Iowa Court Denies Private Condemnation of Right of Way

February 11, 2016 | Kristine A. Tidgren

Although recent talk of eminent domain has centered on high profile projects such as the Dakota Access pipeline, a less discussed provision of Iowa law confers a narrow power of eminent domain upon private citizens in certain cases where a landowner has a “land locked” parcel. A recent case from the Iowa Court of Appeals details how this law is applied.

Iowa Code § 6A.4(2) confers the right to take private property for public use “upon the owner or lessee of lands, which have no public or private way to the lands, for the purpose of providing a public way which will connect with an existing public road.”

To initiate the condemnation, the landowner with a landlocked parcel files an application for condemnation with the chief judge of the judicial district of the county in which the land sought to be condemned is located. Iowa Code § 6B.3(1). The landowner threatened by condemnation can file a petition challenging the landlocked parcel owner’s right to condemn. That was the posture of Evans v. Worth,[i] which was decided by the Iowa Court of Appeals on February 10, 2016.

In this case, the landowners initiated a condemnation proceeding to acquire a public right of way over the property of their neighbors. The landowners argued that they could not access a 40-acre parcel of land they wished to convert from the Conservation Reserve Program into row crop production. The access difficulty arose because of a low river separating the parcel from the rest of the landowners’ property. The landowners had attempted to construct a low water crossing over the waterway by engaging the services of a contractor. The contractor constructed a crossing for $10,000 by moving more than 200 tons of rocks into the area. The crossing failed within a few weeks, and the landowners instituted their condemnation action.

The neighbors filed a petition challenging the landowners’ right to condemn the property. They argued that the landowners’ property was not landlocked because reasonable access to the property could be gained by making some reasonable modifications. At trial, the neighbors introduced testimony from a contractor who had been constructing low-river crossings for 20 years. This contractor—who had submitted a bid to the landowners, but had been rejected because of cost—testified that he could fix the failed crossing for $15,500 and that it could be maintained for about $400 to $500 each year.

The landowners presented the testimony of an engineer who was not “real familiar” with low water crossings. He testified that it would cost about $96,000 to construct a proper low water crossing.

The district court found in favor of the neighbors, ruling that they had met their burden to show that the landowners were not authorized to condemn land as a public way because their property was not landlocked.

On appeal, the Court of Appeals agreed. Specifically, the court examined the landowners’ ability to change the condition of the land to obtain access, noting the applicable legal standard:

If one has a way through his own land, he cannot impose a way of necessity through his neighbor’s land, unless his own way is not reasonably adequate or its cost is prohibitive. Mere inconvenience or mere cost, as the basis for using another’s land to get access to one’s own property, falls short of meeting this test.

The court found that the evidence amply supported the district court’s finding that the landowners’ expert was more “credible.” He had 20 years of experience constructing similar crossings and had even constructed such a crossing on the neighbors’ property.

The court then looked at the testimony establishing that the 40-acre parcel was worth about $8,000 an acre. The court found that the cost of constructing a way across the natural obstruction (about $15,500) was “far from disproportionate” to the value of the land ($320,000). Consequently, the court found that the property was not landlocked because reasonable access could be gained by constructing a crossing at a reasonable cost.

The court thus affirmed the district court’s court order adjoining the landowners from proceeding with their condemnation action.

The full opinion can be read here.



[i] No. 14-2099 (Iowa Ct. App. February 10, 2016).