Supervisors seek other surveyor for vacation of right-of-way in Newburg

Disagreements over a right-of-way vacation in Newburg, an unincorporated town in Jasper County, have led the majority of the board of supervisors to follow the warnings, opinion and direction of an outside surveyor rather than the surveyor the county engineer already paid for and whose guidance he recommends.

When it came to deciding whether this new surveyor — Craig Johnstone, of Grinnell — should handle the right-of-way vacation and transfer survey, Brandon Talsma was outvoted by Doug Cupples and Thad Nearmyer at their Nov. 18 meeting. Both Cupples and Nearmyer have sided with Johnstone.

The contract with Johnstone will only cost the county $1, and the survey itself will split a portion of Jasper County right-of-way into four parcels. Johnstone said he would perform the field survey, prepare a plat of survey, record it and then allow the board to disperse the parcels to the adjoining landowners.

In a follow-up interview with Newton News, Talsma explained that he voted no because he did not think it was the correct way to handle the right-of-way vacation. Talsma disagrees with Johnstone’s opinion, and he upholds the opinion of Jason Lowry, the surveyor the county had initially hired to do the job.

“I also think this is going to violate Iowa fence law, as well as dabbling with a violation of the adverse possession law in the state code,” Talsma said. “I do not think this is the right thing to do, nor do I think this is the right way to go about it. Further, I feel it sets a precedent which Jason Lowry even spoke to.”

Talsma was referring to comments made by Lowry at the Oct. 28 work session. Lowry noted a number of other people in his field were alarmed after reading the Newton News article detailing the objections from supervisors regarding the proposed vacation. Lowry said the county is in a tricky situation.

“The article that was published has already made national headlines in the survey world,” Lowry said. “That’s how unique — of what you guys are proposing — how unique that is. I got a newsletter yesterday referencing that article in a national surveyors publication … It’s out there already.”

Lowry explained the county has an alley platted along with the original town of Newburg, and the east line of it happens to be the east side of the original city limits. He also said the situation is unique because it also happens to have a 50-year-old fence line that has been maintained by citizens for decades.

“I’ve reached out to several professional colleagues on this and they all sided with what we have shown on this plat that that alley — if vacated — belongs to the City of Newburg or its residents that would have the claim to it,” Lowry said. “Not the east half of the quarter-quarter section.”

Lowry encouraged supervisors to look at the issue through a different lens. It is not a typical vacation for the county. He said they have to look at it as if they are the city council for Newburg, which they effectively are. However, he also noted the supervisors have the final say. But he wanted no part in it.

“I’m not going to sign off my license on what you’re asking,” Lowry said.

County Engineer Michael Frietsch warned supervisors that they risk adjoining property owners in other unincorporated territorities laying claim to land within unincorporated areas. He also said going against generally accepted precedent puts the county in a “very dangerous” position from a legal standpoint.

Cupples said Frietsch gave an “unfair example” and that he would not change his stance. Nearmyer said he will wait for the county attorney’s comment on the legality of it all, but he also sided with Cupples.

At the end of the Nov. 18 meeting, residents from Newburg informed supervisors of a petition they had created to oppose the survey from Johnstone. Talsma told Newton News the residents in the unincorporated town are asking the county to approve and uphold the survey from Lowry instead.

In the follow-up interview, Talsma said he believes the board of supervisors is “being manipulated” and has been given “bad advice.”

BACKGROUND INFORMATION

Newton News previously reported about the proposed vacation of right-of-way in Newburg and the disagreements among supervisors in October. Johnstone had argued the proposed vacation left out a property owner to the east of the right-of-way, and he wagered that they were entitled to a piece of it.

The proposed vacation covers two areas: a north-south alleyway and an old, approximately 80-foot extension of Newcomer Avenue. However, both alleys are indiscernible to the naked eye. Originally, the alleys belonged to Newburg, but after it became an unincorporated territory, the county assumed ownership.

Even though there is no sign of the land ever looking like a street or alleyway, the records say different. The county’s proposal to vacate the right-of-way would have given the land to the adjoining landowners. To make matters more complicated, the right-of-way borders on the previous city limits of Newburg.

On the other side of the right-of-way and old city limits, to the east, is a field. Johnstone argued the owners of that field are entitled to a portion of the right-of-ways. Talsma pointed to earlier vacations as precedent, upholding that those city limits still apply to some regard. Johnstone disagreed.

Frietsch told Johnstone the field was never part of the original city plat, and the county has already handled vacations in the same way. Johnstone objected to the county engineer’s rationale and claimed Newburg had planned to extend its city limits into what would be the field.

It may have been part of the community’s planning, Frietsch said, but it was never recorded as such and has no bearing as far as legal status goes.

Talsma maintained the county should have a consistent approach, and he worried about setting bad precedent. Cupples did not think the county was setting precedent for other standards since, no matter what, the county ends up splitting the property with other nearby landowners. Nearmyer agreed.

As a result, Cupples and Nearmyer directed the county engineer to split the alley to all adjoining landowners and not just the ones residing in the old city limits.