                     IN THE COURT OF APPEALS OF IOWA

                                     No. 16-1577
                               Filed January 10, 2018


GARY WEINMAN,
    Plaintiff-Appellant,

vs.

CITY OF NORTH LIBERTY, AMY NIELSEN, COLEEN CHIPMAN, CHRIS
HOFFMAN, ANNIE POLLOCK, TERRY DONAHUE, and BRIAN WAYSON,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Sean W.

McPartland, Judge.




      A landowner challenges a district court ruling upholding the city’s authority

to acquire sewer easements across his property by eminent domain. APPEAL

DISMISSED.



      S.P. DeVolder of The DeVolder Law Firm, Norwalk, and Wallace L. Taylor

of Law Offices of Wallace L. Taylor, Cedar Rapids, for appellant.

      Stephanie L. Hinz and Matthew G. Novak of Pickens, Barnes & Abernathy,

Cedar Rapids, for appellees.




      Heard by Vogel, P.J., and Tabor and Bower, JJ.
                                           2


TABOR, Judge.

       A landowner challenges the authority of the city of North Liberty to take a

sanitary sewer easement over his property by eminent domain.1 Because the

landowner accepted “just compensation” for the taking and the sewer line is

completed, we dismiss his appeal as moot.

       I.     Facts and Prior Proceedings

       Gary Weinman bought seventy acres of land in Johnson County in 1981.

The property is mostly timber but includes about twelve tillable acres. Weinman’s

house and horse corral are centered on the acreage. Muddy Creek runs through

the northeast corner of his land. Across the creek from his house lies a five-acre

field that Weinman restored to natural prairie over the past three decades. The

city of North Liberty’s waste water treatment plant sits about one-hundred yards

from the northern border of Weinman’s property.

       In the fall of 2010, the Iowa City Community School District started an

informal search for a site to construct a new high school. In August 2013, the

school board approved purchasing property east of North Liberty.2 The city sought

help from Fox Engineering to assess how best to provide sanitary sewer services

to the new high school.      After   Fox’s     extensive   review,    the    engineers




1
  Private property may not be taken for public use without just compensation. See U.S.
Const. amend. V; Iowa Const. art. I, § 18. Eminent domain is the term used for the power
of a government entity to take private property for a public use without the owner’s
consent. Comes v. City of Atlantic, 601 N.W.2d 93, 95 (Iowa 1999). Cities are conferred
the right of eminent domain under Iowa Code section 6A.4(6) (2015). Iowa Code chapter
6B sets out the procedures for the condemnation of private property under eminent
domain.
2
  We will refer to North Liberty as “the city.”
                                           3


recommended the city construct a new trunk sewer line that required a temporary

and permanent easement across Weinman’s prairie.

       In July 2014, the city sent Weinman a letter notifying him it proposed to run

a sewer line through his property to serve the new high school. In early November

2014, the city served Weinman with notice of intent, advising if he did not agree to

the easement, the city would proceed with condemnation.             Later that month,

concerned about the disruption to his prairie restoration, Weinman filed a petition

seeking a declaratory judgment to enjoin what he contended was an illegal

condemnation of his property by the city.3

       On January 8, 2015, the city served Weinman with a notice of condemnation

for a thirty-foot-wide sanitary sewer easement and a temporary construction

easement across the northeast corner of his property “for the public purposes of

extending sewer service to newly annexed territory and a proposed public high

school building.” Less than two weeks later, Weinman filed a second petition

challenging the city’s eminent domain authority under Iowa Code section 6A.24

and again seeking a temporary injunction.4 After a hearing in early February, the

district court refused Weinman’s requests for injunctive relief. Weinman did not

file a motion under Iowa Rule of Civil Procedure 1.904(2). Nor did he seek an

interlocutory appeal and stay of the court’s refusal to restrain construction until the



3
  Weinman sued the city and the members of the city council. For convenience, we will
refer to all of the defendants as “the city.”
4
  Our supreme court recently noted: “The Code does not state whether the compensation
commission should still meet if an owner of property files an action under section
6A.24(1).” Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep’t of Transportation, 891
N.W.2d 220, 224 (Iowa 2017) (leaving question open for another day because landowner
did not file such an action).
                                             4


court held a hearing and reached a final decision on the merits of his challenge to

the city’s eminent domain authority.

       Contemporaneously the separate but related condemnation-compensation

process moved forward. In mid-February, the county compensation commission

held a hearing in the city’s condemnation action and awarded Weinman $70,000

for the permanent sewer easement across his property. Contending the award

was excessive (specifically, three times the appraised value of the easement), the

city appealed to the district court. Weinman requested a jury trial, and the jury

awarded him $25,000.5

       In May 2015, the district court granted Weinman’s motion to consolidate his

two petitions challenging the city’s eminent domain authority and set a trial for one

year in the future.     Meanwhile, in the summer of 2015, the city completed the

sewer project. In light of the project’s completion, in February 2016, Weinman filed

an amended and substituted petition alleging he suffered damages when the city

“cut down trees on the property and destroyed a portion of the natural prairie.” He

asked for a monetary award to compensate him for those damages. In early May

2016, the district court heard evidence in Weinman’s consolidated lawsuit.

Weinman asked the district court to declare the city’s condemnation of his property




5
  The district court entered judgment on the verdict in September 2016. The court also
ordered the city to provide a check, and the city issued a check to Weinman for
$25,241.91, which included interest. Weinman refused to accept the check, asserting he
did not want to “waive his right to appeal.” While his appeal of the condemnation-
compensation case was pending, the parties filed motions concerning the check. The
supreme court’s January 3, 2017 order granted “a remand for the limited purpose of
allowing [the city] to seek a district court order directing that the funds be deposited with
the district court clerk in an interest bearing account.”
                                          5


illegal and to assess damages he allegedly incurred as a result of the city’s illegal

trespass.

       On August 30, 2016, the district court issued its order rejecting Weinman’s

challenge to the city’s authority to condemn his property and concluding “the city’s

sewer site selection here was for the purpose of public improvement.”             On

September 20, 2016, Weinman filed notices of appeal from both the August 30

order at issue here (combined Nos. CVCV077032 and LACV076900) and the

related September 2016 judgment in the condemnation-compensation case

(CVCV077132).

       Weinman’s appeal of the condemnation-compensation case proceeded

more quickly, and our court affirmed the jury’s award of $25,000 to Weinman.6 See

City of N. Liberty v. Weinman, No. 16-1576, 2017 WL 1278323 (Iowa Ct. App. April

5, 2017). Weinman did not seek further review from our decision.7 Instead

Weinman took the funds the city had deposited with the clerk of the district court

and filed a satisfaction in full on June 15, 2017, stating he “hereby acknowledges

full and complete payment by the City of North Liberty, Iowa, of the judgment

entered against the City in this action. Upon said payment, [Weinman] hereby

satisfies said judgment of record.”

       Our court scheduled oral arguments in Weinman’s remaining appeal

challenging the city’s authority to condemn his land and seeking damages for a




6
  Weinman did not ask to consolidate his appeals or to stay the condemnation-
compensation case while the instant appeal challenging the city’s authority to condemn
his land was decided.
7
  Procedendo issued on May 9, 2017.
                                          6


trespass caused by the alleged illegal condemnation.8 In response to a request

by this court, both parties filed supplemental briefs addressing whether this appeal

was moot.




8
  Weinman asked the Iowa Supreme Court to retain this appeal, but the court transferred
the matter to our court.
                                           7


       II.    Scope and Standards of Review

       The parties agree we would review the merits of Weinman’s appeal for the

correction of legal error.   See Clarke Cty. Reservoir Comm’n v. Robins, 862

N.W.2d 166, 171 (Iowa 2015).

       III.   Is This Appeal Moot?

       But we must first decide whether this appeal presents a justiciable issue.

See Homan v. Branstad, 864 N.W.2d 321, 328 (Iowa 2015) (explaining it is

“our duty on our own motion to refrain from determining moot questions”).

Specifically, do the facts of Weinman’s acceptance of the $25,000 in “just

compensation” in the related condemnation action and the completed installation

of the sewer line render moot this separate challenge to the city’s authority to

exercise its powers of eminent domain?

       Our supreme court recently discussed the question of mootness in

condemnation actions. See Clarke Cty. Reservoir Comm’n, 862 N.W.2d at 173.

The court determined an appeal on the issue of the county’s authority to condemn

was not moot because the proposed reservoir had not been built and “it was not

too late to decide the issue presented.” Id. at 174. The Clarke County court

contrasted Lewis Investments., Inc. v. City of Iowa City, 703 N.W.2d 180, 183–84

(Iowa 2005), where the court rejected a mootness challenge while noting, although

the city of Iowa City had deposited the condemnation award, the city had not yet

sold the property to a third party so the court could still restore the parties to their

former positions, with Welton v. Iowa State Highway Commission, 227 N.W. 332,

333 (Iowa 1929), where the court dismissed the appeal as moot while noting the
                                           8


orchard had been “taken for highway purposes and the paving laid.” 862 N.W.2d

at 173–74.

       In its supplemental brief, the city asks us to dismiss this appeal as moot

because, as in Welton, it is too late to restore the parties to their original positions.

The city points out (1) Weinman did not seek interlocutory appeal of the court’s

denial of temporary injunctive relief and (2) Weinman accepted the damages the

city had deposited as “full satisfaction.” For his part, Weinman argues this appeal

presents a live controversy because his amended petition seeks trespass

damages, which he asserts would compensate him for losses—such as the

destruction of trees and prairie—distinct from the compensation the city paid for its

easement through the process of eminent domain.9

       We are more persuaded by the city’s argument. After this court rejected his

appeal of the condemnation award, Weinman accepted the compensation and filed

a satisfaction of judgment—unlike the challenger in Lewis who left the city’s deposit

untouched while his challenge to its authority to condemn his property was

resolved on the merits. See 703 N.W.2d at 184 (rejecting city’s claim the case was

moot “because it has deposited the condemnation award and has taken

possession of the property” where nothing in the record prevented the court from

restoring “the parties to their former position”). Additionally, Weinman did not try


9
  Weinman cites trespass cases but provides no Iowa authority showing his damages for
an alleged trespass could exceed his already-accepted condemnation damages. See
Brown v Davis Cty., 195 NW 363, 366 (Iowa 1923) (noting landowner challenging
condemnation had a “more complete and adequate remedy” in a condemnation
proceeding than in a trespass proceeding). The cases Weinman cites regarding damages
for negligent construction in the context of condemnation are easily distinguishable. See
Iowa Power & Light Co. v. Stortenbecker, 334 N.W.2d 326, 332 (Iowa 1983); King v. Iowa
Midland R.R. Co., 34 Iowa 458, 459 (Iowa 1872).
                                         9


to appeal the denial of a temporary injunction and seek a stay, as has been done

by others challenging a condemnation. See, e.g., Stellingwerf v. Lenihan, 85

N.W.2d 912, 913–916 (Iowa 1957) (allowing interlocutory appeal of district court

order and then staying all condemnation proceedings “until case as to permanent

injunction is tried and decided” where challenger alleged city’s taking of land for a

park was “a subterfuge” to condemn land for other purposes).

       By cashing the condemnation-compensation award, Weinman grudgingly

accepted the city’s taking as legitimate and cannot now be heard to make an

inconsistent argument in this appeal that the city was unlawfully trespassing on his

land. Further, Weinman’s decision not to seek an interlocutory appeal and stay of

the condemnation process once the district court denied Weinman’s request for

temporary injunctive relief demonstrated his willingness to live with the

consequences of the taking and the completed construction. Under the totality of

these specific circumstances, it is “too late” for this court “to decide the issue

presented.” Clarke Cty. Reservoir Comm’n, 862 N.W.2d at 174. Weinman’s

appeal is moot. See id. Without considering the merits, we dismiss the appeal.

       APPEAL DISMISSED.
