix A. In consideration of said advance payment, [Raymond
and Alice Tiemessen] do hereby release and forever discharge
[Alliance] from any and all causes of action, suits, debts, claims,
expenses, general damages, interest, costs and demands
whatsoever, at law and in equity, against [Alliance] which [they]
ever had, now have, or which [they], [their] insurers, heirs,
executors, administrators, successors or assigns hereafter can,
shall, or may have in the future relating to the damage items listed
in Appendix A, arising out of or in connection with, resulting or
alleged to have resulted from, construction or surveying, over,
under or on the following lands . . . .
4
In addition, Raymond and Alice Tiemessen agreed: (1) to waive “the procedures
for determining damages set forth in section 19 of the [AIMA]” and (2) that
Alliance’s obligations under the AIMA with respect to the damages listed in in
Appendix A were waived and/or satisfied.
Alliance installed the pipeline on tracts 133, 134, and 134A in 1999 and
completed restoration activities on those tracts in 2000. Since completing
restoration activities, the pipeline and the tracts farmed by Tiemessen have
remained undisturbed by Alliance. Alliance has not conducted any affirmative
activities on the tracts and has not entered the tracts.
Since the pipeline’s construction, Tiemessen has continued to farm his
parents’ land. At Tiemessen’s request, in 2010, 2011, and 2012, Alliance sent a
certified agronomist to the parcels rented by Tiemessen to collect data regarding
the yield differentials between the easement area and the non-easement area of
the parcels. Historically, Alliance has collected yield data regarding on and off
easement areas as part of a larger program run by Alliance to maintain
landowner relationships. As part of that program, and to foster goodwill, Alliance
voluntarily offered to pay Tiemessen the value of the yield differences, based on
the data collected by the certified agronomist. This program ended in 2012.
Starting in 2010, Tiemessen rejected Alliance’s voluntary offers and
instead demanded payments for “crop losses.”
Roger Tiemessen filed this action on July 12, 2013, seeking damages as a
“third party beneficiary“ of the easement for Alliance’s “failure to pay crop losses
as required by the easement.”
5
Alliance filed a motion for summary judgment, asserting (1) Tiemessen
had not suffered “damage to crops” under the easement, (2) Tiemessen lacked
standing to assert claims for soil productivity, and (3) the landlord had previously
released any claims for soil productivity. In response, Tiemessen stated he was
not making a claim related to soil productivity; rather, his claim is “for damages to
his crops occasioned by the operation of the pipeline pursuant to the easement
and by the operation and existence of the pipeline pursuant to the mitigation
agreement that Alliance executed with the State of Iowa.” He argued, “The
operation of the pipeline causes damage to his crops each year and he is entitled
pursuant to the easement to make a claim for that damage.”
On September 16, 2014, the district court issued a ruling, concluding:
Roger claims his yield from crops grown in the easement
area is less than yield from crops grown outside of that area. He
does not allege that Alliance performed any affirmative act that
damaged his growing crops. Therefore, his claim is not one of crop
damage but rather one of injury to the land where his crops are
growing. Iowa courts distinguish between the two. In Grell v.
Lumsden, 220 N.W. 123, 125 (Iowa 1928), the court discussed the
difference between direct damage to items growing upon land and
damage to the land itself. In this case, Roger is making no claim
that Alliance performed any activity that damaged his crops. He is
simply claiming that the easement area is not as productive. His
claim is clearly one of damage to the land itself and not one of
damage to a specific crop.
It is undisputed that Roger is a tenant on his parents’ land.
He does not own the ground he claims is faulty in its productivity. If
he has any dispute with his ability to grow crops in the easement
area, his dispute is with the landlord and not Alliance. He is free to
negotiate a lower rental rate with the landlord if he finds the
easement area defective. He has no direct cause of action against
Alliance.
Because the court finds that Roger’s claim must fail due to
lack of standing to sue Alliance under the easement, the court need
not address the other issues raised in Defendant’s motion for
summary judgment.
6
Tiemessen appeals.
II. Scope and Standard of Review.
We review summary judgment rulings for correction of errors at law.
Baker v. City of Iowa City, 867 N.W.2d 44, 51 (Iowa 2015). Summary judgment
is appropriate when “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Iowa R. Civ.
P. 1.981(3). “The moving party has the burden of showing the nonexistence of a
material fact.” Hlubek v. Pelecky, 701 N.W.2d 93, 95 (Iowa 2005).
An issue of fact is “material” only when the dispute involves facts
which might affect the outcome of the suit, given the applicable
governing law. An issue is “genuine” if the evidence in the record is
such that a reasonable jury could return a verdict for the non-
moving party. We view the evidence in the light most favorable to
the nonmoving party, who is entitled to every legitimate inference
that we may draw from the record.
Nelson v. Lindaman, 867 N.W.2d 1, 6-7 (Iowa 2015) (citations omitted).
III. Discussion.
General easement principles. “‘An easement is a liberty, privilege, or
advantage in land without profit, existing distinct from ownership.’” Keokuk
Junction Ry. Co. v. IES Indus., Inc., 618 N.W.2d 352, 355 (Iowa 2000) (quoting
Hawk v. Rice, 325 N.W.2d 97, 98 (Iowa 1982)). “Easements may be created in
one of three ways: (1) express written grant; (2) prescription; or (3) implication.”
Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001). “While there are different
methods of creating easements, the easements created do not differ.” McKeon
v. Brammer, 29 N.W.2d 518, 522 (Iowa 1947).
“An easement is an interest which one person has in the land of
another. Its most important characteristic is that its burdens fall
upon the possessor of the land with respect to which it constitutes
7
an interest regardless of the circumstances under which it was
created or under which he entered into possession. This
characteristic is expressed in the statement that the land in which
an easement exists constitutes a servient tenement. Since an
interest consists of one or more legal relations and legal relations
exist only between persons, such a statement must be deemed
metaphorical. It does, however, emphasize the fact that the
subjection of a possessor of land to an easement in his land is
based upon his possession rather than upon his participation in the
creation of the easement or his succession in interest to another
who, in the first instance, created it.” Restatement Property § 450.
“Because the identity of the possessor of land is not material in
determining his liability to an easement, a language technique has
developed in which the land itself is described as owing the service
to which the owner of the easement is entitled and as being itself
subject to the easement. Such a description is, of course,
figurative. It is, nevertheless, helpful as a reminder of the close
association of the burden with the possession, and in emphasizing
that the burden rests upon the possessor. This burden is not a
normal incident of possession because it is not found to exist
without proof of a separate creation. Yet, when proved to have
been created, it rests upon the possessor of the land subject to it as
possessor and so becomes incidental to his possession.”
Restatement Property § 455.
Id. at 524.
“Once a valid easement has been created and the servient landowner
justly compensated, the continued use of the easement must not place a greater
burden on the servient estate than was contemplated at the time of formation.”
Keokuk Junction, 618 N.W.2d at 355.
Express easement. The easement here is for a perpetual right-of-way for
Alliance’s natural gas pipeline—constructed and installed in a manner consistent
with the AIMA—and provides that Alliance will “have all privileges necessary or
convenient for the full use of the rights herein granted.” It also provides that
Alliance “agrees to pay for damages to crops, pasture, fences, drainage tile,
8
structures, and timber which may arise from the laying, constructing, maintaining,
operating, repairing, replacing or removing of the said pipeline.”
Tiemessen contends he has sufficient stake in the easement to obtain
judicial resolution. He argues the district court’s characterization of his claims is
faulty and his claims “relate only to damage to his crop as referred to in the
easement caused by the operation of the Defendants’ pipeline.” He maintains he
has raised a material issue of fact because:
Plaintiff’s expert, Don Stille, a crop adjuster with more than
fifteen years of experience provided an affidavit in which he states:
“I have noticed in my observation of the soil on these tracts that the
soil quality is similar both on and off the right of way, but that there
is a noticeable difference in the crop grown off and on the right of
way.” Mr. Stille opines that the “variation in the crop is attributable
primarily to the existence and operation of the pipeline through Mr.
Tiemessen’s leasehold, which generates heat in the ground. This
heat causes the ground to thaw early and drain faster in the spring
and causes evaporation throughout the year, causing damage to
Mr. Tiemessen’s crops.” Roger Tiemessen confirmed that the
ground in the right of way area thaws at a different rate than the
surrounding ground.
In addition, Tiemessen argues the course of dealings between him and Alliance
indicates that [Alliance] w[as] of the understanding, as was
[Tiemessen], that [Tiemessen] would continue to receive payments
for damages to his crops caused by the operation and existence of
the pipeline as [Alliance] annually attempted to resolve these
claims, and more importantly, when they could not be resolved
admitted to liability but not the damages amount when [Tiemessen]
had previously filed suit against them.
In response, Alliance does not challenge Tiemessen’s standing as a
tenant. However, it argues, first, that the district court properly concluded
Tiemessen’s claim was not one of damages to crops, but rather injury to the land.
Alliance also maintains any claim of injury to the land was released by Raymond
and Alice Tiemessen, who “were already paid to restore the land after the
9
pipeline’s construction.”2 Further, Alliance argues Tiemessen failed to provide
any admissible evidence upon which he could rely to resist the motion for
summary judgment; his petition “contains no reference to the heat allegations,”
his discovery responses fail to provide support for this theory, and no expert was
identified in connection with a claim alleging yield differentials on and off the
easement area. Finally, Alliance contends its voluntary payments in prior years
do not foreclose its ability to contest Tiemessen’s claim now.
We first note that Tiemessen is not seeking damages for crop damage
previously paid by Alliance to Raymond and Alice Tiemessen. At the time the
easement agreement was executed, crop damages were paid for only two years,
and the agreement provides that Alliance agreed to pay for crop damages that
may arise in the future “from laying, constructing, maintaining, operating,
repairing, replacing or removing” the pipeline.
Specifically, the language upon which Tiemessen relies for this action is
that Alliance “agrees to pay for damages to crops . . . which may arise from
the . . . operating . . . of the said pipeline.”3 (Emphasis added.) The district court
rejected Tiemessen’s interpretation of the easement. We must determine
whether the district court’s interpretation was in error.
2
Alliance and the district court state Tiemessen lacks standing to assert a claim of
decreased soil productivity as his remedy lies in the rental paid. While Tiemessen may
have the ability to negotiate a lower rent on the land subject to the easement, we do not
believe that avenue necessarily negates this contract claim.
3
Though not referenced in the petition, in response to the summary judgment motion,
Tiemessen also noted language of the AIMA that Alliance “shall reasonably compensate
Landowners and/or Tenants for damages, losses or inconvenience caused by [Alliance]
which occurred on or off the Pipeline Right-of-Way associated with construction,
installation, operation, maintenance and existence of the Pipeline,” including “loss of
crops.” (Emphasis added.)
10
“‘Interpretation of a contract is a legal issue unless the interpretation of the
contract depends on extrinsic evidence.’” Alta Vista Props. L.L.C. v. Mauer
Vision Ctr., P.C., 855 N.W.2d 722, 726 (Iowa 2014) (quoting Pillsbury Co. v.
Wells Dairy, Inc., 752 N.W.2d 430, 435 (Iowa 2008); see also Hartig Drug Co. v.
Hartig, 602 N.W.2d 794, 797 (Iowa 1999) (“[W]hen no relevant extrinsic evidence
exists, the resolution of any ambiguity in a written contract is a matter of law for
the court.”).
We apply ordinary contract principles to determine the meaning and legal
effect of the easement. See Alta Vista, 855 N.W.2d at 727. Generally, contracts
are interpreted based on the language within the four corners of the document.
Clinton Physical Therapy Servs., P.C. v. John Deere Health Care, Inc., 714
N.W.2d 603, 615 (Iowa 2006); see also Smidt v. Porter, 695 N.W.2d 9, 21 (Iowa
2005) (“It is a fundamental and well-settled rule that when a contract is not
ambiguous, we must simply interpret it as written.”). When words in a contract
are not defined, we give them their ordinary meanings. Hartig Drug Co. v. Hartig,
602 N.W.2d 794, 797 (Iowa 1999). “Moreover, particular words and phrases are
not interpreted in isolation. Instead, they are interpreted in a context in which
they are used. Furthermore, the words are given the meaning at the time the
contract was executed.” Id. at 798 (citations omitted).
The primary goal of contract interpretation is to determine the
parties’ intentions at the time they executed the contract.
Interpretation involves a two-step process. First, from the words
chosen, a court must determine what meanings are reasonably
possible. In doing so, the court determines whether a disputed
term is ambiguous. A term is not ambiguous merely because the
parties disagree about its meaning. A term is ambiguous if after all
pertinent rules of interpretation have been considered a genuine
11
uncertainty exists concerning which of two reasonable
interpretations is proper.
Walsh v. Nelson, 622 N.W.2d 499, 503 (Iowa 2001) (internal citations omitted).
Tiemessen argues the easement does not define “damages to crops,” but
that phrase is broad enough to cover the differential in crop production on and off
the easement property. The word “damage” means “physical harm that is done
to something.” http://www.merriam-webster.com/dictionary/damage (last visited
on December 29, 2015). The word “crop” means “a plant or plant product that is
grown by farmers.” http://www.merriam-webster.com/dictionary/crop (last visited
on December 29, 2015). Typically the phrase “damages to crops” would mean
the physical harm to plants grown on the land. This definition is consistent with
the discussion in Martin v. Jaekel, 188 N.W.2d 331, 336 (Iowa 1971), where the
court discusses the proper measure of damages for the “destruction” of a
growing crop.
The district court relied upon a prior supreme court opinion, noting that
case discussed the difference between direct damage to items growing upon
land and damage to the land itself. See Grell v. Lumsden, 220 N.W. 123, 125
(Iowa 1928). Grell dealt with an action to recover damages to real property. 220
N.W. at 124. Grell (the appellee) was the owner of a tract of land containing 112
acres. Id. Lumsden (the appellant) was the owner of all the coal underlying
16.75 acres of that tract. Id. Lumsden also had acquired “the right to cut and
use all the timber now standing on or above described land and lying directly
east of the mouth of said mine for any purposes connected with operation of the
12
mine.” Id. Lumsden appealed from a jury verdict and judgment for Grell. Id. at
123.
The Grell court discussed the difficulty in applying “rules of the
admeasurement of damages.” Id. at 125. The court stated:
Regard must always be had to the basic principle upon which
damages are allowed; namely, compensation for the injury
suffered.
Three distinct rules, pertinent to the questions before us, are
well settled in this state. If the thing destroyed or removed from
real property, although a part thereof, has a value which can be
accurately measured or ascertained without reference to the soil on
which it stands, the recovery is the value of the thing thus
destroyed or removed, and not the difference in the value of the
land.
Where the character of the injury is such that the premises
may be reasonably restored to as good condition as they were
before, the measure of recovery is the fair and reasonable cost and
expense of such restoration.
If the character of the injury is such that the property cannot
be repaired or restored to its former condition at a reasonable
expense, or is to the soil, or involves the destruction of trees having
a particular value as a part thereof, such as orchards or shade
trees, the measure of recovery is the difference between the value
of the real property immediately before and after the injury.
Id. (emphasis added and citations omitted). In Grell, the court ultimately
determined:
It is apparent from the testimony that the trees had a value
separate and distinct from the soil, which could be definitely and
accurately determined. No damage was occasioned to the soil by
the removal of the trees. This being true, we are of the opinion that
the measure of damages for the cutting and appropriation of the
trees was the fair and reasonable market value thereof, when
severed from the soil.
Id. at 126.
In another easement case involving damages to crops, a landowner
sought to recover damages to crop and timber occasioned by the gas company’s
13
replacement of a pipe in connection with its pipeline easement. Williams v.
Northern Nat. Gas Co., 136 F. Supp. 514, 515 (8th Cir. 1955). Northern had
agreed “to replace and/or rebuild to the satisfaction of Grantor or his
representative any and all damaged parts of all drainage systems that may be
damaged by construction of said pipe lines; and also to pay any and all damages
to premises, such as damage to trees, shrubs, and buildings—this in addition to
damage to crops and fences.” Id. at 516. The trial court determined that the
landowner was entitled to an amount that was the “result of the destruction of the
growing crops and timber.” Id. at 523.
In the case before us, the easement agreement states that Alliance
agrees to pay for “damages to crops.” However, there was no physical harm,
injury, or destruction of the plants on the easement.
Moreover, in the context of a taking claim, one court has noted:
Included as elements of compensation to an owner from the taking
of an underground pipeline easement are damage to fences, loss of
crops, impaired fertility or cost of restoration, inconvenience
incident to the use thereof, and any other loss reasonably
attributable to the taking of the easement, as well as compensation
for the estate taken, determined upon the usual principle of willing
seller and willing buyer dealing at arms-length, giving due
consideration to the reserved right of re-entry on the part of the
condemner.
Am. Louisiana Pipe Line Co. v. Kennerk, 144 N.E.2d 660, 665 (Ohio Ct. App.
1957) (emphasis added). The Ohio court recognized a differentiation of loss of
crops with impaired fertility.
The principles recited in Grell are also consistent with the finding in
Phillips Petroleum Co. v. Morris, 518 S.W.2d 444 (Tex. Ct. App. 1975). In Morris,
the plaintiffis sued the oil company that had formerly operated a well on land
14
covered by a lease. 518 S.W.2d at 445. After the oil company ceased
operations, “Morris found that this land did not produce crops as it had before its
use by Phillips and that some of the land would not bear crops at all.” Id. The
plaintiffs sued Phillips alleging that later planted crops did not mature and that
Phillips was contractually liable to plaintiffs for damages by reason of the
provision in the 1968 oil and gas lease which said: “The Lessee agrees to pay for
damages to crops or improvements caused by operations of Lessee.” Id. The
court held the oil company “was not liable to [the plaintiffs] for the loss of
anticipated future crops occasioned by damage to the soil as a result of the
activities in question pursuant to Phillips’ lease agreement with plaintiffs.” Id. at
446 (emphasis added).
What is not fully answered in these summary judgment proceedings is
whether Tiemessen’s reduced yields are due to reduced infertility of the soil or
heat radiating from the use of the pipelines causing drying in the nearby soil. We
also observe that unlike the cases we have noted in respect to easements, here
the AIMA specifically required Alliance to compensate tenants for damages or
“losses” to crops:
The Company shall reasonably compensate Landowners and/or
Tenants for damages, losses or inconvenience caused by the
Company which occurred on or off the Pipeline Right-of-Way
associated with the construction, installation, operation,
maintenance and existence of the Pipeline. These damages,
losses or inconveniences may include but are not limited to loss of
crops, pasture, timber, trees, produce, livestock, fences, drain tiles,
irrigation systems or equipment.
We conclude the term “crop damages” may encompass more than physical
damage to the standing crop. To interpret the easement as narrowly as
15
suggested by Alliance would allow it to escape its obligations under the AIMA,
which requires compensation for crop damages and losses.
As we have noted, we agree with the district court that there was no
physical injury to the crop similar to hail damage, wind damage, or crushing
damage by machine or man. However, Tiemessen’s petition sought recovery for
“crop losses.” In essence, he seeks damages for the continuing crop losses he
incurs for reduced yields due to the operation of the pipeline as provided within
his right under the AIMA.
Even if we disregard the AIMA in interpreting the easement, similar
damages have been permitted by other courts. Damages were permitted for
losses to an orange crop for several years due to cement dust from a nearby
cement plant in California Orange Co. v. Riverside Portland Cement Co., 195 P.
694, 696-97 (Cal. Dist. Ct. App. 1920). The cement dust interfered with the
vitality of the orange trees and reduced their production. California Orange, 195
P. at 696. Here, Tiemessen contends heat radiating from the use of the pipeline
dries the soil on and nearby the right-of-way, reducing his yields. See id.
In Merrill v. Penrod, 704 P.2d 950, 960 (Idaho Ct. App. 1985), the Idaho
court noted that “the measure of damages for injury to a growing crop is the
difference between the value of the crop actually raised upon the land and the
crop which would have been raised upon it under normal conditions for the year
in question.” This is the type of damage for loss of crops Tiemessen seeks, and
he has supported his claim for damages and his resistance to the motion by the
affidavit of an experienced crop adjustor.
16
Our supreme court has also recognized damages for crop losses where
the plants produced reduced yields due to corn borer infestation, a loss without
any physical act of crushing or destroying of the entire plant. See Renze
Hybrids, Inc. v. Shell Oil Co., 418 N.W.2d 634, 639 (Iowa 1988) (stating “[i]t is
clear that Renze sustained crop damage due to corn borer infestation,” as
alleged to have occurred because of a failure of an applied insecticide).
Tiemessen’s affidavit states the pipeline generates heat because snow
melts only in the pipeline right-of-way and another nearby pipeline does not have
the same effect. According to Tiemessen, the ground in the right-of-way also
thaws sooner in the spring and drains quicker than other land nearby.
Tiemessen’s crop adjuster also testified to the early thawing and draining of the
right-of-way. On this record, we would agree with Alliance that neither
Tiemessen nor the crop adjuster have the expertise to testify regarding soil
fertility or the chemical properties of soil. However, we believe an experienced
farmer and crop adjuster are competent to testify in respect to melting snow,
thawing of soil, and—to a limited extent—soil drainage. We also believe they are
competent to testify regarding the effect heat has on yields of crops even if they
are unable to scientifically explain the effect on the plant itself. Alliance admits
pipelines may cause increases in surface soil temperature. Alliance also
presented evidence that increased soil temperatures cause minimal or no impact
on crop yields. However, we are unable to make credibility findings in summary
judgment proceedings because such determinations are reserved for the fact
finder. See Frontier Leasing Corp. v. Links Eng’g, LLC, 781 N.W.2d 772, 776
(Iowa 2010).
17
We conclude Tiemessen has created a genuine issue of material fact by
circumstantial evidence as to whether the operation of the pipeline has caused
continuing crop losses recoverable as a third-party beneficiary to the easement
agreement.
REVERSED AND REMANDED.