River Bend Farms, Inc. v. M & P Missouri River Levee Dist.
| Decision Date | 29 September 1982 |
| Docket Number | No. 67149,67149 |
| Citation | 324 N.W.2d 460 |
| Court | Iowa Supreme Court |
| Parties | RIVER BEND FARMS, INC., Appellant, v. M & P MISSOURI RIVER LEVEE DISTRICT: the Board of Supervisors of Pottawattamie County, Iowa, Namely: Wayne Rodenburg, Elliott Butler, Arlene Steege, Hubert Houser and Donald Smith, and the Board of Supervisors of Mills County, Iowa, Namely: Walter A. Marshall, Creighton Miller, and Virgil W. Curtis; acting for and on behalf of the M & P Missouri River Levee District, Appellees. |
Steven H. Krohn of Smith, Peterson, Beckman & Willson, Council Bluffs, for appellant.
Jay W. Longinaker and Gene Eaton of Eaton, Eaton & Longinaker, Sidney, for appellees.
Considered en banc.
Plaintiff River Bend Farms, Inc. (RBF), appeals from a district court order disallowing its application for attorney fees in a proceeding that condemned 20.62 acres of its land for levee district purposes. We reverse and remand with directions.
Defendant M & P Missouri River Levee District is an intercounty levee district including land in Mills and Pottawattamie Counties along the Missouri River. Defendant boards of supervisors of the two counties act as the joint board of the levee district. Levee districts are created and governed by Iowa Code chapter 455 if they are within one county and chapter 457 if in two or more counties. Section 457.28 makes the relevant provisions of chapter 455 applicable to intercounty districts. These two chapters prescribe the procedure for formation of a levee district, taking of necessary right of way, and for construction and operation of the levee improvement.
In this condemnation the levee district board awarded RBF $25,933 in damages. RBF appealed to the district court. On the morning of trial the board settled the appeal for $131,250. The settlement agreement provided that
[p]laintiff [RBF] will make application to the Court for allowance of its attorney's fees and other costs. This issue will be resolved by further proceedings before the Court.
RBF filed an extensively documented application for $15,000 in attorney fees. District court denied the application because the case did not go to trial and because the settlement agreement included no specific authorization for an award of attorney fees. Thus the court did not reach the issue of the amount of reasonable attorney fees incurred by RBF.
I. We cannot concur in the reasons assigned by district court for rejecting RBF's claim for attorney fees. In an early decision interpreting the predecessor to present Iowa Code section 472.33, this court held a trial was not a prerequisite for taxation of an owner's attorney fees. Heath v. Mason City & Fort Dodge R. Co., 94 N.W. 467 (Iowa 1903). In this appeal the district's brief concedes "that the allowability of Plaintiff's attorney's fees is not dependent upon whether the damages were determined by a District Court jury or arrived at by agreement of the parties in settlement prior to trial."
Although RBF suggests the settlement agreement, incorporated in an order, left only the amount of the attorney fees for court determination, we agree with the district that the "issue" referred to in the agreement was whether attorney fees were allowable, not the amount to be awarded. We therefore must address the issue whether the owner RBF may recover reasonable fees for the services of its attorneys in a district court appeal to secure just compensation for the taking of its property.
II. The district insists the issue before us is controlled by Iowa Code section 455.104, which provides that "[u]nless the result on the appeal is more favorable to the appellant than the action of the board, all the costs of the appeal shall be taxed to the appellant, but if more favorable, the cost shall be taxed to the appellees."
RBF contends the issue is controlled by a provision of the Iowa Code chapter entitled, "Procedure Under Power of Eminent Domain," section 472.33, which in relevant part provides:
The applicant shall also pay all costs occasioned by the appeal, including reasonable attorney fees to be taxed by the court, unless on the trial thereof the same or a less amount of damages is awarded than was allowed by the tribunal from which the appeal was taken.
It is true, of course, that ordinarily attorney fees were not recoverable as part of the costs at common law, and generally not allowable in absence of statute. Virginia Manor, Inc. v. City of Sioux City, 261 N.W.2d 510, 513 (Iowa 1978). But see Peel v. Burk, 197 N.W.2d 617, 620-22 (Iowa 1972) (Reynoldson, J., dissenting). This, however, does not mean that today statutes that do provide for attorney fees are to be construed strictly as in derogation of common law. Iowa Code section 4.2 states:
The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice.
See Pearson v. Robinson, 318 N.W.2d 188, 191 (Iowa 1982) (); Compiano v. Kuntz, 226 N.W.2d 245, 245 (Iowa 1975); Stotler v. Lutheran Social Service of Iowa, 209 N.W.2d 121, 124 (Iowa 1973).
Our Iowa Constitution identifies "acquiring, possessing and protecting property" as one of our inalienable rights. Iowa Const. art. I, § 1. In City of Des Moines v. Geller Glass & Upholstery, 319 N.W.2d 239, 241 (Iowa 1982), we identified Iowa Constitution article I, section 18 as the "basic law" governing the exercise of the eminent domain power, quoting its provision that "[p]rivate property shall not be taken for public use without just compensation first being made." We there said "Chapter 472 'Procedure Under Power of Eminent Domain,' governs the procedure to be followed in condemnation proceedings and helps to protect 'the citizen in the quiet and proper enjoyment of his property.' " Id. at 242 (quoting Virginia Manor, Inc. v. City of Sioux City, 261 N.W.2d at 516).
Where, as here, we implement such basic and vital constitutional rights, and seek to achieve the "justice" referred to in section 4.2, we should not strictly construe statutes that allow recovery of attorney fees merely to maintain the common-law rule. We believe the statutes here under scrutiny can be deployed fairly to provide complete justice to an owner whose property is being involuntarily taken, first by assuring that reimbursement of attorney fees does not turn on the happenstance of the public purpose for which the property was taken (e.g., levee, airport, highway, railroad); and second, by permitting him or her to receive its market value undiminished by expenses necessarily incurred to obtain a fair result.
In this case there is an available statute, Iowa Code section 472.33 (1979), that requires the condemnor to pay attorney fees as part of the costs, if we may properly construe it to apply.
We first look to section 472.1, which states the provisions of chapter 472 apply to "the condemnation of private property for works of internal improvement ... unless and except as otherwise provided by law." The legislature's intent that chapter 472 provisions apply in this condemnation is made plain by the fact it felt required to create an exception in one situation. Section 472.26 ("Dispossession of owner") provides:
This section shall not apply to condemnation proceedings for drainage or levee improvements, or for public school purposes.
(Emphasis added.) The general rule is that exception of a particular thing from the operation of a statute indicates that in the enacting legislature's opinion, the excepted matter would have been within the purview of the general provision, absent the exception. State v. Wanrow, 88 Wash.2d 221, 227-29, 559 P.2d 548, 552-53 (1977); see Iowa Farmers Purchasing Association, Inc. v. Huff, 260 N.W.2d 824, 827 (Iowa 1977); Kane v. City of Marion, 251 Iowa 1157, 1161-62, 104 N.W.2d 626, 629 (1960); 2A C. Sands, Sutherland Statutory Construction § 47.11 (4th ed. 1973). An exception, of course, is generally considered a limitation only upon the statutory matter which immediately precedes it. Loof v. Rural Mutual Casualty Insurance Co., 14 Wis.2d 512, 516, 111 N.W.2d 583, 586 (1961); 2A C. Sands, Sutherland Statutory Construction § 47.11 (4th ed. 1973). Thus the section 472.26 exception dictates the commonsense conclusion that the balance of chapter 472 "unless and except as otherwise provided by law" (section 472.1) applies to the situation before us.
Nor do we believe the legislature engrafted the section 472.23 exception because that was the only provision of chapter 472 that was not "otherwise provided by law." For example, the provisions of section 472.14 relating to allowances for personal property damaged, destroyed, or reduced in value, and to expenses for removing personal property, have constitutional roots and surely would be implicated in a condemnation for levee purposes. See Forst v. Sioux City, 209 N.W.2d 5, 7-8 (Iowa 1973); Wilkes v. Iowa State Highway Commission, 172 N.W.2d 790, 794-96 (Iowa 1969).
We find the same intent is manifest in the legislature's reference in section 472.33 () to the "tribunal" from which an appeal was taken. Prior procedural sections in chapter 472 refer to the "compensation commission" and "commissioners." There was no reason for the legislature to select and change to the broad term "tribunal" unless it intended a reference to other condemning bodies, including a levee district board. 1
This court adopted the view that chapter 472 applies in condemnations of property by levee and drainage districts in Harris v. Green Bay Levee and Drainage District No. 2, 246 Iowa 416, 418-19, 68 N.W.2d 69, 70 (1955), where it wrote:
Chapter 455, Iowa Code 1950 ... under which defendant levee and drainage district is...
To continue reading
Request your trial
-
Renda v. Iowa Civil Rights Comm'n
...normally indicates the matter excepted would have been included in the statute absent the exception. River Bend Farms, Inc. v. M & P Mo. River Levee Dist., 324 N.W.2d 460, 462 (Iowa 1982); see also 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 47:11, at 33......
-
Diehl v. Iowa Beer and Liquor Control Dept. Hearing Bd.
...matter would have been within the purview of the general provision, absent the exception. River Bend Farms, Inc. v. M. & P. Missouri River Levee Dist., 324 N.W.2d 460, 462 (Iowa 1982). Given this concern with direct credit, we think the third exception, that allowing for the use of "bona fi......
-
Caledonian Record Pub. Co. v. Walton
...excepted matter would have been within the purview of the general provision, absent the exception." River Bend Farms, Inc. v. M & P Mo. River Levee Dist., 324 N.W.2d 460, 462 (Iowa 1982). Under this general rule, the specific proviso that records "reflecting initial arrest of a person" are ......
-
Iowa Dept. of Transp. v. Soward
...Lehigh Clay Products, Ltd. v. Iowa Department of Transportation, 545 N.W.2d 526 (Iowa 1996), and River Bend Farms, Inc. v. M & P Missouri River Levee District, 324 N.W.2d 460 (Iowa 1982). In River Bend Farms, this court addressed whether attorney fees were allowable in an appeal from a leve......