IN THE COURT OF APPEALS OF IOWA
No. 1-213 / 10-1339
Filed May 11, 2011
EDWARD A. GREEN and MELVIN
WILDERNESS RIDGE, L.L.C.,
Appeal from the Iowa District Court for Dubuque County, Lawrence H.
Wilderness Ridge appeals from the district court‟s condemnation order
following a remand. AFFIRMED.
Brian J. Kane of Kane, Norby & Reddick, P.C., Dubuque, for appellant.
Stephen W. Scott of Kintzinger Law Firm, P.L.C., Dubuque, for appellees.
Considered by Vogel, P.J., and Doyle and Tabor, JJ.
This private condemnation case returns to the appellate courts following
the district court‟s revised determination of the “nearest feasible route” to an
existing public road for the owners of the Wilderness Ridge, L.L.C., to reach their
landlocked recreational tract. See Iowa Code § 6A.4(2) (2007). Faced with the
choice between a northern and southern route across the Green brothers‟ 400acre property, the district court originally condemned the southern route,
declining to consider the impact of the condemnation on the Greens‟ farming
In January 2010, our supreme court remanded the matter to the
district court for additional fact finding and a determination “which takes into
consideration the cost of acquiring the condemned property.”
Wilderness Ridge, L.L.C., 777 N.W.2d 699, 705 (Iowa 2010).
On remand, the district court condemned the northern route, relying on the
Greens‟ real estate experts who opined that the southern route would be costly
and disruptive to the farming operation. Wilderness Ridge appeals, arguing the
Greens‟ evidence does not support the condemnation damages alleged. Giving
due weight to the district court‟s factual findings and considering both the ease of
constructing the road and its harm to neighboring properties, we agree the
northern approach is the “nearest feasible route” and affirm.
Background and Proceedings
Dave Buchheit and Tim Nefzger own the limited liability corporation known
as Wilderness Ridge. The two friends wanted to acquire timberland for hunting,
camping, and other recreational purposes, as well as occasional logging. To this
end, Buchheit and Nefzger purchased a seventy-five-acre tract of land in rural
Dubuque County in July 2006.
The owners knew the property was not
accessible by a public roadway and instituted a private condemnation action
under Iowa Code section 6A.4(2) to secure access through neighboring tracts,
including farm land owned by brothers Edward and Melvin Green. The Greens
conduct dairy cow and beef cattle operations, as well as crop farming, on their
400 acres purchased in 1982.
On June 18, 2007, the Greens filed a petition in equity, arguing the route
proposed by Wilderness Ridge was not the “nearest feasible route” to an existing
public road, as required under section 6A.4(2).
Specifically, the Greens asserted that Wilderness Ridge‟s proposed
route, known as the southern 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.
Green, 777 N.W.2d at 701.
Following a trial, the district court entered an order on May 15, 2008,
concluding the appropriate route to be condemned was the southern one favored
by Wilderness Ridge. In selecting the “nearest feasible route,” the district court
declined to consider the impact of the condemnation—including the devaluation
of the Greens‟ farm. The Greens appealed that order. A divided panel of our
court affirmed. On further review, the supreme court decided the district court
erred in “not considering the costs of condemnation in selecting the „nearest
feasible route.‟” Green, 777 N.W.2d at 705. The supreme court remanded the
case for the district court to engage in additional factfinding regarding the costs of
acquiring either route and to reach a conclusion as to the more feasible route on
the existing record. Id.
On remand, the district court directed the parties to file briefs supporting
their positions based on the record made at trial. On June 1, 2010, the district
court issued an order concluding that “the northern route is the nearest feasible
route.” The court premised that conclusion on the following factual findings:
It appears inherent in the ruling of the supreme court that
this Court must consider the fact that if the southern route (Route
No. 6) were chosen, Plaintiffs would have to fence the condemned
roadway which would reduce the value of the land. . . . Plaintiffs‟
experts testified that the erection of a fence across the condemned
roadway would, in effect, divide the Green Brothers‟ farm into two
pieces which would reduce the value of the land by $180,000 or
$190,000. Wilderness Ridge purchased the property in 2006 for
the sum of $130,000. Plaintiffs accurately state that the costs of
acquisition and development of the northern route (Route No. 8)
would be in the area of $25,000.
Wilderness Ridge moved to enlarge the court‟s factual findings.
motion asserted: “Nowhere in the supreme court‟s opinion did it make a finding
that a fence would be required. The supreme court left the fact of whether a
fence would be required to this Court.” Wilderness Ridge went on to argue that
fencing would not be required by the statute and the court should not consider
the “unneeded fence” when determining the reduction to the value of the Greens‟
land. The motion also attempted to discredit the Greens‟ expert while touting the
credibility of its own real estate specialist.
The Greens responded to the motion to enlarge as follows:
While the Supreme Court did not expressly state that a
fenced roadway was required, that conclusion is inherent in its
opinion; that conclusion is clearly supported by the record and is
required by law. The Green Brothers have a duty to restrain their
livestock and the only way to restrain 200+ head of cattle is a fence.
The Greens also replied to Wilderness Ridge‟s arguments concerning the relative
reliability of the expert witnesses.
On July 15, 2010, the court overruled the motion to enlarge findings “for
the reasons stated in the Response to Motion to Enlarge filed by Plaintiffs.”
Wilderness Ridge now appeals.
Standard of Review
When the district court conducts a trial in equity, our review is de novo.
Iowa R. App. P. 6.907. Even on de novo review, we accord weight to the factual
findings of the district court, especially when they involve witness credibility. See
Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa 2000).
Wilderness Ridge waived its claim that the northern route was
not “on” or “immediately adjacent” to a division line.
As its first ground for reversal, Wilderness Ridge contends the northern
route “does not comply with the statutory requirements for a condemned public
way” because the route does not stay on or immediately adjacent to “a division,
subdivision or „forty‟ line” as required by section 6A.4(2)(b). Wilderness Ridge
does not point us to where in the record it preserved error on this argument. It
asserts only that error was preserved by filing a timely notice of appeal. “While
this is a common statement in briefs, it is erroneous, for the notice of appeal has
nothing to do with error preservation.”
Anuradha Vaitheswaran & Thomas
Mayes, Error Preservation in Civil Appeals in Iowa: Perspectives on Present
Practice, 55 Drake L. Rev. 39, 48 (Fall 2006) (explaining that “[a]s a general rule,
the error preservation rules require a party to raise an issue in the trial court and
obtain a ruling from the trial court”).
We are unable to find that Wilderness Ridge raised the issue of
compliance with the proximity requirement in section 6A.4(2)(b) during the
remand proceedings or that the district court rejected that argument in
condemning the northern route. See State v. Hernandez-Lopez, 639 N.W.2d
226, 233 (Iowa 2002) (noting we will only review an issue raised on appeal if it
was presented to and ruled on by the district court). The district court mentioned
this issue in an April 16, 2008 order on Wilderness Ridge‟s motion to adjudicate
law points. But the court did not address the claim in its June 1, 2010 order and
Wilderness Ridge did not urge this argument in its motion to enlarge findings.
We decline to address an issue on appeal where there is nothing to review from
the district court. See Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998).
The district court properly considered devaluation of the
Greens’ property when choosing the nearest feasible route.
As a second basis for reversal, Wilderness Ridge argues that the district
court erred in relying on the Greens‟ evidence concerning the acquisition costs of
the southern route.
The crux of the argument is that no law requires the
condemned roadway to be fenced. Specifically, Wilderness Ridge looks to the
following language in section 6A.4(2)(c): “When passing through enclosed lands,
the public way shall be fenced on both sides by the condemnor upon request of
the owner of the condemned land.” Wilderness Ridge asserts that the Greens‟
land was not enclosed, citing to testimony in the record from Dave Buchheit and
realtor Cornelius Donovan that the fencing around the northern portion of the
property was not “livestock-proof.” Any desire the Greens may have to erect a
fence, according to Wilderness Ridge, should not contribute to the court‟s
calculation that their property is harmed by the condemnation.
On appeal, the Greens admit the condition of their fences is “less than
perfect.” But in arguing that their land is “enclosed” within the meaning of section
6A.4(2)(c), they point to undisputed testimony that they rotationally graze as
many as 225 head of dairy cows and feeder cattle on their farm and have never
had animals wander onto neighbors‟ property. They further argue that even if
their land were not considered “enclosed” under the condemnation statute, they
have a legal duty to restrain their livestock. Finally, the Greens contend that
even if there were no fence erected along the southern route, the construction of
a road bisecting their farm at that location would cause significant damage.
In exercising our de novo review of the record, we find that the Greens‟
farm was “enclosed” within the contemplation of section 6A.4(2)(c). The term
“enclosed lands” as used in the private condemnation provision means “lands
surrounded by fences or other obstructions signifying boundaries protecting the
land.” Schafer v. Cocklin, 504 N.W.2d 454, 455 (Iowa 1993).
In reaching this
construction, the supreme court looked to the purpose of the statute:
In requiring fencing of a right of way through enclosed lands, the
legislature recognized that farmers with livestock might wish to
have their animals protected from traffic on the right of way or from
gates being left open. If their own land was unfenced, the
condemnees would not have such problems. To require fencing of
unfenced land would be in the nature of a penalty, rather than a
Schafer, 504 N.W.2d at 455.
The Greens‟ property is demarcated by a fence line, even if it is not in the
We don‟t read Schafer as requiring the existing fence to be
impervious to the errant cow.
The Greens have livestock they wish to be
protected from traffic on the right of way. It was proper for the district court to
factor in the cost of constructing a fence when deciding on the nearest feasible
route through the Greens‟ farm.
Two farm realtors testified that fencing off the access road along the
southern route would significantly reduce the value of the Greens‟ property.
Dennis Meyer estimated that the fence would decrease the per acre value by as
much as $1200 resulting in a total devaluation of $190,000. Cornelius Donovan
opined that the Greens‟ farm would be less attractive to potential buyers after the
construction of a fenced access road and estimated a diminution in the land‟s
value of approximately $180,000.
Furthermore, we agree with the Greens that even if fencing was not
required, building an access road along the southern route takes a toll on their
farm in other ways. Construction of the road itself will alter the crop field borders
and point rows which will shrink the productive capacity of the land. Real estate
broker Meyer estimated that the reduction in tillable acres alone from
construction of the southern route would cost the Green brothers as much as
$27,500 over the next twenty years. Edward Green testified that construction of
an access road along the southern route through his farm also would create new
drainage issues: “It changes the direction the water goes. It concentrates more
water in the waterway instead of water flowing across the field when you get a
heavy rain.” Even when we take the cost of fencing out of the equation, the
southern route‟s impact on the Greens‟ farming operation makes it less feasible
than the northern route.
In interpreting the phrase “nearest feasible route” in section 6A.4(2), our
supreme court emphasized the need for an individualized determination “that
extends beyond a mere determination of which route is the easiest to construct
without consideration of land acquisition costs.” Green, 777 N.W.2d at 704. The
“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.” Id. We agree with
the district court‟s determination that the northern route will do less harm to the
Greens‟ property and, in this instance, is the “nearest feasible route” to an
existing public road.