Edward A. Green, Melvin J. Green And Barbara Green Vs. Wilderness Ridge, L.l.c., Loras J. Faber, Sandra Faber, John H. Kivlahan, Doris E. Kivlahan And Dubuque County, Iowa

IN THE SUPREME COURT OF IOWA
No. 08–1009

Filed January 8, 2010

EDWARD A. GREEN, MELVIN J. GREEN
and BARBARA GREEN,

Appellants,

vs.

WILDERNESS RIDGE, L.L.C., LORAS J. FABER,
SANDRA FABER, JOHN H. KIVLAHAN, DORIS E.
KIVLAHAN and DUBUQUE COUNTY, IOWA,

Appellees.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Dubuque County,

Lawrence H. Fautsch, Judge.

Plaintiffs seek further review in private condemnation action

asserting that the district court ignored the costs of condemnation in
determining the “nearest feasible route.” DECISION OF THE COURT OF

APPEALS VACATED, DISTRICT COURT JUDGMENT AFFIRMED IN

PART AND REVERSED IN PART; CASE REMANDED.

Stephen W. Scott of Kintzinger Law Firm, P.L.C., Dubuque, for

appellants.

Brian J. Kane of Kane, Norby & Reddick, P.C., Dubuque, for

appellees.
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APPEL, Justice.

This case presents the court with a little utilized area of the law—

private condemnation. The plaintiffs seek further review of a district

court order granting the defendant’s action for private condemnation and

selecting the defendant’s proposed route of condemnation. While not

disputing the need for private condemnation, the plaintiffs challenge the

selection of the route, asserting that the district court’s determination of

the “nearest feasible route” was in error as it: (1) concluded that Dudley

Lane was not an existing public road and (2) ignored the costs of

acquiring the land sought to be condemned. On further review, we

vacate the decision of the court of appeals, affirm in part and reverse in

part the district court judgment, and remand the case for further

proceedings.

I. Factual and Procedural History.

In July 2006, Wilderness Ridge, L.L.C. purchased real estate in

rural Dubuque County for recreational and hunting purposes. At the

time of purchase, the defendant was aware that the seventy-five acre

tract of land was landlocked and inaccessible by public road or private

access. The previous owner attempted to secure access through private

condemnation prior to selling the property, but was unsuccessful. Once

the land was acquired, Wilderness Ridge instituted a new private

condemnation proceeding under Iowa Code section 6A.4(2) (2005) to

secure access to its property through neighboring tracts, including land

owned by the plaintiffs, Edward, Melvin, and Barbara Green.

The Greens subsequently filed a petition in equity arguing that the

route proposed by Wilderness Ridge was not the “nearest feasible route”

to an existing road as required by statute. Specifically, the Greens

asserted that Wilderness Ridge’s proposed route, known as the southern
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route, would have a devastating impact on their dairy farm. They argued

that the southern route, which would bisect the farm, would decrease

the value of their property and inhibit their day-to-day farming operation

because moving the cattle would be more onerous and half of their land

would now be cut off from electricity and water. Nevertheless, the

Greens did not challenge Wilderness Ridge’s need for private

condemnation. Instead, the Greens proposed an alternative route, the

northern route, which would traverse the northern-most portion of their

property.

The matter proceeded to trial before the district court. The Greens

called numerous witnesses, including Dennis Meyer, a farmer and real

estate broker, who testified that the southern route would devalue the

Green farm by $1200 an acre. Cornelius Donovan, a farm auctioneer,

estimated a $1500 loss per acre or a total devaluation of $180,000.

Additionally, the Greens called Rich Gansen, an excavation contractor,

who opined that construction of the northern route would also be less

expensive than the southern route as the southern route contained a

“swampy area” that would require the construction of at least one

culvert. Finally, the Greens asserted that the northern route would be

shorter than the southern route because after 2630 feet the northern

route would connect to Dudley Lane, a dedicated public road, while the

southern route would not connect to a public road for 4135 feet.

Wilderness Ridge, conversely, presented evidence relating to the

feasibility of the southern route. Michael Felderman, Dubuque County

Engineer, testified that although Dudley Lane was classified as a level “B”

county road it had not been maintained for several decades and no

longer physically existed. As such, the defendant asserted that Dudley

Lane did not qualify as a public roadway, making the northern route
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4555 feet in length, 420 feet longer than the southern route. Kenneth

Buesing, a registered engineer and land surveyor, also testified that

construction of the southern route would be more feasible as the land

was generally flat and a road could be constructed with a minimum

amount of damage to the surrounding agricultural land. The northern

route, alternatively, was unacceptable due to the “substantial elevation

changes” and dense timber coverage.

The district court agreed with Wilderness Ridge. First, the district

court concluded that Dudley Lane was not an “existing public roadway”

and thus could not be considered in selecting the route of condemnation.

Second, the court determined that the impact of condemnation,

including the devaluation of the Green farm, could not be considered in

selecting the route of condemnation. These costs were to be determined

at a later hearing on damages. Relying heavily on Buesing’s testimony,

the court finally determined that the southern route would be the most

feasible to build and thus constituted the “nearest feasible route” for

condemnation purposes.

The Greens appealed and we transferred the case to the court of

appeals. A divided panel of the court of appeals affirmed the district

court judgment, concluding that Dudley Lane was not an existing public

roadway and that the costs of condemnation could not be considered in

selecting the “nearest feasible route.” Plaintiffs sought further review. In

taking further review, this court “may in its discretion limit its opinion to

selected issues or may address all issues presented on appeal.” Botsko v.

Davenport Civil Rights Comm’n, 774 N.W.2d 841, 844 (Iowa 2009).

II. Standard of Review.

When an action is tried in equity, this court’s review is de novo.

Iowa R. App. P. 6.907. Nevertheless, this court gives weight to the
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factual findings of the district court, especially when considering the

credibility of witnesses. Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa

2000).

III. Discussion.

A. Statutory Requirements of Condemnation. Although

eminent domain, the power to seize private property, is typically

exercised by governmental bodies, the legislature has conferred a narrow

power of eminent domain upon private citizens in Iowa. That power is

codified in Iowa Code section 6A.4(2). While that section outlines the

limited availability of private condemnation, it also provides guidance for

courts in determining the appropriate route to be condemned. Section

6A.4(2) provides:
The condemned public way shall be located on a division,
subdivision or “forty” line, or immediately adjacent thereto,
and along the line which is the nearest feasible route to an
existing public road, or along a route established for a period
of ten years or more by an easement of record or by use and
travel to and from the property by the owner and the general
public.
Iowa Code § 6A.4(2) (second and third emphasis added). In determining

the appropriate route of condemnation in this case, we must determine

(1) what constitutes an existing public road and (2) whether the costs of
acquiring the condemned property can be considered in determining the

nearest feasible route.

B. Status of Dudley Lane. Though not dispositive, the status of

Dudley Lane is a factor to be considered in selecting the route of

condemnation. If Dudley Lane is considered an “existing public road,”

then the northern route would only be 2630 feet long. If, however,

Dudley Lane is not considered an “existing public road,” the northern

route would have to traverse 4555 feet to connect the Wilderness Ridge
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property to the next public road. At 4555 feet, the northern route would

be 420 feet longer than the southern route. 1

Iowa’s eminent domain statute requires that a route of

condemnation connect landlocked property “to an existing public road.”

Iowa Code § 6A.4(2). Numerous witnesses, including experts and

neighboring property owners, testified that no trace of Dudley Lane

currently exists. While the Greens offered evidence that Dudley Lane is

still classified in records as a level “B” road and that the road’s

theoretical location could be determined based upon old plats, Dudley

Lane does not physically exist. Dudley Lane thus exists as a road only

on paper and not in reality. As a result, we conclude that Dudley Lane is

not an “existing public road” under Iowa Code section 6A.4(2).

Requiring the existence of an actual physical roadway comports

with legislative intent. The purpose of section 6A.4(2) is to provide

landlocked property owners access to their property. Access which

would require Wilderness Ridge to engage Dubuque County in litigation

to compel the county to maintain Dudley Lane as a level “B” road would

not provide the defendant reasonable access to the property for the

foreseeable future, even if the outcome of such litigation was certain.

See In re Luloff, 512 N.W.2d 267, 271 (Iowa 1994) (rejecting claim that an

owner of landlocked property must pursue one or more legal actions in

order to determine whether he/she has access to the property prior to

initiating an action for private condemnation); Bellon v. Monroe County,

577 N.W.2d 877, 879 (Iowa Ct. App. 1998) (rejecting mandamus action to

force county to maintain level “B” road at level “A” standards).

1The mere fact that the northern route, without the use of Dudley Lane, is
slightly longer than the southern route is not dispositive on the issue of “nearest
feasible route.” Cf. In re Luloff, 512 N.W.2d 267, 272 (Iowa 1994). Length of the
available routes is, however, a factor to be considered in selecting the “nearest feasible
route.”
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C. “Nearest Feasible Route.” Although section 6A.4(2)

prescribes “nearest feasible route” as the standard for selecting the route

of condemnation, it does not define feasible nor describe what factors

should be taken into consideration when determining feasibility. This

court has also not had the opportunity to determine the meaning of

“nearest feasible route.”

In the absence of a statutory definition, the parties have offered

competing definitions. The Greens urge us to adopt a flexible approach

where there is no rigid formula for establishing the “nearest feasible

route.” Under their theory, a factor for the court to consider in selecting

the route of condemnation is the cost of acquiring the condemned

property. Wilderness Ridge, conversely, advocates for a narrow definition

and asserts that the word “feasible” as used in section 6A.4(2) solely

encompasses whether a particular route can be made into a usable

access—i.e., whether a road can be built across the route. Allowing the

district court to consider the costs of condemnation, moreover, under the

defendant’s theory, would usurp the authority of the compensation

commission which has jurisdiction over condemnation damages.

We agree with the Greens. “In the absence of a legislative

definition of a term or a particular meaning in the law, we give words

their ordinary meaning.” State v. Kidd, 562 N.W.2d 764, 765 (Iowa

1997). Dictionaries are ready sources for ascertaining the common and

ordinary definitions of a word. Id. Feasible has been defined as “capable

of being done, executed, or effected: possible of realization,” “capable of

being managed, utilized, or dealt with successfully,” and “reasonable.”

Webster’s Third New International Dictionary 831 (2002). At the core of

the definition of “feasible,” therefore, are the notions of reasonableness
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and practicality. A determination of which route is the most reasonable

to all parties involved, moreover, must be made on a case-by-case basis.

We note that unlike other state eminent domain statutes, section

6A.4(2) does not provide a laundry list of criterion for selecting the route

of condemnation. See, e.g., In re Private Rd. v. Bobst Mountain Hunting

Club, 684 A.2d 237, 241 (Pa. Commw. Ct. 1996) (noting the four

statutory criteria for selecting the location of a private road, including the

route which would do the least injury to private property). The failure of

the Iowa legislature to establish specific criteria for determining the

“nearest feasible route” suggests the need for an individualized

determination that extends beyond a mere determination of which route

is easiest to construct without consideration of land acquisition costs. In

this instance, 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.
Although we have found no private condemnation statutes in other
states using the phrase “nearest feasible route,” other jurisdictions have
followed a flexible approach and considered the impact of condemnation
in selecting the appropriate route. See, e.g., Tenn. Code § 54-14-
101(a)(1) (2008) (noting that route should do the least possible injury);
Brothers v. Holloway, 692 So. 2d 845, 848 (Ala. Civ. App. 1997) (noting
that the condemnees’ convenience was a material factor for the court to
consider); Bean v. Nelson, 817 S.W.2d 415, 418 (Ark. 1991) (noting that
in selecting the location of a private road, the court must take into
consideration not only the convenience and benefit to the limited number
of people it serves, but the injury and inconvenience it will occasion the
defendant); West v. Hinksmon, 857 P.2d 483, 487 (Colo. Ct. App. 1992)
(noting that in an action for private condemnation, the condemnee
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should be permitted to show that an acceptable alternative route across
condemnee’s property exists which would be less damaging than that
proposed by the condemnor).
Ignoring the cost of acquiring the condemned property, moreover,
would lead to absurdities. The shortest route of access to landlocked
property might be through highly-improved land. We think it is unlikely
that the legislature intended to mandate that the land to be condemned
must always be the shortest route, even though other somewhat longer
routes involved less negative impacts on other landholders and less
overall cost to develop when land acquisition costs are considered.
Nor do we believe that in allowing the district court to consider the
costs of acquisition we are usurping the statutory function of the
compensation commission. Under Iowa Code section 6B.4, after an
action for private condemnation has been granted, a compensation
commission is established “to assess the damages to all property to be
taken.” Allowing the district court to consider the impact of
condemnation does not usurp the commission’s jurisdiction because:
(1) it requires only an approximation, and not a determination, of the
damages of condemnation and (2) does not require or allow the district
court to issue a judgment on those damages. Moreover, the
compensation commission has no authority to challenge the route of
condemnation. Reserving the Greens’ challenge to the damages
proceedings, therefore, does not vindicate their rights.
Finally, this approach is consistent with our prior case law. In
Owens, this court considered the criteria for determining whether a
property owner had reasonable access to his land or, in other words,
whether the owner had a right to private condemnation. Owens, 610
N.W.2d at 867–68. In reaching that question we suggested that in some
“cases it may be appropriate to also consider the value of the land sought
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to be condemned.” Id. at 868. If the value of the land sought to be
condemned is an appropriate factor to consider in evaluating the right to
condemnation, the value of the land sought to be condemned is an
appropriate factor to consider in determining the specific route of
condemnation. Upon our de novo review, we hold that the district court
erred in not considering the costs of condemnation in selecting the
“nearest feasible route.”
While both parties seek finality and urge this court to determine
the “nearest feasible route,” we are unable to do so under the record
presented. At trial, the Greens presented substantial testimony
regarding the cost of acquisition in the selection of the southern route.
The record also contains anecdotal evidence in regard to the costs of
acquisition for the northern route, which impacts property owners other
than the Greens. The district court, however, did not make findings of
fact regarding the cost of acquisition of either route. Such findings of
fact could involve credibility determinations which should be made in the
first instance by the district court. As a result, this case is remanded to
the district court for additional factfinding and a determination of the
“nearest feasible route,” which takes into consideration the cost of
acquiring the condemned property, under the current record.
IV. Conclusion.
On further review, we conclude that the costs of acquiring the
condemned property should be considered in selecting the “nearest
feasible route.” The decision of the court of appeals is vacated, the
district court judgment is affirmed in part and reversed in part, and the
case remanded for further proceedings.
DECISION OF THE COURT OF APPEALS VACATED, DISTRICT
COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART;
CASE REMANDED.