Elimination of median cut not a taking

by Gary Taylor

Buck’s, Inc. v. City of Omaha
(Nebraska Court of Appeals, November 25, 2014)

Buck’s, Inc. owns and operates a gas station on the northwest corner of the intersection of 144th Street and Stony Brook Boulevard in Omaha. In August 2009, the City eliminated a cut in the median on Stony Brook Boulevard that gave eastbound traffic access to the gas station. No access points to the gas station were eliminated. The city engineer testified that the decision to eliminate the median cut was made to address safety concerns associated with the anticipated increased traffic generated by a new grocery store in the area. The city’s right-of-way manager testified that the City did not acquire any property or property interest from Buck’s for this project, and affirmed that Buck’s had three entrances to its property prior to the project, and continued to have three entrances after project completion.

Buck’s nevertheless brought an inverse condemnation action against the City. A board of appraisers was appointed, and Buck’s was awarded $30,000. Both parties appealed to the district court, which entered summary judgment for the City. Buck’s appealed.

The Nebraska Court of Appeals noted that the right of an owner of property that abuts a street or highway to have ingress and egress by way of the street is a property right in the nature of an easement, and the owner cannot be deprived of such right without due process of law and compensation for loss. The court also noted, however, that “as to damages claimed by reason of a change in the flow of traffic by placing medians in the center of a street, [the damages] result from the exercise of the police power and are noncompensable as being incidental to the doing of a lawful act.” After the median cut was closed, Buck’s still had access to Stony Brook Boulevard. “The fact that left-hand turns are now restricted is but an inconvenience shared with the general public.” The Court of Appeals affirmed the district court.

Court of Appeals finds another “nearest feasible route”

by Gary Taylor

Edward A. Green and Melvin J. Green, v. Wilderness Ridge, LLC
(Iowa Court of Appeals, May 11, 2011)

This case is a continuation of two previously reported cases, an Iowa Supreme Court case decided January 8, 2010,  which itself was an appeal of an Iowa Court of Appeals case decided May 29, 2009  (see the Court of Appeals case for a full account of the facts).  The 2010 Iowa Supreme Court case vacated the earlier Court of Appeals decision concerning the ability of the owner of a landlocked parcel to access that parcel over the land of another, using the “nearest feasible route to an existing public road.” as required under Iowa Code 6A.4(2).  The courts were essentially given two routes to choose from – a northern route and a southern route.  The Supreme Court found that the term “nearest feasible route” required a consideration of reasonableness, focusing on the impacts on both parties.  The Supreme Court remanded to the trial court, noting that it is incumbent on the courts to consider the value of the land to be condemned in determining the specific route for providing access.  

On remand, the district court condemned the northern route, relying on the Greens’ real estate experts who opined that the southern route would be costly and disruptive to the farming operation. Wilderness Ridge appealed, arguing the Greens’ evidence did not support the condemnation damages alleged. Giving due weight to the district court’s factual findings and considering both the ease of constructing the road and its harm to neighboring properties, the Court of Appeals in the present case agreed the northern approach is the “nearest feasible route.”
The Court relied on testimony from two farm realtors that fencing off the access road along the southern route would significantly reduce the value of the Greens’property by as much as $190,000. Other testimony substantiated that even if fencing was not required, would take a toll on their farm in other ways. Construction of the road itself will alter the crop field borders and point rows which will shrink the productive capacity of the land. A real estate broker estimated that the reduction in tillable acres alone from construction of the southern route would cost the Green brothers as much as $27,500 over the next twenty years. The evidence also suggested that building an access road along the southern route would change the drainage patterns of the adjacent farm fields.

The Court of Appeals affirmed the determination of the district court.

“Nearest feasible route” requires reasonable consideration of costs to both landowners

by Gary Taylor

Green v. Wilderness Ridge, L.L.C.
(Iowa Supreme Court, January 8, 2010)

The Iowa Supreme vacated an earlier Court of Appeals decision concerning the ability of the owner of a landlocked parcel to access that parcel over the land of another, using the “nearest feasible route to an existing public road.”  Readers can go to The BLUZ blog post on the Court of Appeals decision, which can be accessed here, for a review of the facts.   

Iowa Code 6A.4(2) gives the owner of a landlocked parcel the right to exercise eminent domain over the land of a neighbor if it is necessary to gain access to a public road.  The code provision lays out criteria for exercising that right that include locating the access “along a line which is the nearest feasible route to an existing public road”  In this suit, the owners of the servient estate (the land across which the easement would cross) argued that the route suggested by Wilderness Ridge (owner of the landlocked parcel) (1) did not lead to a public road, and (2) did not consider the costs to the servient estate for allowing that route.  The Court of Appeals determined that the route selected by Wilderness Ridge did lead to a public road and would pose fewer costs to Wilderness Ridge than the route offered by the owners of the servient estate, and for that reason allowed condemnation of the route preferred by Wilderness Ridge. 

The Iowa Supreme Court disagreed with the Court of Appeals’s finding that Dudley land was a public road for purposes of Iowa Code 6A.4.  While the road could theoretically be located by it’s designation on old plats, Dudley Lane has never physically existed.  The purpose of the statute is to provide access to landlocked parcels, and providing access to a public road that exists on paper only does not meet legislative intent. 

The Supreme Court also found that the term “nearest feasible route” required a consideration of reasonableness, focusing on the impacts on both parties.  Thus it was incumbent on the courts to consider the value of the land to be condemned in determining the specific route for providing access.

Considering these findings the Supreme Court remanded the case to district court for further fact finding related to the location of the nearest public road and the costs of acquiring a route thereto.

Court elaborates on showing needed to condemn access to landlocked parcel

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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