State v. Johann

• Decision Date: 25 April 1973
• Docket Number: No. 55369,55369
• Citation: 207 N.W.2d 21
• Parties: STATE of Iowa and State Board of Regents, Plaintiffs, v. M. P. JOHANN et al., Defendants.
• Court: Iowa Supreme Court

Page 21

207 N.W.2d 21

STATE of Iowa and State Board of Regents, Plaintiffs, v. M. P. JOHANN et al., Defendants.

No. 55369.

Supreme Court of Iowa.

April 25, 1973.

Richard C. Turner, Atty. Gen., Elizabeth Nolan, Asst. Atty. Gen., Des Moines, and Arthur O. Leff, Iowa City, Special Counsel, for plaintiffs.

Welty & Wilcke and Cameron B. Arnold, Spirit Lake, for defendants.

Considered en banc.

REYNOLDSON, Justice.

Plaintiffs, State of Iowa and State Board of Regents, filed a petition for writ of certiorari in this court to challenge certain condemnation proceedings before the sheriff of Dickinson County and the chief judge of the (then) fourteenth judicial district. Those proceedings purported to condemn a right of way across land owned by the State for the benefit of a private landowner who claimed to have no public or private way to his tract. We entered an order for issuance of writ and proper return was filed. We now sustain the writ and annul the eminent domain proceedings below.

The landowner, defendant Johann, owned a lot on the tip of a peninsula extending into Lake Okoboji. This lot was accessible by water but landlocked by property owned by the State and under Regent control as a lakeside laboratory.

On November 11, 1971, Johann filed with the chief judge of the judicial district his application for condemnation of a right of way through the State's property. This application alleged his ownership of his described property, his lack of ingress and egress thereto, and the description of the roadway (40 feet in width) sought to be condemned. Paragraph 2 of the application stated,

'That the State of Iowa is the record owner of the land sought to be condemned, holding the same in trust for the Iowa Lakeside Laboratory; and the 'residence' seat of government, the State of Iowa is at Des Moines Iowa.'

Johann's application as well as the ensuing 'Chief Judge's Order Appointing Commissioners to Assess Damages' were captioned 'Before the Chief Judge of the 14th Judicial District.' While the application by its terms was grounded on § 471.4(4), The Code, this was an obvious clerical error. The landowner was obviously attempting to condemn his ingress and egress under the authority of § 471.4(2), The Code, which permits condemnation of private property only:

'471.4 Right conferred. The right to take private property for public use is hereby conferred:

2. Owners of land without way thereto. Upon the owner or lessee of lands which have no public or private way thereto * * *.

* * *.'

The resolution of two issues are determinative of this litigation: 1) Whether the chief judge of the judicial district was exercising a quasi-judicial function so as to permit certiorari to lie in this court, and 2) whether in Iowa the owner of private land may condemn a right of way for ingress and egress across State property.

I. The second issue is easily resolved. There is no statutory authority in Iowa permitting an individual to condemn State property. Reference has already been made to the very section upon which Johann grounded his condemnation, which clearly limits the taking to private property only. Section 471.4(2), The Code. Also pertinent as indicating the limitation of the right of eminent domain to Private property is the language found in §§ 471.1, 471.5, and 471.19, The Code.

Persuasive also is the first section in the chapter governing the procedure employed by Johann in this attempted condemnation:

'472.1 Procedure provided. The procedure for the condemnation of Private property for works of internal improvement, and for other public use and purposes, * * * shall be in accordance with the provisions of this chapter.' (Emphasis added.)

Clearly, Johann had no power to condemn any portion of the State's lakeside laboratory.

II. We therefore turn to the basic issue whether certiorari lies to this court under these circumstances.

Johann instituted the condemnation proceeding under § 472.3, The Code, which requires an 'application for condemnation' to be filed with the chief judge of the judicial district of the county in which the land sought to be condemned is located. Summarized, this application must set forth 1) a description of the property sought to be condemned, 2) a plat showing the right of way or other property sought to be condemned with reference to such description, 3) The names of all record owners and holders of liens and encumbrances and the residences of all such persons, 4) the purpose for which condemnation is sought and 5) a Request for appointment of a commission to appraise the damages.

Here the chief judge granted the application and request by appointing the commission. The simple question before us is whether a certiorari proceeding may be maintained in this court to test the legality of the proceedings in which the chief judge of the judicial district participated, when the condemnation application on its face clearly demonstrated there was no power or color of right to condemn, or whether plaintiffs must be relegated to the district court to challenge the purported condemnation in some proceeding, perhaps before the same judge whose action constitutes an element in the controversy. See rules 306 and 309, Rules of Civil Procedure.

It is true that condemnation in England's common law was administrative in nature. 1 Nichols, Law of Eminent Domain § 4.101(1) (Rev. 3rd ed. 1964) (hereinafter cited Nichols). In the United States, such proceedings are generally either judicial or administrative in character. Kessler v. Thompson, 75 N.W.2d 172 (N.D.1956); 1 Nichols § 4.101(2) (1964); 6 Nichols § 24.11 (1972). The Iowa statute as presently drafted, involving as it does the activity of a district court judge, appears to be a hybrid of the two. See chapter 472, The Code.

The classification of types of procedure, however, is a distinction without a difference as it relates to the condemnee's right to challenge the power to condemn by certiorari. The general rule is articulated in 1 Nichols § 4.101(2) (1964):

'In the states in which condemnation proceedings are considered judicial, a party seeking to take land by eminent domain must first satisfy the court that it has been authorized by the legislature to exercise the power, that the statute purporting to grant such authority is constitutional, that the conditions exist under which it was provided that the authority might be exercised, and that the condemning party has complied with the requirements of the statute. All of these objections are also open to an owner of land taken by eminent domain in a state in which condemnation proceedings are considered administrative and not judicial, and he is constitutionally entitled to a hearing thereon before a judicial tribunal; but he must raise such objections in certiorari or other appropriate proceedings instituted by himself, rather than in defending proceedings instituted by the condemning party.'

At the time when all condemnation proceedings were by statute before the sheriff, it was well settled in Iowa that certiorari was available in condemnation cases involving jurisdictional questions, substantial departures from statutory requirements, and other illegalities by a lower tribunal, board, officer or commission. Aplin v. Clinton County, 256 Iowa 1059, 129 N.W.2d 726 (1964); see Thornberry v. State Board of Regents, 186 N.W.2d 154 (Iowa 1971).

Provisions of rule 306, R.C.P., limiting certiorari to cases where the respondent is exercising judicial functions do not mean judicial functions in the strict technical sense in which the term is used when applied to courts. Certiorari will lie if the act is of a quasi-judicial character. Massey v. City Council of City of Des Moines, 239 Iowa 527, 31 N.W.2d 875 (1948).

The statutory amendment inserting the activity of a judicial district chief judge in the condemnation procedure would surely not render eminent domain procedure any less quasi-judicial in anture, so that certiorari will no longer lie. See Second Regular Session of the 63rd General Assembly, Chapter 1225 (1970). Yet pursuing defendants' logic to its end, that is the conclusion this court would be required to reach.

Under present development of our law, the condemnee walks a narrow and dangerous line when he elects to challenge jurisdiction or power of condemnation in an appeal to district court. Compare Thornberry v. State Board of Regents, 186 N.W.2d 154 (Iowa 1971) and Stellingwerf v. Lenihan, 249 Iowa 179, 85 N.W.2d 912 (1957) with Bourjaily v. Johnson County, 167 N.W.2d 630 (Iowa 1969).

We have consistently maintained, however, that statutes providing for the exercise of eminent domain must be strictly complied with and restricted to their expression and intent. Bourjaily v. Johnson County, 167 N.W.2d 630 (Iowa 1969); Miller v. Palo Alto Board of Supervisors, 248 Iowa 1132, 84 N.W.2d 38 (1957); Gilbride v. City of Algona, 237 Iowa 20, 20 N.W.2d 905 (1945).

Before the chief judge acts upon an application for condemnation filed pursuant to § 472.3, The Code, by selecting a compensation commission pursuant to § 472.4, he must initially make a judicial (or at least quasi-judicial) determination that the application is legally sufficient and the applicant is empowered to condemn. If every time an application was filed, regardless of its contents, the chief judge was required to select the commission, there would be no need for the information required by subsections 1--4 of § 472.3, summarized above.

The language of § 471.4, The Code, as noted in division I is clear. It delegates to certain entities and persons power to condemn 'private property.' The information required by § 472.3 to be in the application is sufficient to allow the chief judge to determine whether the property sought to be condemned is indeed Private property. Any proceedings to condemn public land under the sections involved here would be illegal. It follows that the chief judge acts illegally and in...