Owens v. Brownlie

• Decision Date: 26 April 2000
• Docket Number: No. 98-1133.,98-1133.
• Citation: 610 N.W.2d 860
• Parties: Dean OWENS, Appellant, v. John BROWNLIE and Donna Brownlie, Appellees.
• Court: Iowa Supreme Court

610 N.W.2d 860

Dean OWENS, Appellant, v. John BROWNLIE and Donna Brownlie, Appellees.

No. 98-1133.

Supreme Court of Iowa.

April 26, 2000.

Rehearing Denied May 31, 2000.¹

Morris L. Eckhart of Milroy, Eckhart and Thompson, Vinton, for appellant.

Ross Hauser of Shea Law Offices, Cedar Rapids, and Keith Mossman of Mossman and Mossman, L.L.P., Vinton, for appellees.

Considered en banc.

CADY, Justice.

This is an appeal from an order by the district court dismissing an action for declaratory judgment and injunctive relief filed in response to the condemnation of land. We affirm.

I. Background Facts and Proceedings.

Dean Owens is the brother of Donna Brownlie. Their family has owned a 200-acre farm in Benton County since 1928. It was originally owned by Dean and Donna's grandparents, and later by their parents. After the death of their father in 1967, the land continued to be owned by their mother and was farmed by John Brownlie. John is Donna's husband.

The land passed to Dean and Donna in 1995 following the death of their mother. Dean inherited the southern 100 acres while Donna inherited the northern 100 acres.

The 200-acre tract was bordered on the east by the Benton-Linn Road. A public road also bordered the property to the south. Farm land owned by third parties bordered the property to the west and the north. A creek, known as Dry Creek, runs diagonally across the tract from the northeast corner of the land to the western half of the southern border. Most of the northern tract inherited by Donna lies west of Dry Creek.

Contrary to its name, water runs through Dry Creek at various levels depending upon the time of the year and the amount of rainfall. The creek is generally seven to nine feet wide with water at a minimum level of three inches in the fall of the year. The water level is around eighteen inches in springtime. For the most part, the creek has steep banks. After a heavy rain, the creek can rise to levels in excess of five feet and spill over the banks. The creek normally rises over its banks several times each year.

Over the years, the Owens family gained access with their farm equipment to the land west of Dry Creek by three methods. One method was to enter from the public road running along the southern border. Another means was to cross over the neighbor's land to the north. The third method was to cross through a shallow area of the creek in the northern portion of the land where the banks of the creek slope.

Over time, the access point through the creek was discontinued. It was last used in 1967. A grove of trees subsequently grew in the area and the creek has started to produce steeper banks. Additionally, the crossing over the neighbor's land to the north was lost years ago. This land had been owned by Dean and Donna's uncle, who permitted the crossing. The land is now owned by a third person.

After the land was divided into north and south tracts, the Brownlies believe they did not have ingress or egress to their land west of Dry Creek. They instituted a condemnation proceeding seeking to acquire a public way over Owens' land for the purpose of ingress and egress. They alleged in their condemnation application that their property was land locked, and sought to condemn a 100-yard path along the western border of Owens' land to the public road running along the southern border of the land.

The Brownlies presented their application for condemnation to the chief judge of the sixth judicial district. This is the judicial district in which the property is located. The judge appointed a condemnation commission to assess the value of the strip of land sought to be condemned. Owens was notified of the time and date in which the commission would view his land to assess the damages.

The land was appraised by the commission at $2740. Owens subsequently filed a petition seeking a declaratory judgment that the Brownlies were not authorized to condemn the land. Owens also sought permanent and temporary injunctive relief. He claimed the Brownlies had reasonable access to the land west of Dry Creek by simply crossing through the creek. Prior to trial, Owens amended his petition to include allegations of fraud and illegality based upon deficiencies in the application for condemnation. He also claimed he was denied due process because of the lack of notice prior to the appointment of the condemnation commission.

Owens acknowledged at trial that the area of the creek formerly used as a crossing could not presently accommodate farm equipment. However, he believed the old creek crossing could be restored by removing the trees, grading the banks, and installing a rock or gravel bed. Owens indicated his father was able to transport all of his farm equipment over the area when it was used as a crossing prior to 1967. Owens also believed the Brownlies could install a large culvert or construct a bridge over the creek, but offered no evidence of the cost of such a project.

John Brownlie farmed the 200-acre tract for nearly thirty years prior to the time it was divided into north and south sections. He testified at trial that the creek has changed since the Owens family used it as a crossing. It now handles a greater volume of water due to increased tiling which runs into the creek from farms upstream. The creek bottom contains deep silt and loose sand, and the ground around the banks is frequently wet and swampy.

Brownlie also testified farming practices and machinery have changed dramatically since the Owens family used the creek as a crossing. The machinery is much bigger and heavier. Brownlie believed his planter in particular would be damaged by driving it through the creek, and grain trucks would be unable to traverse any crossing.

Brownlie further opined that the force of the water at certain times of the year would wash out a rock bed, and the depth of the water level at various times of the year would require an elaborate bridge or culvert system. He believed the cost of a bridge or culvert crossing would be more than the value of the land.

The district court denied the request for injunctive relief and found the Brownlies did not have reasonable access to their land west of Dry Creek and were entitled to condemn Owens' land to gain a public way. Owens appeals.

II. Scope of Review.

We review declaratory judgment actions according to the manner the case was tried in the district court. Smith v. Bertram, 603 N.W.2d 568, 570 (Iowa 1999). If tried in equity, as in this case, our review is de novo. Iowa R.App. P. 4; Western States Ins. Co. v. Continental Ins. Co., 602 N.W.2d 360, 362 (Iowa 1999). Our review of actions for injunctive relief is also de novo. See In re Luloff, 569 N.W.2d 118, 122 (Iowa 1997). Thus, we give weight to the findings of fact made by the trial court in this case, especially with respect to the credibility of witnesses, but are not bound by those findings. See id.

III. Eminent Domain.

Eminent domain is the power of a government to take private property for public use conditioned upon the payment of just compensation. Hinrichs v. Iowa State Highway Comm'n, 260 Iowa 1115, 1126, 152 N.W.2d 248, 255 (1967). It is recognized to be an inherent aspect of government, exercised through entities or individuals authorized by statute. Hardy v. Grant Township Trustees, 357 N.W.2d 623, 625 (Iowa 1984); see also Reter v. Davenport Ry., 243 Iowa 1112, 1118, 54 N.W.2d 863, 867 (1952). Common recipients of the power of eminent domain include counties, cities, public service entities, as well as the state. See Iowa Code §§ 6A.1, .4, .6. The power to condemn land in Iowa is also conferred upon those who own or lease land which has no public or private access. Id. § 6A.4(2). Thus, an owner of "land locked" property is permitted to institute condemnation proceedings to secure a public way over other land to permanently solve the inability to access the property. In re Luloff, 512 N.W.2d 267, 274 (Iowa 1994) (hereinafter "Luloff I").

An eminent domain action is recognized as a special proceeding. Richardson v. City of Centerville, 137 Iowa 253, 256, 114 N.W. 1071, 1072 (1908). It is a unique blend of administrative and legal procedures which are prescribed by statute. See Iowa Code ch. 6B; see also State v. Johann, 207 N.W.2d 21, 23 (Iowa 1973). Unlike a traditional adversary proceeding, an eminent domain action is initiated by the condemner without notice to the condemnee by claiming to be an entity authorized by the legislature to condemn land.² The only judicial action which occurs before the condemnation commission is assembled to assess the compensation for the taking is a determination by the chief judge of the judicial district in which the land is located that the application is legally sufficient and the applicant is empowered to condemn the land. Johann, 207 N.W.2d at 24. Following this threshold determination, a condemnation commission is selected to appraise the damages as a result of the taking. See Iowa Code § 6B.4. The condemnee is then given notice of the time the commission will view the land to assess the damages. Id. § 6B.8; see Thornberry v. State Bd. of Regents, 186 N.W.2d 154, 156 (Iowa 1971).

Once the award is made by the condemnation commission, either the condemner or condemnee may appeal the assessment to the district court. Iowa Code § 6B.18; Burnham v. City of West Des Moines, 568 N.W.2d 808, 810 (Iowa 1997). The general focus of the appeal, however, concerns the amount of damages. See State ex rel. Iowa State Highway Comm'n v. Read, 228 N.W.2d 199, 203 (Iowa 1975). Additionally, a condemnee may challenge the initiating action of the condemner by injunction, mandamus, and certiorari. Thompson v. City of Osage, 421 N.W.2d 529, 531 (Iowa 1988). These remedies give the condemnee a procedural vehicle to promptly challenge the propriety of the condemnation, including the issue whether the property sought to be condemned is necessary for public use. Id. at...