This is аn appeal from an equitable action involving the interpretation of easement language granting a right of ingress and egress.We affirm the trial court’s ruling that the eаsement includes the right to install utilities, reverse the inclusion of deposition costs in the court costs, and remand with instructions.
In 1981 Scott Richardson wished to purchase a piеce of real estate from Mr. Gerald Pasch. The land was approximately three acres in size. Mr. Richardson was unable to obtain financing to buy the entire tract, so his father, David Richardson, and stepmother, Sheila Richardson, agreed to purchase a one-acre piece of the real estate at the south
David and Sheila planned to build a home on the land they purchased from Pasch. Evidence at trial indicated David, Sheila, Scott, and Pasch discussed the need to provide an easement along the west edge of the real estate to ensure David and Sheila would have access and could install utilities to their property. When Pasch conveyed the land to the Riсhardsons it contained language providing David and Sheila with a “right for ingress and egress” over the land purchased by Scott.
Scott Richardson sold his land to Ricky E. Cline in 1988. In the fall of 1990 David and Sheila Richardson (hereinafter “Richard-sons”) had underground water, telephone, and electricity lines installed under the land subject to their easement. Cline concedes the land he purchased is subject to an access easement giving David and Sheila Richardson the right to go in and out of their property, but he argues their easement for ingress and egress does not include the right to install utilities.
In December 1991 Cline filed suit against the Richardsons. He alleged the installation of the utility lines constituted a use of the servient estate for an unauthorized purpose and was a trespass. Cline sought injunctive relief or, alternatively, damages for the alleged increase in value to the Richardsons’ property resulting from the installation of the utility lines.
A trial was held on June 21-22, 1993, and the trial court found “it was clearly in the intent of the parties at the time the easement was created that it be an open easement and that it be available for installation of utilities.” The court alternatively found even if the еasement were construed not to allow the installation of utilities, Cline had failed to prove a diminution in value to his property and would not be entitled to recovery. The trial court dismissed Cline’s petition and assessed court costs against him. .
Cline appeals. Our scope of review in this equity action is de novo. Iowa R.App.P. 4. Wе give weight to the fact findings of the trial court, especially when considering the credibility of the witnesses. Iowa R.App.P. 14(f)(7).
I. Parol Evidence
Cline contends the trial court erred in utilizing parol еvidence in reaching . its ruling. The parol evidence rule excludes extrinsic evidence which is offered solely for the purpose of varying, adding to, or subtracting from а written agreement.
Johnson v. Dodgen,
Cline’s counsel did not object at trial to any of the testimony from Scott, David and Sheila Richardson regarding their intentions as to the type and scope of easement they requested and obtained in 1981. However, since the parol evidence rule is a rule of substantive lаw the absence of an objection does not preclude us from disregarding the evidence if it in fact constitutes parol evidence.
See Johnson,
From our review of the rеcord we conclude the testimony regarding the parties’ intentions with respect to the easement was not parol evidence intended to vary, add to or subtract from a written agreement. The trial court was required to interpret what an “easement right for ingress and egress” was intended to provide and the testimony of parties involved in the creation of the easement was relevant to determining its meaning.
See, e.g., Tamm, Inc. v. Pildis,
Cline argues the trial court erred in construing the easement to include the right to install utilities. “An easement is a liberty, privilege, or advantage in land without profit, еxisting distinct from ownership.”
Hawk v. Rice,
Cline cites
C & M Property Management Co. v. Bluffs U.P. Employees Credit Union,
Focusing on the purpose of the Richard-sons’ easement and what was contemplated by the parties to its creation, we agree with the trial court their easement for ingress and egress includes the right to install utilities. In other jurisdictions similar access easements have been interpreted to include the right to install utilities.
See, e.g., Stott v. Dvorak,
No. CV92-0101097S,
We affirm the trial court’s interpretation of the easement. The Richardsons’ installation of utilities did not burden the servient estate to a greater extent than was contemplated at the time of the creation of the easement arid Cline is not entitled to any injunctive or monetary relief.
III. Court Costs
Cline contends thе clerk of court should not have included the cost of his deposition in computing court costs. The “necessary expenses of taking depositions” are amоng the costs taxable by the clerk. Iowa Code § 625.14 (1993). However, deposition costs are recoverable only to the extent they were incurred for depositions introduced into evidence in whole or in part at trial.
Woody v. Machin,
The Iowa Supreme Court has held the mere mention or “bootstrapping” of a deposition into a trial court reсord will not support taxing the cost of the deposition to the losing party. Id. at 152. The Richardsons claim the use of Cline’s deposition was not “bootstrapped” into the record but was used to impeach him. Their brief provides no specific examples or cites to the record to support this contention. We have reviеwed the trial transcript and find only one reference to Cline’s deposition. That reference arose during questioning related to Cline’s damages and the placement of gravel over the easement. The deposition was neither offered nor admitted into evidence. It was an abuse of discretion to tax the costs of the deposition to Cline and this matter is remanded to the district court for entry of an order instructing the clerk to delete that cost from the total costs of the action assessed against Cline.