Gravert v. Nebergall, No. 94-1153

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHARRIS
Citation539 N.W.2d 184
Decision Date25 October 1995
Docket NumberNo. 94-1153
PartiesWilliam and Terri GRAVERT, Appellees, v. Max and Ruth NEBERGALL, Appellants.

Page 184

539 N.W.2d 184
William and Terri GRAVERT, Appellees,
v.
Max and Ruth NEBERGALL, Appellants.
No. 94-1153.
Supreme Court of Iowa.
Oct. 25, 1995.

Page 185

Wythe Willey of Wythe Willey Law Office, Cedar Rapids, for appellant.

Steven B. Joy of Kudart-Joy Law Offices, Mechanicsville, for appellee.

Considered by HARRIS, P.J., and CARTER, NEUMAN, SNELL, and TERNUS, JJ.

HARRIS, Justice.

The trial court concluded that Iowa Code chapter 359A (1995) (fence viewing statute) is unconstitutional as applied to the plaintiffs in this case. The court also concluded the chapter was preempted by Iowa Code section 364.1 (home rule for cities). Because we disagree with these conclusions we reverse and remand.

This dispute is between adjoining Cedar County landowners. Plaintiffs Graverts own twelve acres of land, all located within the city limits of Tipton. Three acres are used as a residence and nine acres are leased out for crop farming. Tipton is located within the boundaries of Center Township in Cedar County. The Nebergalls own twenty-five acres of land located outside the city limits of Tipton but within Center Township. The land is used by them for the raising of miniature horses. A fence had formerly been located upon the property line between the parties, which is also the dividing line between the City of Tipton and rural Center Township. Tipton has ordinances restricting livestock and fencing within the city limits. These ordinances of course do not apply to land located in rural Center Township.

A controversy arose between the parties concerning the construction and maintenance of a partition fence, and, at the request of the Nebergalls, the Center Township trustees, sitting as fence viewers, held a hearing to resolve it. Pursuant to Iowa Code chapter 359A, the trustees entered an order requiring the Graverts to maintain the 344.1 feet of fencing running north-south, and the Nebergalls to maintain the 494.7 feet of fence running east-west. At first blush this would appear to be a routine order within the power of fence viewers when establishing a partition

Page 186

fence under the authority provided by Iowa Code chapter 359A.

Believing such authority was lacking in this controversy, however, the Graverts appealed the fence-viewers' decision to the district court. Both parties stipulated to the facts and both filed motions for summary judgment. The district court entered a ruling granting the Graverts' motion. Although the court found the fence-viewing statute was generally a valid exercise of police power where raising of livestock on adjoining property is authorized, it held the statute was unconstitutional as applied to the Graverts. The court reasoned:

[A] partition fence between abutting landowners, one rural and suited or used for the raising of livestock and the other city and prohibited from such use, confers no benefit to the latter and provides the former with a specific benefit unrelated to any legitimate governmental interest, particularly in light of the underlying obligation of the livestock raiser to protect the general public from his animals.

The court then concluded that, as applied to the Graverts, Code chapter 359A violates the Fifth and Fourteenth Amendments of the United States Constitution as well as sections 1 and 6 of article I of the Iowa Constitution. The court also ruled that, even if the statute was constitutional as applied to the Graverts, it is preempted by Iowa Code section 364.1 and cannot be enforced against them.

The Nebergalls appeal from this judgment. A case from a fence-viewer's decision is triable as a law action. Moore v. Short, 227 Iowa 380, 381, 288 N.W. 407, 408 (1939). We review the case for correction of errors of law. Iowa R.App.P. 4.

I. Statutes regulating the construction, apportionment, and maintenance of a partition or a division fence are enacted by the legislature in the exercise of its police powers. 35 Am.Jur.2d Fences § 10 (1967); 36A C.J.S. Fences § 8 (1961). Police power refers to the legislature's broad, inherent power to pass laws that promote the public health, safety, and welfare. State v. Hartog, 440 N.W.2d 852, 856 (Iowa 1989), cert. denied, 493 U.S. 1005, 110 S.Ct. 569, 107 L.Ed.2d 563 (1990). The exercise of a state's police power invokes consideration of eminent domain, due process, and equal protection. Laws enacted by the exercise of a state's police power are presumed to be constitutional provided there is some reasonable relation to the public welfare, and one challenging the validity of such laws can rebut this presumption only by negating every reasonable basis upon which the laws may be sustained. Hartog, 440 N.W.2d at 857. In other words the challenger must demonstrate that the law is unreasonable, arbitrary, and capricious. See Green v. Shama, 217 N.W.2d 547, 554 (Iowa 1974).

The courts accord legislatures a highly deferential standard of review, although of course the legislature must stay within certain parameters when exercising the state's police power. Hartog, 440 N.W.2d at 857. These parameters were explained this way in Lawton v. Steele:

[T]he state may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.

152 U.S. 133, 136-37, 14 S.Ct. 499, 501, 38 L.Ed. 385, 388 (1894) (citation omitted).

Iowa fencing statutes date from our earliest times, even predating the Iowa Code of 1851. Fence viewers were authorized by our territorial legislature. See Revised Statutes of the Territory of Iowa (1843), ch. 150. Our present fence-viewing code...

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19 practice notes
  • Meyer v. Herndon, Case No. 4:19-cv-00109-SMR-HCA
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • December 3, 2019
    ...constituted "an unreasonable exercise of the state's police power" in violation of article I, § 1 ); Gravert v. Nebergall , 539 N.W.2d 184, 186 (Iowa 1995) (considering whether a township order requiring fencing for livestock within city limits under Iowa Code chapter 359A violate......
  • Garrison v. New Fashion Pork LLP, 21-0652
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2022
    ...and the legislature could pass laws so long as they were not "unduly oppressive." Id. at 177 (quoting Gravert v. Nebergall , 539 N.W.2d 184, 186 (Iowa 1995) ). Essentially, pre- Gacke , we had applied rational basis review under article I, section 1. See, e.g. , Gravert , 539 N.W.......
  • State Preemption of Local Control Over Intensive Livestock Operations
    • United States
    • Environmental Law Reporter Nbr. 44-6, June 2014
    • June 1, 2014
    ...Iowa Code §335.2 (2103). 176. hompson v. Hancock County, 539 N.W.2d 181, 182 (Iowa 1995). 177. Iowa Code §172D.4 (2013). 178. hompson , 539 N.W.2d at 184. 179. hompson , 539 N.W.2d at 183. 180. Id. (quoting Farmegg Prods., Inc. v. Humboldt County, 190 N.W.2d 454, 457-58 (Iowa 1971)). 181. K......
  • Garrison v. New Fashion Pork LLP, 21-0652
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2022
    ...and the legislature could pass laws so long as they were not "unduly oppressive." Id. at 177 (quoting Gravert v. Nebergall, 539 N.W.2d 184, 186 (Iowa 1995)). Essentially, pre-Gacke, we had applied rational basis review under article I, section 1. See, e.g., Gravert, 539 N.W.2d at ......
  • Request a trial to view additional results
18 cases
  • Meyer v. Herndon, Case No. 4:19-cv-00109-SMR-HCA
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • December 3, 2019
    ...constituted "an unreasonable exercise of the state's police power" in violation of article I, § 1 ); Gravert v. Nebergall , 539 N.W.2d 184, 186 (Iowa 1995) (considering whether a township order requiring fencing for livestock within city limits under Iowa Code chapter 359A violate......
  • Garrison v. New Fashion Pork LLP, 21-0652
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2022
    ...and the legislature could pass laws so long as they were not "unduly oppressive." Id. at 177 (quoting Gravert v. Nebergall , 539 N.W.2d 184, 186 (Iowa 1995) ). Essentially, pre- Gacke , we had applied rational basis review under article I, section 1. See, e.g. , Gravert , 539 N.W.......
  • Garrison v. New Fashion Pork LLP, 21-0652
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2022
    ...and the legislature could pass laws so long as they were not "unduly oppressive." Id. at 177 (quoting Gravert v. Nebergall, 539 N.W.2d 184, 186 (Iowa 1995)). Essentially, pre-Gacke, we had applied rational basis review under article I, section 1. See, e.g., Gravert, 539 N.W.2d at ......
  • Home Builders Ass'n v. West Des Moines, No. 99-2025
    • United States
    • United States State Supreme Court of Iowa
    • May 8, 2002
    ...is an exercise of a city's police power. See Kelley v. Story County Sheriff, 611 N.W.2d 475, 481 (Iowa 2000); Gravert v. Nebergall, 539 N.W.2d 184, 186 (Iowa 1995). To summarize the scope of home rule authority in Iowa, a city has 644 N.W.2d 346 broad police powers, but it cannot impose tax......
  • Request a trial to view additional results
1 books & journal articles
  • State Preemption of Local Control Over Intensive Livestock Operations
    • United States
    • Environmental Law Reporter Nbr. 44-6, June 2014
    • June 1, 2014
    ...Iowa Code §335.2 (2103). 176. hompson v. Hancock County, 539 N.W.2d 181, 182 (Iowa 1995). 177. Iowa Code §172D.4 (2013). 178. hompson , 539 N.W.2d at 184. 179. hompson , 539 N.W.2d at 183. 180. Id. (quoting Farmegg Prods., Inc. v. Humboldt County, 190 N.W.2d 454, 457-58 (Iowa 1971)). 181. K......

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