*1 244
essary enjoyment use of his party favor of a from they whom property. This is one of the factors to be take an interest. An by necessity easement reaching ordinarily considered in may intent not any be by claimed ex- parties. agree cept parties trial court no the immediate to the transac- inconvenience, necessity, only Whitacre, real tion. Black See 206 Iowa 1084, 1086, 825, shown. (1928). N.W. Un-
der that rule defendant would fail here. While we hold to the liberal However, since appear the case does not necessity proven, that strict need not be we have been tried or submitted on that theo- also consistently have mere said inconven ry, pass we and content our- ience is not enough. Bray Hardy, holding selves with defendant has failed to supra, 799, at Iowa at 674. N.W.2d prove right by to an necessity easement already for the reasons set out in Division The evidence this case discloses 1133, I. See Swiler, Feilhaber v. 203 Iowa property fendant’s is bordered on sides two 418, 212 N.W. 419 (1927). by public Admittedly roads. it would expensive both provide inconvenient and say Since we defendant’s use III. case; access in either but mere inconven- beyond scope roads was of his expediency ience or sort of “ne- implied easement, it follows the trial court cessity” permits par- finding which in denying was correct his claim for dam grant ties must therefore have intended to ages. an such easement. judgment is affirmed. hold the trial as to finding court’s Affirmed. should extent defendant’s easement be affirmed. Perhaps we add an
II. should addition- by about claim ne-
al word of easement
cessity, although what have in Di- said I
vision is also decisive here. divi-
sion, however, speaking neces- we were sity only bearing factor on ease- one an Jerry EVERETT, Appellant, Joe by implication. ment BREWER, Lou V. Warden of the Iowa State doctrine of easement neces Penitentiary Madison, Appellee. at Fort sity separate, always recog we have Bray supra, nized it as Hardy, such. No. 2-56605. 674;
248 Iowa at at La Supreme Court of Iowa. Schuman, supra, Plant v. 197 Iowa at Feb. 282; 196 N.W. at Templin, Kane v. 24, 27, (1912). 138N.W. significant
One difference is that an implication
easement showing right intended such a to exist.
An by necessity easement involves no such
intent.
Perhaps important the most dis
tinction is that an implication easement
may be claimed either a grantor remote grantee remote right such existed *2 Rapids, Kinnamon, and Cedar W. Jerald Clinton,
Robert Bartels and Robert N. appellant. City, Gen., Turner, Atty. Richard Fred C. M. Haskins, Gen., Atty. Asst. and G. William Faches, appellee. County Atty., for MOORE, J., and
Heard before C. HARRIS, REYNOLDSON, RAWLINGS, McCORMICK, and JJ.
HARRIS, Justice.
Can a defendant who was unsuccessful arguing point prior appeal in a of law advantage adoption take of our later of his presented by argument when a different appellant thought ? The trial court agree. and we January defendant was con- larceny victed of a motor vehicle vio- 321.82, af- lation section The Code. We Everett, firmed conviction State (hereafter (Iowa 1968) ap- case). called the first In that Everett peal trial assigned as error the defendant he claimed court’s refusal to submit what oper- urged to be an included He offense. consent, ating a motor vehicle without proscribed 321.76, Code, section should have as included been submitted within the more serious offense of which he was convicted.
Our consideration of defendant’s conten- opinions tion was detailed in extensive dissenting majority filed both and rejected members court. We four deci- by a fendant’s contention five sion, holding the lesser violation was not an included offense.
In State v. again presented (Iowa 1973) were same another defendant’s contention Indictments and Informations § C.J.S. pellant. page page 1308, another there subscribed 1297 and § split Am.Jur.2d, decision to the contention defendant Indictments Informa- appeal, urged expressly had tions, 313, page his first section overruling our decision in the first Everett appeal argues In this we re- holding
case. Under our
*3
treated in
v. Habhab from our hold-
State
Hawkins,
question whether one of-
the
ing
deny.
in
This we
State v. Hawkins.
fense is
in
is
included
to be deter-
another
In
Habhab
reaffirmed
v.
State v.
we
State
mined
case
on a
case basis. We aban-
Hawkins
notion the facts
rejected
but
the
view, espoused
doned the
in the first Ever-
supply
for an
alone can
a
element
needed
case,
ett
that it
bar to
would be a
inclusion
included offense.
if
imagine ways
greater
one
the
could
of-
fense
be
could
committed without commit-
opinion
After
filed our
State v.
ting the lesser.
postcon-
brought
defendant
this
proceeding
viction
he seeks
which
a va-
Habhab,
In
v.
State
I. There was no denial also approve following: rationality in the ment of some nature process. We sure, con- singled To be class out. unsuc- person mere fact that a “The is not a demand that a stitutional demand involving in matter a court cessful per- necessarily apply equally all statute life, liberty, property does not show or require 'The does not sons. Constitution * * * proc- there has been violation of due things are different in fact which guaranty. ess of law Fourteenth though they were be treated law as ques- federal Amendment does raise a Tigner Texas, same.’ U.S. justice tion in case test of a every L.Ed. deci- of a former decision. The reversal Hence, legislation may A.L.R. prejudice sion to the of one impose special upon class- burdens defined departure by of the state the courts permissible es in order to achieve ends. *4 property a of established from rule re- Equal But the Protection does Clause prior guaran- decisions does not violate the that, quire defining subject a to in class op- hearing ty. there has been a full or If legislation, that drawn the distinctions are necessary portunity hearing, is no for there purpose for ‘some have relevance to the highest guaranty. violation of the (Au- which the the classification is made.’ state, overruling of a an earlier court thorities).” Yeager, U.S. Rinaldi v. 384 decision, for itself may make choice 308, 305, 1497, 1500, 16 L.Ed.2d 86 S.Ct. by it shall new rule declared whether the 577, Lunday Vogelmann, 580. also v. operate only apply also to prospectively or 1973). (Iowa 213 904 past transactions, is the alternative the new deci- subject same whether of is a basis rational believe there of sion is construction common law or the appellants accordance classifying give overruling A court its may statute. been previously has whether their claim bearing, an a retroactive earlier decision Defend- fully adjudicated. considered of val- thereby making protection invalid that which was equal ant’s claim he was denied id doing. in the of the laws is without merit. , his In addition to his claim constitu- III. a court ”Even an erroneous decision of rights defendant asks tional were violated on its does jurisdiction matters within apply us rule of to deprive rights his party unsuccessful of pronounce- supra, retroactively. Judicial have parties
under this where the guaranty years altered a vast ments recent have regular been course fully heard in of rules, of especially in the field variety ap- judicial The same rule proceedings. changes occa- criminal These have law. plies of- other or the errors of tribunals principles govern- application sioned is con- guaranty- ficers. So far as this ap- change should be whether a rule cerned, extent a decision to which De- plied retroactively prospectively. or contrary erroneous or it fact rule in Iowa argues “(t)he fendant normal previous im- said to be decisions has been decisions, un- and elsewhere is that court ** (Emphasis added) material. indicated, specifically are to less otherwise Law, section Am.Jur.2d, 16 Constitutional retroactively. (Citations). applied 553,pages 955-956. cas- applied rule been in criminal This has 257 Johnson, es well. Thus in State Neither can we hold defendant II. (1965) equal protection was the laws. denied retroactively applied United (the) court Equal requires Supreme “The Court’s decision Griffin Protection Clause States California, nondiscriminatory more of a 380 85 S.Ct. state law than U.S. application had been within it 14 106 to a case which the class establishes. L.Ed.2d subject changed
tried
the decision
It was
rule.
before
Griffin
* *
right.
not a constitutional or fundamental
case.
This is illustrated
two of our
agree
do not
normal rule either
holdings.
a defendant has been
Where
generous
here or elsewhere demands such
he
charged
major
convicted as
of a
offense
retroactivity.
rely
Both
cite and
on
offense
complain
cannot
because a lesser
States,
Desist v. United
U.S.
Miller,
improperly
submitted. State
opinion
S.Ct.
22 L.Ed.2d
That
re-
can
124 Iowa
334. Neither
N.W.
jected
application
a call for retroactive
defendant,
major
of a
after conviction
relating
electronic
evidence of
offense,
submit
complain of the failure to
eavesdropping.
following
test was
of
an included offense
another included
adopted:
greater
fense
than the one omitted was
Franklin, 163 N.W.2d
submitted. State v.
Walker,
“Ever since Linkletter v.
618, 629,
1731, 1737,
U.S.
14 L.
601, 608,
Ed.2d
established that ‘the Consti
position has a certain
While defendant’s
prohibits
tution neither
nor
retro
strength-
it is
attraction we do not believe
spective
expounding
effect’ for decisions
first
ened
reason of
unsuccessful
new
affecting
constitutional rules
criminal
peal. His case is no different from that of
trials, the
has
Court
viewed the retroactivi
any person
advan-
who would wish for the
ty
nonretroactivity
of such decisions as
*5
tage
relat-
change
of a later
in a court rule
a
* *
function
three
considerations.
change
to criminal
trials. Our
guiding
*.
‘The criteria
resolution
ad-
rule occurred after he had taken full
implicate
purpose
question
(a)
vantage
appellate rights
under the
standards,
(b)
to be served
the new
him
give
law as it then
To
existed.
extent of the reliance
law enforcement
advantage
trial
of another
under
standards,
authorities on the old
and (c)
changed
give
more than is
rule would
him
the effect on the' administration of justice
appropriate
constitution or
under either the
application
of a retroactive
of the new
”
imply
change
do not
cases. We
States,
Desist
su
standards.’
v. United
necessarily
applied retroactively
would
pra,
248-249,
at
U.S. at
89 S.Ct.
pertained
if it
to constitutional or
funda-
considered by the United States
concur, except
All
REYNOLD-
Justices
States,
Court in Tehan v. United
382 U.S.
SON, J.,
specially.
who concurs
It held
had become final REYNOLDSON, (concurring Justice specially). Upon application the three specified Walker, tests in Linkletter v. su I specially concur opinion. the court’s pra, apply see no reason State v. my special concurrence especially Habhab, retroactively. Hawkins noteWe