Miller v. Warren County

Citation285 N.W.2d 190
Decision Date14 November 1979
Docket NumberNo. 63157,63157
PartiesArden MILLER, Appellant, v. WARREN COUNTY, Iowa; Warren County Board of Supervisors; Robert Dittmer; John Pray and George Hladkey, as Members of the Warren County, Iowa, Board of Supervisors, Appellees.
CourtUnited States State Supreme Court of Iowa

Keith E. Uhl of Scalise, Scism, Gentry, Brick & Brick, Des Moines, for appellant.

John W. Criswell, Warren County Atty., Indianola, for appellees.

Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, McCORMICK, and LARSON, JJ.

LARSON, Justice.

This plaintiff sought damages in the district court for the closing of a road adjacent to his property. The trial court sustained the county's special appearance on the basis that the plaintiff had failed to timely appeal from an order of the board of supervisors denying compensation. We reverse and remand with instructions to the district court to enter an order vacating the order of the board.

The defendant county, through its board of supervisors, proposed to close a secondary road adjoining land of Arden Miller, the plaintiff. Its authority to do so under section 306.10, The Code 1975, is not questioned. However, the sufficiency of the notice of the board's hearing is challenged by the plaintiff. He contends that the order of the board, insofar as it pertained to damages, was a nullity because he had not received notice that he had a right to claim damages or that this right would be lost if not raised prior to the hearing. He therefore urges that it was error for the district court to sustain the special appearance on the basis that he had failed to timely appeal from that order.

Section 306.12 provided for notice of a proposed road closing to be published at least twenty days prior to the hearing. It also required notice by certified mail on adjoining landowners and certain other parties. The form of notice was prescribed by section 306.13 as follows:

Said notice shall state the time and place of such hearing, the location of the particular road, or part thereof, or crossing, the vacation and closing of which is to be considered, and such other data as may be deemed pertinent.

The prescribed form did not require notice of the right to file objections or claims for damages.

Section 306.14 provided for objections and claims for damages:

At such hearing, the department, the board of supervisors, or the agency in control of affected state lands, as the case may be, and any interested person, may appear and object and be heard. Any person owning land abutting on a road which it is proposed to vacate and close, shall have the right to file, in writing, a claim for damages at any time on or before the date fixed for hearing.

The notice received by Miller was worded as follows:

ROAD NOTICE

TO WHOM IT MAY CONCERN:

Pursuant to the provisions of chapter 306.10 of the 1975 Code of Iowa, and upon Motion and Resolution of the Board of Supervisors of Warren County, Iowa, and the Landowners adjoining the following described road in Warren County, Iowa:

(Descriptions of several parcels of land, including that involved here, are set out.)

Are hereby notified that a hearing will be held the 16th day of December, 1975 at 10:00 a. m. in the Board of Supervisors' office in the Warren County Courthouse in Indianola, Iowa on the advisability of closing and vacating said road. You are hereby further notified that unless Objections Are filed on or before the above named date that said road will be hereby closed and vacated. (Emphasis added.)

No claim for damages was filed; however, Miller and others filed an objection to the proposed closing as follows:

To Whom It May Concern:

We the undersigned Object to the closing of the road as described.

(Legal description set out.)

1. The closing of this road would devaluate all adjoining property.

2. The County built a 66 ft. road, we can't understand why they would close it within one year using the taxpayers' money. (Emphasis in original.)

The objection bore sixteen signatures, including plaintiff's.

The board of supervisors met as scheduled, and the plaintiff and others appeared, objecting to the proposed closing. The board's resolution recited these facts concerning the hearing, as it pertained to Miller's land:

Arden Miller objected to the road closure because of convenience of access to the northeast five (5.0) acres of his property, and Joan Miller stated Arden Miller must pass through their new orchard for access to his property and this road would be the only access if the road is closed and he will not be able to use the orchard access in 4 to 5 years, and following considerable discussion a motion was made by Robert Dittmer, seconded by John F. Pray, to close the above described road. A roll call vote was requested.

The resolution is silent as to any discussion at the hearing concerning damages for Miller or any of the other parties objecting to the closing.

Under section 306.16, the board's order was final as to a party merely objecting to a closing. A claimant, however, could appeal the board's order as to damages under section 306.17 which provided:

Notwithstanding the terms of the Iowa administrative procedure Act, any claimant for damages may, by serving, within twenty days after the said final order has been issued, a written notice upon the agency which instituted and conducted such proceedings, appeal as to the amount of damages, to the district court of the county in which the land is located, in the manner and form prescribed in chapter 472 with reference to appeals from condemnation, and such proceedings shall thereafter likewise conform to the applicable provisions of said chapter.

Plaintiff did not file an appeal within the twenty-day period following the order of December 16, 1975. The defendant contends, and the district court ruled, that this was fatal to this action in district court. The plaintiff contends that because he was not adequately informed by the notice as to the nature of the hearing, i. e., that it was for the purpose of determining the amount of damages allowable as well as the advisability of closing the road, he was excused from complying with the time limitation.

Both parties, and the district court, focused upon Christensen v. Board of Supervisors, 251 Iowa 1259, 105 N.W.2d 102 (1960). In that case the plaintiffs filed a timely claim for damages and appeared at the hearing to object to the closing and to pursue their claim for damages. The board did not vote on the closure at the end of the hearing. Rather, they voted on it later and filed the closure order (denying damages) without notifying the claimants. The claimants did not discover this action until after the time for appeal had run. Under those circumstances this court held that application of the appeal time limitation could not provide grounds for a special appearance based upon lack of jurisdiction of the subject matter. That case did not involve an alleged defect in the notice of the board's hearing, and it is therefore not particularly helpful in resolving the issue of the board's jurisdiction in this case.

In the present case, the notice of the proposed hearing did not mention the necessity of filing a claim for damages prior to the hearing, nor even that allowance for damages would be an issue. The record shows no discussion of damages at the hearing, and the final order of the board makes no reference to any such claim by plaintiff or its denial by the board. The issue in this case, therefore, is not whether there are sufficient grounds for "excusing" a failure to appeal during the twenty-day period, as in Christensen, but whether the board's order of December 16, 1975, was a valid order which would commence the running of the appeal period.

A similar notice issue was presented in Witham v. Union County, 198 Iowa 359, 196 N.W. 605 (1924). The statute prescribing the form of notice for condemnation for highway purposes required that it advise the landowner, among other matters, that objections and claims for damages must be filed within ten days from service of the notice or be waived. Witham's notice included no mention of the need to file claims and objections. The court said that "(i)t may be conceded that the service of such notice, in and of itself, would not confer jurisdiction on the board of supervisors to acquire land for road...

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3 cases
  • Town of Randolph v. Estate of White
    • United States
    • Vermont Supreme Court
    • 28 de fevereiro de 1997
    ...has to be taken to challenge erroneous information that was basis for termination of advance retirement payments); Miller v. Warren County, 285 N.W.2d 190, 194 (Iowa 1979) (although plaintiff could have learned of rights by consulting code, notice did not alert him to do so; therefore, noti......
  • Stanfield v. Polk County, 91-951
    • United States
    • Iowa Supreme Court
    • 21 de outubro de 1992
    ...executing and delivering the lease and the sublease. To support its insufficiency of notice claim, plaintiffs cite Miller v. Warren County, 285 N.W.2d 190 (Iowa 1979). In Miller, a claim for damages for a road closure, we held that a notice was insufficient to vest jurisdiction in the count......
  • Estate of Lovell, Matter of, 83-420
    • United States
    • Iowa Court of Appeals
    • 27 de dezembro de 1983
    ...he received notice of the petition and a copy of it. 2 Baird's response to the petition was immediate. Baird cites Miller v. Warren County, 285 N.W.2d 190, 193 (Iowa 1979), which states "[a] fundamental notion of due process is notice of the pendency of the proceeding and an opportunity to ......

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