Finnegan v. Dickson
| Decision Date | 28 January 2015 |
| Docket Number | No. 14–0143.,14–0143. |
| Citation | 862 N.W.2d 414 (Table) |
| Parties | Daniel H. FINNEGAN and Julie A. Finnegan, Plaintiffs–Appellants, v. Lee DICKSON and Carl Borrett, Defendants–Appellees. |
| Court | Iowa Court of Appeals |
D. Flint Drake and Samuel M. Degree of Drake Law Firm, P.C., Dubuque, for appellants.
Kathleen Neylan of Neylan Law Office, Elkader, for appellees.
Considered by VOGEL, P.J., MILLER, S.J., and MAHAN, S.J.*
The evidence shows defendants do not have an existing route between their property and a public road. Therefore, they could properly proceed with an action pursuant to Iowa Code section 6A.4(2) (2013). Their proposed access route does not meet the statutory requirements of section 6A.4(2)(b), however, because it was not located on a division, subdivision, or forty line and was not along a route established for ten years or more. We reverse the decision of the district court and remand for further proceedings.
In 1962 Lee Dickson and Carl Borrett purchased a parcel of land (hereinafter the Dickson property) in rural Clayton County from Roy and Lola Smith. The Dickson property does not have access onto a public road. The nearest road is Yellowstone Road, a county road that runs north and south and is to the west of the Dickson property. Access to Yellowstone Road from the Dickson property is only possible by traversing the property of someone else.
Through the years Dickson and Borrett used the property only occasionally, usually for the removal of logs or hunting. At times they entered their property near the northwest corner by means of a private road on the Smiths' property that connected to Yellowstone Road. At other times they entered their property near the southwest corner and used a farm path through property owned by John and Anita Finnegan, also connecting to Yellowstone Road.
After Roy Smith died in 1991, a gate was placed across the road that ran through the Smith property. The portion of the Smith property that contains the private road was purchased by James Hankes and Jane Thien (hereinafter the Hankes property), and the private road has been referred to as Hankes Road. Hankes and Thien built a cabin on the property and improved the road to the point where their cabin is situated. The portion of the road between their cabin and the Dickson property has not been maintained. Daniel and Julie Finnegan (Finnegans) purchased the property previously owned by John and Anita Finnegan, including the area where the farm path was located. Dickson and Borrett approached the Finnegans about obtaining an easement across their land but were unsuccessful.
Dickson and Borrett hired a surveyor, Roger Mohn, who drew a map placing a proposed access route to the Dickson property through the Finnegans' property. The proposed access road was placed neither on Hankes Road nor the farm path, but at a point between the two. The proposed access road, which was forty feet wide, bisected one of the Finnegans' farm fields. A construction engineer, Chad Lansing, signed an affidavit stating the proposed road would provide very good access to the Dickson property because it had a relatively flat slope, required minimal tree removal, and would cost less to construct and maintain than if the road was constructed along the boundary line between the Finnegan property and their neighbors to the south. Lansing gave an estimate the proposed access road would cost $5000 to construct.
In February 2013, Dickson and Borrett initiated proceedings seeking to condemn the area shown on the survey map. See Iowa Code § 6A.4(2). Based on their application, the chief judge of the judicial district appointed a condemnation commission to appraise damages. See id. § 6B.4. The commission viewed the land and assessed damages to the Finnegans of $9500. No appeal was taken of the appraisement of damages. See State ex rel. Iowa State Highway Comm'n v. Read, 228 N.W.2d 199, 203 (Iowa 1975) ().
The Finnegans filed an action seeking a permanent injunction of the condemnation proceedings. See Thompson v. City of Osage, 421 N.W.2d 529, 531 (Iowa 1988) (). The Finnegans claimed the proposed access road was not permitted by section 6A.4(2) because it was not adjacent to a division, subdivision, or forty line. They also claimed there was an existing access route from the Dickson property over Hankes Road.
After a hearing, the district court issued a decision on January 13, 2014. The district court found the proposed access road was located on a division line. The court found it was not feasible or practical to place the proposed access road on the forty line because that route was much longer and steeper. The court also determined there was not an adequate alternate route to the Dickson property using Hankes Road because Dickson and Borrett did not have an easement to use that road. The Finnegans now appeal the decision of the district court.
An action for injunctive relief is an equitable proceeding, and therefore, our review is de novo. City of Okoboji v. Parks, 830 N.W.2d 300, 304 (Iowa 2013). We give weight to the district court's findings of fact, especially when considering the credibility of witnesses, but are not bound by them. Id. The party seeking an injunction has the burden of proof to show by a preponderance of evidence that the condemnor was not authorized under the statute to condemn the property owner's land as a public way. Owens v. Brownlie, 610 N.W.2d 860, 866 (Iowa 2000).
This appeal involves not only our de novo review of an action for injunctive relief, however, but also our review of the included or subsumed issue of the district court's interpretation and application of a statute, parts of Iowa Code section 6A.4(2). Our review of the latter is for correction of errors at law. See, e.g ., Kragnes v. City of Des Moines, 810 N.W.2d 492, 498 (Iowa 2012) ; State v. Tong, 805 N.W.2d 599, 601 (Iowa 2011).
Iowa Code section 6A.4 provides:
In the statute, “the legislature has conferred a narrow power of eminent domain upon private citizens in Iowa.” Green v. Wilderness Ridge, L.L.C., 777 N.W.2d 699, 702 (Iowa 2010). The statute gives the owner of land without access to an existing public road the ability to institute proceedings to secure a route over other land. Owens, 610 N.W.2d at 865. This is because, “[i]t is socially desirable to make land locked property usable by providing a means of ingress and egress.” Id. at 866.
The Finnegans claim Dickson and Borrett have an existing route using Hankes Road, which they assert was used to travel to and from the Dickson property for almost thirty years, from 1962 when Dickson and Borrett purchased the property until 1991 when a gate was placed on Hankes Road. They presented photographic evidence to show Hankes Road was adequate for travel between Yellowstone Road and the cabin owned by Hankes and Thien. They assert it would be easier to improve the existing pathway over the short distance between the Dickson property and Hankes Road than to build a new road, in a new location, through the Finnegan property.
A party may not condemn the land of another if the party already has a public or private way to an existing public road. Iowa Code § 6A.4(2) ; Anderson v. Lee, 191 Iowa 248, 182 N.W. 380, 381 (Iowa 1921). “The statute must be construed to mean that one who has reasonable ingress and egress from his land, over a private or public way, cannot avail himself of the statute and condemn a public way over the land of another.” Strawberry Point Dist. Fair Soc'y v. Ball, 189 Iowa 605, 177 N.W. 697, 699 (Iowa 1920). This right-of-way, however, must be vested and not subject to the will of another. Id. at 698. The supreme court has stated:
[T]he statute evidently does not contemplate that the owner who claims to have no way to his land shall be compelled, before inviting the aid of the statute, to try one or more lawsuits for the purpose of finding out whether he has a way or not. The statute, in our judgment, should be construed to mean that, unless a party has a way, either public or private, which is unobstructed and unquestioned, he may institute proceedings under the statute.
Carter v. Barkley, 137 Iowa 510, 115 N.W. 21, 22–23 (Iowa 1908). Additionally, an existing route must be reasonably sufficient for its purpose. Anderson, 182 N.W. at 381.
On our de novo review, we conclude the Finnegans have not shown by a preponderance of the evidence that Dickson and Borrett have an unobstructed and unquestioned right to use Hankes Road. There has been a gate across the road restricting access since 1991. Hankes testified he had planted some trees around the road so a person could not travel between Hankes Road and the Dickson property. Hankes stated he preferred Dickson and Borrett not have access to their property using Hankes Road. The evidence shows Dickson and Borrett do not have an existing route between their property and Yellowstone Road. Therefore, they may properly proceed with an action pursuant to section 6A.4(2).
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