Peel v. Burk

• Decision Date: 11 May 1972
• Docket Number: No. 54815,54815
• Citation: 197 N.W.2d 617
• Parties: Duane PEEL et al., Appellants, v. Charles BURK et al., Appellees.
• Court: Iowa Supreme Court

Page 617

197 N.W.2d 617

Duane PEEL et al., Appellants, v. Charles BURK et al., Appellees.

No. 54815.

Supreme Court of Iowa.

May 11, 1972.

Dailey, Dailey, Ruther & Bauer, Burlington, for appellants.

Napier, Napier & Wright, Fort Madison, for appellees.

RAWLINGS, Justice.

Defendants (proponents) initiated proceedings pursuant to The Code 1966, Chapter 465, for establishment of an open agricultural drainage ditch across lands of others. Plaintiffs (objectors) resisted. County board of supervisors (board) denied request and proponents appealed to district court. From order there entered overruling objectors' motion to dismiss, they take permissive appeal.

Errors here asserted are, trial court erred in failing to hold (1) chapter 465 permits deprivation of property without due process of law and therefore violates U.S.Const., amend. 14; (2) chapter 465 permits the taking of private property without just compensation being paid, thus violating the United States and Iowa Constitutions; (3) proponents failed to secure a permit from the Iowa Natural Resources Council as required by Code chapter 455A.

I. The legislature may enact any law desired providing it is not clearly prohibited by some provision of the federal or state constitutions. Every reasonable presumption must be called upon to support a legislative enactment. Furthermore, a challenging party must negate every reasonable basis upon which an act can be upheld. Also, if constitutionality of legislation is merely doubtful or fairly debatable the courts will not interfere. Neither is it for the judiciary to determine whether legislative acts are wise or unwise. Briefly stated these objectors assumed a heavy burden. See Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 771 (Iowa); Farrell v. State Board of Regents. 179 N.W.2d 533, 537--538 (Iowa); Abolt v. City of Fort Madison, 252 Iowa 626, 634, 108 N.W.2d 263.

II. As noted above objectors first take in position chapter 465 unconstitutionally deprives them of due process of the law in that it permits the taking of their property for private use.

An examination of the record discloses objectors never previously voiced any such challenge by their motion to dismiss, or otherwise.

In that regard this court has consistently held matters not raised in trial court, including constitutional questions, cannot be effectively asserted the first time on appeal. See State for Use of City of Dubuque v. Conrad, 191 N.W.2d 648, 649 (Iowa); Katko v. Briney, 183 N.W.2d 657, 662 (Iowa); Continental Ill. Nat. Bank and Trust Co. v. Security State Bank, 182 N.W.2d 116, 119 (Iowa).

And, courts will not ordinarily initiate an inquiry regarding constitutional issues. See Buda v. Fulton, 261 Iowa 981, 989, 157 N.W.2d 336.

We do not now entertain this belatedly asserted issue. Further discussion will serve no useful purpose.

III. Objectors also contend chapter 465, in effect, permits the taking of private property without just compensation in violation of U.S.Const., amends. 5 and 14, and Iowa Const., § 18, art. I.

In this regard they take the position, absence of specific provision in the act for payment of their (condemnees) trial preparation expenses, and fees for attorneys and expert witnesses, denies them the compensation to which they are constitutionally entitled.

Argument advanced in support of that stand is devoid of merit under our prior pronouncements to which we now adhere. See In re Legislative Districting of General Assembly, 193 N.W.2d 784, 791--792 (Iowa); City of Ottumwa v. Taylor, 251 Iowa 618, 621--626, 102 N.W.2d 376; Nichol v. Neighbour, 202 Iowa 406, 210 N.W. 281. See also Kirby Lumber Corporation v. State of Louisiana, 293 F.2d 82, 87 (5th Cir.); State v. McDonald, 88 Ariz. 1, 352 P.2d 343, 351; Frustuck v. City of Fairfax, 230 C.A.2d 412, 41 Cal.Rptr. 56, 59; 30 C.J.S. Eminent Domain §§ 381, 386; Annot. 18 A.L.R.2d 1225, 1229. See also 4A Nichols on Eminent Domain, § 14.249 (3), (4) (3rd ed.).

The issue here raised must be and is resolved adverse to objectors.

In event a change in the law regarding the instant subject matter be deemed advisable we believe it should and might well be effected by the general assembly, not by judicial fiat.

IV. Finally, in support of a reversal, objectors assert proponents fatally failed to show the securing of a Code chapter 455A permit from the Iowa Natural Resources Council for construction of the requested open agricultural drain.

We find no statute or rule which directs or infers a chapter 465 applicant must allege he has obtained a chapter 455A permit. See Code §§ 455A.18, 455A.25 455A.27.

Affirmed.

All Justices concur, except REYNOLDSON, J., who dissents, and McCORMICK, J., who takes no part.

REYNOLDSON, Justice (dissenting).

This case involves a private condemnation for defendants' proposed drainage ditch (35 feet wide, 11 feet deep) through properties of 14 landowners, the purpose being to drain defendants' land.

The genesis of chapter 465, The Code, purported to grant the condemnation right defendants seek to invoke, dates back almost 100 years. The then public need to put agricultural land in production and to drain marshes has given way to a public policy promoting the removal of land from production and the preservation of natural environment as ecologically sound.

I doubt the record before us discloses the project's Public purpose required to pass constitutional muster under the due process clause, Amendment 14, United States Constitution. A taking for a private use is a deprivation of property without due process of law. Riden v. Philadelphia, B. & W.R. Co., 182 Md. 336, 35 A.2d 99 (1943). Statutes which allow any private proprietor to drain his own land by constructing a ditch through the lands of others, paying just compensation, are unconstitutional according to all recognized standards and are usually so held. 26 Am.Jur.2d, Eminent Domain § 44, pp. 699--700. Similar provisions found in a state constitution have been declared void as violative of the due process clause of the federal constitution. In re Tuthill, 163 N.Y. 133, 57 N.E. 303 (1900).

But the majority holds this issue was never properly raised below by plaintiff landowners. While I entertain grave doubts regarding that conclusion, I move to an issue of equal importance--just compensation--which was unquestionably before trial court. If private property cannot be taken for a Public purpose without just compensation surely it cannot be taken for a Private purpose without full and adequate compensation. A further consideration of constitutional provisions is required to bring this issue into sharp focus.

The protection of the individual's right to property occupies a polestar position in both the federal and state constitutions. In the United States Constitution, Amendment 5, it is coupled with the fundamental right of due process, '* * * nor be deprived of life, liberty, or Property, without due process of law; Nor shall private property by taken for public use, without just compensation.' The due process protection of one's rights in property is also extended by Amendment 14 of the same constitution, '* * * nor shall any State deprive any person of life, liberty, or Property, without due process of law * * *.'

Of significance also is the following from the Iowa Constitution, article I (Bill of Rights):

'(Rights of Person), Section 1. All men * * * have certain inalienable rights--among which are * * * Acquiring, possessing and protecting property * * *.'

Grounded in the Iowa Constitution Bill of Rights, article I, Section 18 is the mandate that, 'Private property shall not be taken for public use without Just compensation first being made, * * *.' (Emphasis added in both above paragraphs)

In the second quarter of this century we have seen the constitutionally guaranteed right of persons to own and enjoy property invaded, first in an ear of conflict with burgeoning and popular public development, and more recently, in the misleading dichotomy of 'personal rights' vis-a-vis 'property rights.' Property, of course, has no 'rights'; people have rights in and to their property just as they enjoy other personal rights. This concept of a constitutionally guaranteed personal right to own property is one of the basic distinctions between our concept of government and the repressive philosophy of governments based on state ownership of all property.

Here, in division III of their opinion, my brothers tell plaintiffs the 'just compensation' for their privately condemned property must be reduced by the fees of their attorney and of their necessary and vital expert witnesses in the fields of engineering and real estate appraisal. Unlike some states, in Iowa (in chapter 465 as in all condemnation proceedings) we cast upon the condemnee the role of 'plaintiff' thus effectively throwing upon him the burden of pleading and proving his damages and the amount of the just compensation to which he is entitled. Section 465.12, The Code; rule 344(f)(5), Rules of Civil Procedure. Defendant condemnors' brief concedes plainti...