The un-neighborly neighbor: A recent private condemnation case

Ben Bruner Iowa Real Estate & Land Use Iowa Commercial Litigation Dickinson Law Firm Des Moines, Iowa

Posted on 06/24/2011 at 01:06 PM by Benjamin Bruner

Green v. Wilderness Ridge, LLC, a recent Iowa Court of Appeals case, involved a private condemnation action brought under Iowa Code Section 6A.4(2). Said code section provides for a private right of condemnation where property is not otherwise accessible by a public roadway, but requires the selection of the "nearest feasible route" in doing so.  Wilderness Ridge, L.L.C. (Wilderness) purchased land in rural Dubuque County knowing that the property was not accessible by a public roadway, and thus instituted a private condemnation action to secure access through neighboring tracts, including farm land owned by a couple of brothers (the Greens). The Greens filed a petition in equity, arguing the route proposed by Wilderness was not the nearest feasible route to an existing public road as required under section 6A.4(2).  Specifically, the Greens asserted that Wilderness' proposed route would have a devastating impact on their dairy and crop farming operations (i.e. inhibiting day-to-day farming operation due to moving cattle, decrease the value of the property, etc.). 

The Greens were not necessarily challenging Wilderness' right to a private condemnation, but were challenging the route proposed by Wilderness. The court concluded that the harm to neighboring properties needs to be considered when determining the nearest feasible route in a private condemnation setting, and thus ordered the least harmful route to be used. In interpreting the phrase nearest feasible route in section 6A.4(2), the supreme court had previously emphasized the need for individualized determination that extends beyond a mere determination of which route is the easiest to construct without consideration of land acquisition costs.  It was ruled that in certain instances, determining the nearest feasible route of condemnation requires consideration of which route is easier to construct and which route will do less harm to the neighboring properties.  The courts are thus forcing condemning neighbors to be, well, neighborly in choosing the route to condemn.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Ben Bruner

 

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