If property is landlocked am I forced to allow access through my property?

04/03/2007 - Category:Real Property - Easements - State: IA #2585

Full Question:

A parcel of land that adjoins land we own is being sold. This land is strictly timber and hunting ground so for many years the person who owned the land was able to get to his land by crossing a river/stream that is considered easy to cross and is shallow most times of the year. Recently we were told that this parcel of land is considered "landlocked" and the seller is claiming that the person he is selling the land to will have the right to an easement through my property. Is that true even though the land is accessible by another method (crossing the river) and the land is only used for hunting purposes?

Answer:

The best way to answer this question is to discuss the Iowa case of Owens v. Brownlie, No. 56/98-1133 (Iowa 2000). The Brownlie family owned a 200-acre farm in Benton County. The land passed to Dean and Donna Brownlie in 1995 following the death of their mother. Dean inherited the southern 100 acres while Donna inherited the northern 100 acres. The 200-acre tract was bordered on the east by the Benton-Linn Road. A public road also bordered the property to the south. Farm land owned by third parties bordered the property to the west and the north. A creek, known as Dry Creek, ran diagonally across the tract from the northeast corner of the land to the western half of the southern border.

Contrary to its name, water ran through Dry Creek at various levels depending upon the time of the year and the amount of rainfall. The creek was generally seven to nine feet wide with water at a minimum level of three inches in the fall of the year. The water level was around eighteen inches in springtime. For the most part, the creek had steep banks. After a heavy rain, the creek could rise to levels in excess of five feet and spill over the banks. Over the years, the Owens family gained access with their farm equipment to the land west of Dry Creek by three methods. One method was to enter from the public road running along the southern border. Another means was to cross over the neighbor’s land to the north. The third method was to cross through a shallow area of the creek in the northern portion of the land where the banks of the creek slope.

Over time, the access point through the creek was discontinued. It was last used in 1967. A grove of trees subsequently grew in the area and the creek started to produce steeper banks. Additionally, the crossing over the neighbor’s land to the north was lost a number of years ago. After the land was divided into north and south tracts, the Brownlies believed that they did not have ingress or egress to their land west of Dry Creek. They instituted a condemnation proceeding seeking to acquire a public way over Owens’ land for the purpose of ingress and egress. They alleged in their condemnation application that their property was land locked, and sought to condemn a 100-yard path along the western border of Owens’ land to the public road running along the southern border of the land.

The Brownlies presented their application for condemnation to the chief judge of the sixth judicial district. This is the judicial district in which the property is located. The judge appointed a condemnation commission to assess the value of the strip of land sought to be condemned. Owens was notified of the time and date in which the commission would view his land to assess the damages.

The land was appraised by the commission at $2740. Owens subsequently filed a petition seeking a declaratory judgment that the Brownlies were not authorized to condemn the land. He claimed the Brownlies had reasonable access to the land west of Dry Creek by simply crossing through the creek. Owens acknowledged that the area of the creek formerly used as a crossing could not presently accommodate farm equipment. However, he maintained that the old creek crossing could be restored by removing the trees, grading the banks, and installing a rock or gravel bed. Owens testified that his father was able to transport all of his farm equipment over the area when it was used as a crossing prior to 1967. Owens also believed the Brownlies could install a large culvert or construct a bridge over the creek. Evidence was introduced to the contrary by the Brownlies. The district court found the Brownlies did not have reasonable access to their land west of Dry Creek and were entitled to condemn Owens’ land to gain a public way.

Eminent domain is the power of a government to take private property for public use conditioned upon the payment of just compensation. It is recognized to be an inherent aspect of government, exercised through entities or individuals authorized by statute. Common recipients of the power of eminent domain include counties, cities, public service entities, as well as the state. The power to condemn land in Iowa is also conferred upon those who own or lease land which has no public or private access. Thus, an owner of "land locked" property is permitted to institute condemnation proceedings to secure a public way over other land to permanently solve the inability to access the property. An owner who seeks to exercise the right of condemnation must in fact have no public or private way from the land to a street or highway.

The language of Section 6A.4(2) of the Iowa Code authorizes condemnation when a landowner has "no public or private way to the lands." The goal of the statute authorizing condemnation by an owner of land locked property is to solve the problem of access to the property. It is socially desirable to make land locked property useable by providing a means of ingress and egress. This purpose is implicated when part of a tract of land is inaccessible just as when all of the land is inaccessible. A natural obstruction can be so obtrusive that it essentially creates two separate tracts of land. A landowner is authorized to condemn land when any portion of the entire tract of land has no public or private way. A landowner is only authorized to condemn an access way to a public road or private land under section 6A.4(2) if there is no existing private or public access to the land. An existing right of access to defeat the right of condemnation for an access route must be reasonably adequate for the intended purpose. A court will also consider the ability to change the condition of land to provide for access.

The first inquiry is whether the land in its existing state provides reasonable access. Mere inconvenience does not establish lack of reasonable access. Instead, this standard considers the nature of the obstruction and all other surrounding circumstances, including the intended use of the land and the intended purpose for access. If reasonable access does not exist, the next inquiry is whether the land can be changed by the owner to provide reasonable access. Under the test of proportionality, a natural obstruction makes land privately inaccessible where the cost of making the land reasonably accessible is disproportionate to the value of the land. In many cases, this test will consider the cost of constructing a way across the natural obstruction with the value of the land benefited by the way. In other cases it may be appropriate to also consider the value of the land sought to be condemned. The test does not employ strict guidelines, but relies on the standard of reasonableness, and requires all the facts to be considered.

In considering the first inquiry in this case, Owens acknowledged there was no present access for farm machinery through the creek. Thus, the issue was whether reasonable access could be gained by constructing a crossing through or over the creek at a reasonable cost under the test of proportionality.

The court held that Owens failed to prove that the Brownlies’ property was not land locked. The evidence offered by Owens to support the claim that reasonable access could be gained by making modifications to the creek was speculative. There was no evidence of the cost of constructing a bridge or culvert nor was evidence introduced as to the value of the land west of the creek to compare to the cost of construction. Additionally, the Brownlies offered evidence to create sufficient doubt over the feasibility of the improvements proposed by

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04/03/2007 - Category: Easements - State: IA #2585

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