This appeal involves a dispute over a lease for a portion of the bed of the Mississippi River. An excursion boat operator brought this action against a municipality and a competing operator claiming damages for interference with its leasehold interest. The district court granted defendants’ motion for summary judgment dismissing plaintiffs claims of trespass, conspiracy, conversion, implied contract, intentional interference with contract, and defamation. We affirm.
I. Background and Factual Proceedings. Robert’s River Rides, Inc. (Roberts) operated passenger excursion boats on the Mississippi from Leach Park in Bettendorf, Iowa between May 1984 and December 1990. Leach Park abuts the river for approximately 1500 feet and includes a public boat ramp. Roberts leased 200 feet of the waterfront park for its docking and parking facilities from defendant city of Bettendorf (City). Their lease was on an oral, month-to-month basis until a written lease was executed in September 1988. Roberts’ lease with the City expired on December 30, 1990.
Before commencing riverboat excursions Roberts applied for and obtained necessary construction permits from several state and federal agencies. Roberts then began work in the riverbed and along the shore installing a sanitary sewer and water system and “deadman” anchoring devices. Later Roberts added two other barges and mooring devices to accommodate a ticket office and a gift shop at the docking facilities.
Pursuant to rules and regulations of the Iowa State Conservation Commission and its successor the Iowa Department of Natural Resources (collectively DNR), Roberts also obtained a lease to use a portion of the riverbed adjacent to Leach Park from the Iowa Executive Council (Council). The original DNR lease was issued in June 1984 for five years. It provided:
A parcel of river bed approximately 300 [feet] of frontage by 100 [feet] of depth at Mississippi River Mile 485.5. The area is for barges permanently moored adjacent to property owned by the City of Betten-dorf. The barges are used to accommodate excursion boats, a gift shop, and a ticket office, as shown on the attached plat.
Attached to the lease was a drawing of the area showing the City as the owner of the adjacent property. The lease further stated that it
shall not be construed to give the Tenant exclusive use of the land and water of the property above described, to the exclusion of the general public. The right to enter upon the property leased for any lawful purpose is hereby specifically reserved to the public of the state of Iowa.
In February 1989, Roberts requested and obtained a renewal on its riverbed lease. The second lease was issued in April and also covered a five-year period requiring annual rental payments. On the lease application Roberts indicated the use of the area would remain the same as the last five years and that no structures would be added or modified. The same area map was attached to the application. Roberts did not indicate on the application that its lease with the City expired at the end of 1990.
Following the 1989 authorization of excursion boat gambling in Iowa, see 1989 Iowa Acts ch. 67 (now codified at Iowa Code ch. 99F (1991)), Roberts and defendant Steamboat Development Corporation (Steamboat) submitted bids for the right to operate a riverboat casino from Leach Park. The City and the Riverbend Regional Authority selected Steamboat to operate riverboat gambling excursions and executed a lease for the river front area in February 1990. Initially Steamboat planned to use the Leach Park site until new docking facilities were constructed upstream. As a result of its agreement with Steamboat the City refused to renew Roberts’ lease for the river front property. The City instructed Roberts to remove its boat, barges, and improvements by March 10, 1991. Roberts removed its boat and the barges, but left the improvements in place.
Steamboat began construction on docking improvements for its riverboat operations in late March 1991. While attempting to sort out problems with Steamboat’s construction and operating permits, the City discovered that Roberts’ lease with DNR of the riverbed
In response, Michael Carrier, an administrator of the Parks, Recreation & Preserves Division of the DNR explained that Roberts’ permits “either need to be canceled or assigned to the City of Bettendorf.” Jager then requested that Roberts’ lease be terminated based on certain alleged misrepresentations Roberts made on its application for renewal concerning the status of the City’s property. Roberts disputes that there were any misrepresentations on the application form.
Carrier, on behalf of the DNR staff, recommended that the Natural Resource Commission (Commission) approve termination of the lease “based on the fact that Roberts no longer had control of the riparian frontage adjoining the leased riverbed and had removed its excursion boat and barge from the area.” Carrier also offered to refund the 1991 lease payment. The Commission approved the staffs recommendation over Roberts’ objection and threat of legal action. Before the matter was presented to the Council in September, the Attorney General’s office asked the City to indemnify the State from any liability resulting from termination of the lease. The City refused to make such an agreement. Ultimately the Council voted not to terminate Roberts’ lease.
Steamboat, however, continued to occupy the Leach Park docking area and operated riverboat gambling excursions from April 1991 to July 1992. During this period Roberts’ attorney contacted counsel for Steamboat and the City several times claiming they were trespassing on its leasehold property. At no time after March 1991 did Roberts attempt to dock its boats at Leach Park. On April 7, 1992, Roberts filed suit against Steamboat and the City. In its amended and substituted petition Roberts raised claims of trespass, conversion, conspiracy to trespass and to convert property, implied contract, interference with contract, and slander and libel. Defendants filed answers and the City counterclaimed against Roberts asserting conversion, material misrepresentation, and conspiracy. The City also filed a third-party petition against the State of Iowa (State) claiming an unconstitutional taking of its riparian rights.
Subsequently Steamboat and the City filed a motion for summary judgment on all claims. The State joined their motion and also moved for summary judgment on the City’s third-party claim. Roberts moved for a partial summary judgment on its claims of trespass, conspiracy, and defamation.
Following a hearing on the motions, the district court denied Roberts’ motion, granted summary judgment in favor of the defendants and overruled the State’s motion as moot. The court concluded that (1) the DNR lease did not grant Roberts exclusive use of the riverbed adjacent to the City’s park absent an ability to perform the conditions of the lease; (2) civil conspiracy is not actionable without a valid underlying claim; (3) Roberts failed to produce evidence to support its claims under theories of quasi-contract or interference with contract; and (4) defendants’ communications concerning Roberts were substantially true. Roberts appeals from the court’s ruling and judgment.
On appeal Roberts contends that summary judgment was improper because (1) the riverbed lease was not dependent on the river front lease; (2) the lease entitled Roberts to exclusive use of the area as against all other commercial ventures; (3) Roberts did not abandon the leasehold; (4) a trespasser is hable for benefits received from the wrongful occupation and use of property, and in any event fact issues remain concerning Roberts’ damages; (5) actual breach of the lease is not a required element of an interference claim; and (6) the City’s allegations of misrepresentation were not substantially true or privileged. We will discuss additional facts as necessary.
Our review of the court’s summary judgment ruiing is well settled.
See
Iowa R.Civ.P. 287(c). We first determine whether, under the entire record, any genuine issues of material fact exist. “If there are none, then we determine whether the trial court correctly decided that the moving party is entitled to judgment as a matter of law.”
Hoefer v. Wisconsin Educ. Ass’n Ins. Trust,
Although intentional torts “are generally poor candidates for summary judgment because of the subjective nature of motive and intent ..., the rule is not absolute_”
Id.
The party resisting summary judgment “must set forth specific facts constituting competent evidence to support a prima facie claim.”
Id.
at 339;
see also Jones v. Palmer Communications, Inc.,
III. Trespass and Conspiracy.
The overriding issue on appeal is whether the state-authorized lease granted Roberts an exclusive interest in the portion of the riverbed adjacent to Leach Park, absent access to the river front property. Roberts argues that it is entitled to damages because Steamboat, with the City’s consent, trespassed on its leasehold and profited from use of the docking facilities and improvements. Roberts claims that although it could not have loaded or unloaded passengers from shore after December 30, 1990, it could have docked its vessels above the riverbed adjacent to Leach Park. While Roberts admits it did not attempt to occupy the disputed area after removing its riverboat and barges, it continued to pay rent and to claim a property interest in the leased area. The district court determined that Roberts’ interpretation of the lease would be contrary to the purpose of the lease program, the express language of the authorizing statute and the lease conditions, and the City’s riparian rights.
To resolve this basic issue we must determine what rights Roberts acquired through the DNR “lease.” This, in turn, requires us first to determine what rights the State possessed as to the bed of the river.
A. Public Trust Doctrine.
In general, the State of Iowa exercises concurrent jurisdiction and authority with the federal government over navigable waters.
See
Iowa Code §§ 1.1, 1.2 (1991). The Mississippi River is of course a navigable river.
McManus v. Carmichael,
When Iowa was admitted to statehood, Congress declared that the state holds title to navigable waters in its sovereign capacity and in trust for all of its citizens.
Sorensen,
Owners of land adjacent to navigable waters possess certain common law rights, apart from those of the general public, which are incidents of riparian ownership.
See generally
78 Am.Jur.2d
Waters
§ 265, at 710 (1975); 65 C.J.S.
Navigable Waters
§ 61, at 212-13 (1966). We have recognized that a riparian owner’s right of access to the water is a property right.
Peck,
Under its trusteeship the State’s power to dispose of lands under navigable waters is closely circumscribed.
Sorensen,
Applications to lease riverbed areas are usually requested to accommodate facilities to load and unload commercial vessels or to improve access to the river from riparian land. Iowa Code section 111.25 provides in part:
The commission may recommend that the executive council lease property under the commission’s jurisdiction. All leases shall reserve to the public of the state the right to enter upon the property leased for any lawful purpose. The council may, if it approves the recommendation and the lease to be entered into is for five years or less, execute the lease in behalf of the state and commission.
Rental fees have been established for the commercial and industrial use of riverbed, lakebed, and waterfront land according to the size of the area. See 571 Iowa Admin.Code § 18.2 (1990).
B. Rights Under “Lease.”
Roberts’ initial lease of the riverbed adjacent to Leach Park was subject to a number of provisions and conditions. The lease was designated commercial and approved use of the described area for excursion boats, a gift shop, and a ticket office. The lease incorporated the language of the statute relating to the public trust doctrine. The DNR reserved the right to terminate the lease “upon any of the grounds specified in Section 648.1 of the Code of Iowa or for violation of any terms of this lease.” The renewed lease was identical.
Roberts argues that the lease granted it a superior right to possession over all other commercial ventures for that portion of the riverbed, during the entire lease term. Roberts further argues that the State had no basis to terminate the lease. We believe this issue can be resolved by determining whether the DNR “lease” is a true lease or whether it is in effect a license.
See generally Lee v. North Dakota Park Serv.,
It is often difficult to distinguish between a lease, an easement, and a license.
See
49 Am.Jur.2d
Landlord and Tenant
§ 5, at 45-47 (1970); 25 Am.Jur.2d
Easements and Licenses
§ 2, at 417-19, § 3, at 419, § 123, at 525-26 (1966). The title of an instrument is not controlling; the intent of the parties is the determining factor.
Paul v. Blakely,
A lease on the one hand conveys a present interest in real property for the period specified. W. Page Keeton,
Prosser and Keeton on the Law of Torts
§ 13, at 67 (5th ed. 1984) [hereinafter
Prosser &
Keeton]. Black’s Law Dictionary defines a lease as “[a] contract for exclusive possession of lands ... for terms of years ..., usually for a specified rent or compensation.” Black’s Law Dictionary 889 (6th ed. 1990);
see, e.g., State v. Mann,
On the other hand, a license in real property “is an authority or permission to do a particular act or series of acts upon the land of another.”
Resnick v. City of Ft. Madison,
Applying the foregoing principles of law to the instrument executed by the DNR and Roberts, we conclude the “lease” is in fact a license, and not a true lease. In accordance with Iowa Code sections 111.4 and 111.25 and the public trust doctrine the State has the authority to permit the use of the bed of a river for certain specified purposes, subject to the paramount right of navigation vested in the federal government for the benefit of all the public. Roberts’ lease permitted occupation of the riverbed to accommodate excursion boat operations from the City-owned park.
We believe the agreement in this context must be construed so as to limit Roberts’ commercial operations to those activities consistent with and for the specified purpose for which consent was given. To hold otherwise would yield a result which is contrary to the limitations imposed by the public trust doctrine and inconsistent with the purposes of the State lease program. Moreover, the State may not interfere with riparian rights unless the purpose has “a reasonable and substantial relationship to ... navigational or other public purpose to which the riparian owner’s right of access is made subservient by law.”
Lakeside Boating & Bathing,
The record does not bear out Roberts’ contentions of alternate uses for the riverbed area which would reasonably fall within these bounds. Further, we find that Roberts voluntarily relinquished its right of use when it vacated the premises. We therefore hold that Roberts did not acquire a property interest in the riverbed area under the lease agreement. For all practical purposes Roberts’ license to use the area terminated when the lease with the City expired.
Having determined that Roberts acquired only the rights of a licensee we turn now to the trespass claim.
C. Nature of Trespass.
The gist of a claim for trespass on land is the wrongful interference with one’s possessory rights in property.
Ryan v. City of Emmetsburg,
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land.... Restatement (Second) of Torts § 158 (1964).
For purposes of a trespass claim a person who is “in possession” of land is defined as one who
(a) is in occupancy of land with intent to control it, or
(b) has been but no longer is in occupancy of land with intent to control it, if, after he has ceased his occupancy without abandoning the land, no other person has obtained possession as stated in Clause (a), or
(c) has the right as against all persons to immediate occupancy of land, if no other person is in possession as stated in Clauses (a) and (b).
Id. § 157. Even if Roberts possessed a right to exclusive possession of the leased area as against Steamboat, it still must establish that at the time of the alleged interference it was in either actual or constructive possession of the property. Id.; see also Prosser & Keeton § 13, at 77-78; 75 Am.Jur.2d Trespass § 37, at 35-36 (1991); 87 C.J.S. Trespass § 22(a), at 972-73 (1954).
Actual possession or occupancy of land “may be shown by [public] acts of ownership or dominion.” 75 Am.Jur.2d
Trespass
§ 38, at 36-37;
see also
87 C.J.S.
Trespass
§ 22(b), at 973-74; Restatement (Second) of Torts § 157 cmt. a. Here Roberts vacated the leased property in March 1991 when it removed its riverboat and barges. After Roberts had vacated the area, Steamboat
Similarly, we conclude Roberts was not in constructive possession of the property. “Constructive possession is that possession which the law presumes the owner has, in the absence of evidence of exclusive possession in another_ If defendant is in actual possession, constructive possession is excluded.” 87 C.J.S.
Trespass
§ 22(c), at 974;
see also
Restatement (Second) of Torts § 157(b), (c);
Prosser & Keeton
§ 13, at 78. There is no presumption of possession on the part of a licensee because a license gives the licensee merely a right to use land “in the possession of another.”
See Resnick,
D. Conspiracy Claim.
Likewise, Roberts cannot maintain conspiracy to trespass claims against Steamboat and the City if its trespass claims fail. We have recognized that “[c]ivil conspiracy is not in itself actionable; rather it is the acts causing injury undertaken in furtherance of the conspiracy which give rise to the action.”
Basic Chemicals, Inc. v. Benson,
IV. Implied Contract.
Roberts argues that because Steamboat, with the City’s consent, wrongfully occupied and used the leased riverbed, the law implies a promise to pay Roberts the benefits each received from the riverboat gambling excursions. The court found that Roberts failed to set forth specific facts to support its claim that defendants were unjustly enriched at Roberts’ expense.
An implied contract claim invokes principles of restitution rather than contract.
See generally
1 Samuel Williston
Williston on Contracts
§ 1:6, at 25-28 (Richard A. Lord 4th ed. 1990); Restatement (Second) of Contracts § 4 cmt. b. “ ‘Restitution’ and ‘unjust enrichment’ are modern designations for the older doctrine of quasi contracts or contracts implied in law, sometimes called constructive contracts.”
Glass v. Minnesota Protective Life Ins. Co.,
Roberts contends it would be unjust to permit the defendants to retain the profits from Steamboat’s operations because a superior right to use that portion of the riverbed remained with Roberts. Because we have concluded that Roberts’ right to use the riverbed adjacent to Leach Park was conditioned upon permission to use the City’s property, it would be contrary to equity to imply a promise to pay any restitution here. Moreover, there is no evidence in the record, aside from the 1991 lease payment, that defendants were unjustly enriched in any manner.
See Irons,
V. Interference With Contract.
Roberts also argues that the City improperly interfered with the performance of its lease agreement with the State. Roberts claims that it was forced to spend considerable time, effort, and expense to prevent a breach of the lease. The court ruled that Roberts tendered no proof on two essential elements of an intentional interference claim, and in any event the City’s actions were not improper. We agree.
When the City attempted to obtain a riverbed lease for Steamboat’s operations, it
Intentional interference with a contract requires proof of the following elements:
(1) The existence of a valid contractual relation,
(2) Knowledge of the relationship,
(3) Intentional interference inducing or causing a breach or termination of the relationship, and
(4) Resultant damage to the party whose relation has been disrupted.
Irons,
The Restatement provides:
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him.
Id.
§ 766A (emphasis added);
see also Toney v. Casey’s General Stores, Inc.,
The key words in section 766A of the Restatement are “intentionally” and “improperly.”
Toney,
In determining whether the City’s interference with Roberts’ lease was “improper” we may consider the following factors:
(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(e)the interests of the other with which the actor’s conduct interferes,
(d) the interest sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.
Toney,
[I]t has been suggested that the real question is whether the actor’s conduct was fair and reasonable under the circumstances. Recognized standards of business ethics and business customs and practices are pertinent, and consideration is given toconcepts of fair play and whether the defendant’s interference is not “sanctioned by the ‘rules of the game.’ ”
Toney, 460 N.W.2d at 85B (quoting Restatement (Second) of Torts § 767 cmt. j). Applying these factors to the circumstances of the present case, we conclude the City’s actions were not improper.
Even assuming the City improperly interfered with Roberts’ contractual relationship, Roberts presented no evidence on the required element of damage.
Irons,
We believe that the language of section 766A which refers to liability for “causing [the] performance [of the contract] to be more expensive or burdensome” must be interpreted to encompass losses other than expenditures for attorney fees to enforce what is essentially an empty contractual right. Following section 766A the Restatement editors comment:
If the plaintiffs performance has intentionally been made more burdensome or more expensive by the actor, the cost that he incurs in order to obtain the performance by the third party has increased, and the net benefit from the third person’s performance has been correspondingly diminished. This Section covers that loss, too.
Restatement (Second) of Torts § 766A cmt. c. Thus, it appears that the losses to which this provision applies are limited to situations where the plaintiff performs a contractual obligation and “loses all or part of the profits that he [or she] would otherwise have obtained, or is subjected to a financial loss.” Id. § 766A cmt. g. Clearly this is not such a situation. During the period of Steamboat’s operations Roberts did not operate or attempt to operate riverboat excursions. We therefore hold, as a matter of law, that section 766A does not apply in the present case. Accordingly, summary judgment on this count was appropriate.
VI. Defamation.
Left for us to consider is Roberts’ contention that the court erred in granting summary judgment on its claims against the City for libel and slander. Specifically, Roberts asserts City Attorney Jager made oral and written statements accusing Roberts of misrepresenting its property interests on the 1989 lease renewal application. The court concluded defendants had established the complete defense of “substantial truth.”
See Behr v. Meredith Corp.,
“The gist of an action for libel or slander is the publication of written or oral statements which tend to injure a person’s reputation and good name.”
Lara v. Thomas,
A qualified or conditional privilege encompasses communications
made in good faith on any subject matter in which the person communicating has an interest, or in reference to which that person has a right or duty, if made to a person having a corresponding interest or duty in a manner and under circumstances fairly warranted by the occasion.
Lara,
The statements at issue asserted that the City believed Roberts had made material misrepresentations on the application form concerning its rights to the City’s property in order to obtain a renewed lease from the State. The City suggested that such representations should be grounds for termination of the riverbed lease. Roberts strongly argues that it made no statements which can be construed as misrepresentations and that in February 1989 it believed the City would renew its river front lease by the end of 1990.
Under the circumstances we conclude the City Attorney’s statements were privileged “unless shown to have been made with actual malice.”
Knudsen,
VII. Disposition.
For the reasons set forth we hold the district court correctly resolved all claims raised in Robert’s petition by entry of summary judgment for defendants.
AFFIRMED.