(dissenting).
I respectfully dissent.
Large principles and far reaching consequences are sometimes born from small cases. That is the situation here. Jim Kelley, plaintiff, owned a house that he rented to Penny Ball. The police broke into the house in order to arrest William Vary, a frequent guest of Ball. In doing so, the police damaged two doors for which Kelley asks to be compensated in the amount of $1099.60 for repairs. Kelley did not live in the house and was not present at the time of the incident.
The majority holds that the Iowa Constitution does not provide for any compensation to Kelley, the owner of the house, who, though innocent of any fault, suffered *485damage to his house caused by the police. I believe the majority’s strictured view of the Iowa Constitution is legally unnecessary and causes an inequitable result.
Additionally, the majority holds that Kelley is barred from collecting damages from anybody because the doctrine of sovereign immunity prevents assessment of damages against the police or Story County. This vestige of the doctrine remains though government has assumed responsibility for payment of some other types of claims. The fallout from these tandem rulings is that Kelley bears the whole loss to his property apparently as the price an innocent citizen must pay for government acts legally undertaken to enforce the law.
Today, plaintiff Kelley suffers a property loss of $1099.60. Tomorrow, by a police incursion that precipitates escalating damages, the property loss could reach a hundred times Kelley’s loss or more. Should a property owner be expected, as a good citizen, to bear this loss while state and county government are shielded from paying for any of it? I think not. Yet, the principles established by this small claims court case will apply and control all future cases, small or large, to deny any compensation for property damage caused by the police under these circumstances.
Anticipating that acts of government may cause damage to the property of a private citizen, the framers of the Iowa Constitution crafted language mandating the payment of “just compensation.” Article I, section 18 of our Iowa Constitution provides as follows:
Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages that may result to said owner on account of the improvements for which it is taken.
This language is clearly broad enough to include Kelley’s claim for property damage. The apparent intent of the drafters of this constitutional provision was to expect government takings from time to time but to order that payment be made for the property taken.
The text of article I, section 18 of the Iowa Constitution, as I have quoted it, is from the 1885 Code of Iowa. That language has never been amended. Iowa’s first constitution, adopted in 1851, succinctly stated the legal principle:
Private property shall not be taken for public use without just compensation.
Iowa Const, art. I, § 18 (1851). It was referred to in Henry v. Dubuque & Pac. R.R., 2 Coles 288 (Iowa 1855), as follows:
That language of the constitution means that the person whose property is taken for public use shall have a fair equivalent in money for the injury done him by such taking; in other words, that he shall be made whole, so far as money is a measure of compensation, we are equally clear. This just compensation should be precisely commensurate with the injury sustained, by having the property taken; neither more nor less.
Henry, 2 Coles at 300.
The majority quotes from the present Code of Iowa that embosses as a heading to article I, section 18 the words “Eminent Domain.” Those words appear in the 1897 Code of Iowa, not by virtue of any constitutional change, but by the gratuitous captioning work of an unknown editor. The words “Eminent Domain” are not, nor have they ever been, a part of article I, section 18 of the Iowa Constitution. They do not, therefore, limit or have any bearing on our consideration of the breadth of constitutional meaning contained in section 18.
For this reason, we should not be diverted into a comparison of eminent domain cases and police power cases when the referents are not even in the constitutional language. Nor does the reliance by the majority on the rules of inverse condemnation have any application to this case. See *486generally Bormann v. Kossuth County Bd. of Supervisors, 584 N.W.2d 809 (Iowa 1998). The Bormann case pertained to an invasion by noxious odors from a hog confinement facility. The question was whether a “taking” could occur when there had been no physical invasion or occupancy of plaintiffs property. Bormann held that a “taking” had occurred and set up rules, relied on by the majority, to determine if a taking would occur under circumstances of this nature. Id. at 315-22.
Although appropriate in Bormann and like cases, these rules are inapt to resolve the issue in the present case.
Bormann, in its discussion of takings jurisprudence, recognized the rules that I believe should be applied in the case at bar. We said:
(1) Takings jurisprudence, generally. There are two categories of state action that must be compensated without any further inquiry into additional factors, such as the economic impact of the governmental conduct on the landowner or whether the regulation substantially advances a legitimate state interest. The two categories include regulations that (1) involve a permanent physical invasion of the property or (2) deny the owner all economically beneficial or productive use of land. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). These two categories are what the neighbors term “per se” takings. The per se rule regarding the first category — physical invasion— was firmly established in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 425, 102 S.Ct. 3164, 3171, 73 L.Ed.2d 868, 886 (1982).
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(a) Trespassory invasions of private property by government enterprise.
Generally when the government has physically invaded property in carrying out a public project and has not compensated the landowner, the United States Supreme Court will find that a per se taking has occurred. See [John W.] Shonkwiler [ & Terry Morgan, Land Use Litigation ] § 10.01(1), at 369.
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In a more recent case, the Court applied the same rule to a state law that authorized third parties to physically intrude upon private property. Loretto, 458 U.S. at 432 n. 9, 102 S.Ct. at 3174 n. 9, 73 L.Ed.2d at 880 n. 9 (holding that a New York statute requiring the owners of apartment buildings to permit cable television operators to install transmission facilities on their property was in violation of the Just Compensation Clause).
Id: at 316-17.
Other rules enunciated in Bormann, and relied on by the majority, apply in all cases other than a per se taking case. Those rules pertain to regulatory takings, on a case-by-case basis, balancing the property owner’s interests against the reasonableness of regulatory action. See id. at 315-22.
This is a per se taking case. The doors in Kelley’s house were damaged by the police breaking in; a physical invasion thereby resulted. A per se “taking” by the acts of government officers occurred which obviates the need to consider rules that balance a property owner’s interests against police regulatory action. To apply these balancing rules, that apply to other than per se takings, to see if a taking has occurred in the case at bar, is an after the fact analysis. The undisputed fact that Kelley’s doors were damaged legally determines that a “taking” of this property occurred.
For this same reason, cases debating the legitimate exercise of police power and eminent domain power are irrelevant. The case at bar should not even consider whether the use of force by the police was reasonable. In framing its analysis based on this point, the majority has diminished the language of article I, section 18, of the Iowa Constitution, ranking it on the same *487level for analysis as statutory language articulating police powers, found in Iowa Code section 804.15. By this approach the majority has strayed from focusing on, and giving primary importance to, the words of the Constitution.
The salient words of our constitution, for this case, are: “Private property shall not be taken for public use without just compensation. ...” Iowa Const, art. I, § 18.
These words convey a broad meaning and are all inclusive. Our construction of them should not reduce their universal application simply because of the brevity of language. While the constitutions of other states may include additional words to specify compensable property rights, that fact does not change the meaning and application of the words in the Iowa Constitution.
I believe the proper rationale for deciding the meaning of the words “taken for public use” in the Iowa Constitution is set out by the Minnesota Supreme Court in the case of Wegner v. Milwaukee Mutual Insurance Co., 479 N.W.2d 88 (Minn.1992). With facts remarkably similar to those in our present case, the Minnesota court held that. its constitution mandated that compensation be paid for a taking of property by the government. Wegner, 479 N.W.2d at 42.
In Wegner, the Minneapolis Police Department severely damaged a house while attempting to apprehend an armed suspect. Article I, section 13, of the Minnesota Constitution provides: “Private property shall not be taken, destroyed or damaged for public use without justification, first paid or secured.”
The Minnesota court viewed this provision with the following rationale:
This provision “imposes a condition on the exercise of the state’s inherent supremacy over private rights.”
This type of constitutional inhibition “was designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960).
Id. at 40.
In Wegner, the city made exactly the same argument as is made in the present case, where Kelley is denied compensation. The city of Minneapolis contended that there was not a taking for public use because the actions of the police constituted a legitimate exercise of the police power. To this argument the court answered:
The police power in its nature is indefinable. However, simply labeling the actions of the police as an exercise of the police power “cannot justify the disregard of the constitutional inhibition.”
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Consequently, the issue in this case is not the reasonableness of the use of chemical munitions to extricate the barricaded suspect but rather whether the exercise of the city’s admittedly legitimate police power resulted in a “taking.”
Id. (citations omitted).
The munitions used by the Minneapolis police were flash-bang grenades that broke every window in the house, went through walls, and covered walls and furniture with a pink film from tear gas. The estimated damages were $71,000.
The city of Minneapolis also argued that no compensation was owed based on the doctrine of public necessity. Rejecting this argument, the Minnesota Supreme Court reasoned:
Once a “taking” is found, compensation is required by operation of law. Thus, if the doctrine of public necessity were to apply to a given fact situation, no taking could be found under Minn. Const, art. I, § 13.
We are not inclined to allow the city to defend its actions on the grounds of public necessity under the facts of this case. We believe the better rule, in situations where an innocent third par*488ty’s property is taken, damaged or destroyed by the police in the course of apprehending a suspect, is for the municipality to compensate the innocent party for the resulting damages. The policy considerations in this case center around the basic notions of fairness and justice. At its most basic level, the issue is whether it is fair to allocate the entire risk of loss to an innocent homeowner for the good of the public. We do not believe the imposition of such a burden on the innocent citizens of this state would square with the underlying principles of our system of justice. Therefore, the City must reimburse Wegner for the losses sustained.
Id. at 42 (citations omitted).
The Texas Supreme Court agrees with the rationale of the Minnesota Supreme Court and has held that compensation is provided under. the. Texas Constitution. See Steele v. City of Houston, 603 S.W.2d 786 (Tex.1980). In Steele, a group of escaped prisoners took refuge in a home, not then occupied by the owner or his renters. When the police discovered the prisoner’s location, they discharged incendiaries into the home in order to burn out the prisoners. On arriving at the scene, the fire department was prevented by the police from stopping the fire. The police action resulted in the destruction of the house and all of the personal property of the renters. The owner and renters sued the City of Houston claiming damages under the Texas Constitution.
The Texas Constitution provides for the payment of compensation to' a person whose property is “taken, damaged or destroyed for or applied to public use.” Texas Const, art. I, § 17. Commenting on these words, the Texas Supreme Court said:
The taking, the damaging, or the destruction of property are often treated, more or less, as synonyms, ‘but the terms are different and have different historical origins. The underlying basis for compensating one whose property is taken, damaged or destroyed for public use, may, however, be the same, for the prohibition against uncompensated takings “was designed to bar government from forcing some people alone to bear, public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554. (1960); Y.M.C.A. v. United States, 395 U.S. 85, 89, 89 S.Ct. 1511, 23 L.Ed.2d 117 (1969).
Steele, 603 S.W.2d at 789.
The Texas Supreme Court then observed that, through its cases, the court had moved “beyond the earlier notion that the government’s duty to pay for taking property rights is excused by labeling the taking as an exercise of police powers.” Id. at 789. Further reaching back in history, the court recalled that uncompensated governmental taking of property was unlawful before the Magna Carta. Id. In concluding, the Texas court said:
The City argues that the destruction of the property as a means to apprehend escapees is a classic instance of police power exercise for the safety of the public. We do not hold .that the police officers wrongfully ordered the destruction of the dwelling; we hold that the innocent third parties are entitled by the Constitution to compensation for their property.
Id. at 793.
In Wallace v. City of Atlantic City, 257 N.J.Super. 404, 608 A.2d 480 (Law Div. 1992), the Atlantic City police damaged three doors while breaking into a residence to execute a search warrant. The total cost of labor and materials necessary to repair the doors was $900.97. The Superior Court held that this act by police constituted a “taking” under the United States and New Jersey Constitutions that entitled the property owner to just compensation in the amount of the damages. Wallace, 608 A.2d at 483.
*489I do not believe that the words “damaged or destroyed” used in the Minnesota and Texas Constitutions are of any distinguishing legal significance from the word “taken” contained in article I, section 18 of the Iowa Constitution. Any property damaged or destroyed has been taken from its owner whether in whole or in part by virtue of the owner’s immediate diminished use of it.
The framers of the Iowa Constitution said it all by providing for “just compensation” to be paid when property is “taken for public use.” Additional words like “damaged” or “destroyed,” are nothing but a redundancy, conceptually and legally.
Nor should constitutional language be parsed to cover Kelley’s doors for compensation as a “taking” if the police hauled them away, but not as a “taking,” if the damaged doors were left hanging on their hinges. Logic, equitable principles, and constitutional law support compensating Kelley for his property loss, taken through government acts envisioned by the framers of our constitution.
I would reverse and remand this case for entry of judgment against Story County in favor of plaintiff Kelley as commanded by the law of our Iowa Constitution, article I, section 18.
LAVORATO, J., joins this dissent.