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Court elaborates on showing needed to condemn access to landlocked parcel

September 20th, 2009

by Gary Taylor

 

GREEN v. WILDERNESS RIDGE, L.L.C. (link to case here)

(Iowa Court of Appeals, May 29, 2009)

 

Cost of acquisition not a consideration in determining “nearest feasible route” to condemn for access to landlocked parcel.

 

In July 2006 Wilderness Ridge purchased seventy-five acres in rural Dubuque County. The land was mostly timber, and Wilderness Ridge planned to use it for recreational purposes and occasional logging. Wilderness Ridge purchased the land knowing it was landlocked, and subsequently instituted condemnation proceedings pursuant to Iowa Code section 6A.4(2), which allows the owner of a landlocked parcel to gain access to the land by condemning a public way across another lanowner’s parcel.  Wilderness Ridge sought to condemn a twenty-four-foot-wide dirt road access across property owned by the Greens, and another property owned by third-party defendants, William and Theresa Kivlahan.  In June 2007 the Greens filed an action arguing the route proposed by Wilderness Ridge was not the nearest feasible route to an existing public road, as required under section 6A.4(2). In May 2008 the district court ruled in favor of Wildnerness Ridge. 

 

The Greens appealed, making three arguments.  First, they argued that the district court erred in ignoring the costs of acquisition of the land to be condemned in determining the nearest feasible route.  The Court of Appeals declined to adopt a standard in all private condemnation cases that the selection of the nearest feasible route include a consideration of the cost of acquiring the land sought to be condemned. The district court was correct to simply determine that Wilderness Ridge’s application for condemnation was legally sufficient.  It is then up to a compensation commission to appraise the damages. At that point, if the Greens disagree with the award made by the compensation commission, they may appeal the assessment to the district court.

 

Second, the Green’s asserted that the district court erred in concluding that Dudley Lane, a key part to the route favored by the Greens, was not an existing public road.  Although Dudley Lane is listed as a Dubuque County class B road and was platted and filed for record in 1919, the district court found no evidence that Dudley Lane has ever existed, and the Court of Appeals agreed. Both courts found persuasive the testimony of several witnesses that Dudley Lane had never been a travelable, drivable roadway, no records exist of Dubuque County maintaining it, and the terrain of the area is unsuitable for a roadway. 

 

Finally, the Greens took issue with the district court’s chosen route for the condemned road, arguing that the route favored by the Greens was a more feasible alternative.  The Court of Appeals disagreed, stating that the district court took into account the difference in length of the routes, terrain challenges, maintenance challenges, and cost of road development in determining the appropriate route for Wilderness Ridge to access its property. It concluded that significant evidence existed in the record showing that the Green’s preferred route would be much more difficult and costly to build and maintain than the route favored by Wilderness Ridge.   

 

Justice Mansfield dissented, arguing that when applying section 6A.4(2), courts are to select the “nearest feasible route” that meets certain other criteria, and that the word “feasible” incorporates consideration of the impact of the route on the servient estate.  Justice Mansfield argued that the Iowa Supreme Court’s decision in Owens v. Brownlie makes it “appropriate to also consider the value of the land sought to be condemned [for the access road].” The route affirmed by the Court of Appeals cuts through the middle of the Green’s 292-acre dairy farm, while the route favored by the Greens straddles the edge of that farm and goes through undeveloped land. There was substantial evidence that the route affirmed by the Court of Appeals will result in a reduction in value in the range of $180,000 to $190,000 reduction in value. In addition, the Greens will incur additional costs to install electricity and a well. 

 

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