                  IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0044
                              Filed April 27, 2016


MIDDLE RIVER FARMS, LLC,
     Plaintiff-Appellee,

vs.

LADONNA ANTRIM and
TERESA ANTRIM,
     Defendants-Appellants.
________________________________________________________________

      Appeal from the Iowa District Court for Adair County, Jeffrey D. Farrell,

Judge.



      Landlocked property owners appeal from an order selecting route in

declaratory judgment action related to private condemnation proceeding.

AFFIRMED.




      Laura N. Martino of Grefe & Sidney, P.L.C., Des Moines, for appellants.

      Matthew J. Hemphill of Bergkamp, Hemphill & McClure, P.C., Adel, for

appellee.



      Heard by Danilson, C.J., and Mullins and McDonald, JJ.
                                         2



MCDONALD, Judge.

       Ladonna and Teresa Antrim filed a private condemnation action against

an adjoining property owner, Middle River Farms, to obtain access to a

landlocked parcel of property.      In response, Middle River Farms filed this

declaratory judgment action, seeking declaratory and injunctive relief.         The

parties agreed the district court should select the condemnation route pursuant to

the statutory criteria set forth in Iowa Code section 6A.4 (2013). The district court

selected Middle River Farms’ proposed condemnation route rather than the

Antrims’ proposed condemnation route. The Antrims timely filed this appeal.

                                         I.

       For the purposes of grounding the discussion, the exhibits below identify

the parcels at issue and the proposed condemnation routes.
                                           3




      The top image shows section 18, Harrison Township, Adair County, Iowa.

The Antrims purchased the southernmost forty acres at issue in 1953. The forty-

acre parcel is split by the Middle River. The majority of the property is north of

the Middle River; however, there is a southern portion rendered inaccessible

from the northern portion because of the Middle River. See Owens v. Brownlie,

610 N.W.2d 860, 867-69 (Iowa 2000) (concluding “natural obstruction over

private land makes a portion of the land inaccessible for the purposes of

condemnation”). The bottom image shows the inaccessible property in more

detail and the parties’ proposed routes.

      Until 2012, the property across which the Antrims traveled to reach the

inaccessible property was owned by the Childress family.        The Childresses

allowed the Antrims to access the inaccessible portion of the Antrims’ property by

following a route along the tree line at the north side of the field (marked as

Alternate 3). Jack Childress left a grassy strip approximately ten to twelve feet
                                          4



wide along the tree line for the Antrims to access their land south of the Middle

River.

         Prior to 2000, the Antrims raised cattle on the landlocked parcel. Since

2000, the Antrims leased the parcel to various people, most recently Glen Jones,

who kept cattle on the land until about 2006 or 2007. The Antrims also rented

the inaccessible portion to two different people for recreational hunting. Teresa

Antrim told the renters to access the property the same way the Antrims had,

along the tree line at the north side of the Childresses’ property (alternate 3).

         Members of the Sackett family leased and farmed the Childress property

for many years. Sometime in the early aughts, Richard and Dan Sackett, father

and son, formed Middle River Farms, L.L.C. Middle River Farms leased and

farmed the Childress land until 2012, when they purchased it from the

Childresses. Of the 120 acres owned by Middle River Farms, approximately 76

acres are tillable; the rest is pasture or timber. Middle River Farms plants row

crop to the tree line on the north side of the property without leaving a grassy

strip along the tree line for access to the Antrims’ parcel. The evidence showed

they had been doing this since 2000. When the Antrims asked for access along

the route previously used, Richard Sackett said, “Nope, I planted clear to the

edge.”

         In August 2012 the Antrims decided to sell the landlocked parcel. They

first offered it to the Sacketts but received no response. In 2013, the Antrims

sold the property to a third party for $88,000, contingent upon demonstrating
                                        5



access to the property by easement. When the Antrims could not obtain an

easement from the Sacketts, the contingent sale fell through.

       After the failure of the sale, the Antrims filed a private condemnation

action pursuant to Iowa Code chapter 6A.4. Middle River Farms responded by

filing this action for declaratory judgment. The parties agreed the district court

should select the condemned public way. The parties proposed three access

routes, as identified in the above exhibit. The Antrims favored route three, the

route they had used historically. Middle River Farms favored route one because

it provided direct access to the inaccessible property without the loss of crop

ground. At trial, the Antrims conceded route two was not feasible because it

would run through the middle of Middle River Farms’ row crop field. The district

court determined route one was the most feasible route.

                                        II.

       The parties disagree on the standard of review.          The Antrims assert

review is de novo. Middle River Farms asserts review is for the correction of

legal error. Generally, the standard of review in a declaratory judgment action is

determined by the manner of trial in the district court. See City of Riverdale v.

Diercks, 806 N.W.2d 643, 651 (Iowa 2011). The mere fact the petition was filed

in equity does not control. See Passehl Estate v. Passehl, 712 N.W.2d 408, 413

(Iowa 2006). “[W]e consider the pleadings, relief sought, and nature of the case

[to] determine whether a declaratory judgment action is legal or equitable.” Id. at

414.   The only issue presented at trial in this matter was selection of the

condemnation route according to statutory criteria, a legal issue. The district
                                          6



court ruled on objections, normally a “litmus test” or “hallmark” for determining if

an action is tried at law.1 See id. at 414 n.6; see also Sloun v. Agans Bros. Inc.,

778 N.W.2d 174, 178 (Iowa 2010). The district court’s decision being appealed

is entitled “Findings of Fact, Conclusions of Law, and Judgment” instead of

“decree.” See Sutton v. Iowa Trenchless, L.C., 808 N.W.2d 744, 748 (Iowa Ct.

App. 2011). It is important to note the case before us is not an appeal from a

private condemnation proceeding; instead, this is an appeal from a declaratory

judgment action filed in response to a private condemnation proceeding. Given

the foregoing, we conclude the case was tried at law and our review is for the

correction of legal error. See Iowa R. App. P. 6.907; City of Riverdale, 806

N.W.2d at 652. The district court’s findings are binding on us if supported by

substantial evidence. See Iowa R. App. P. 6.904(3)(a). Even though we review

this case for the correction of legal error based on the manner of trial, we would

reach the same result on de novo review.

                                         III.

       “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).” Green v. Wilderness Ridge, L.L.C., 777 N.W.2d 699, 702

(Iowa 2010). Iowa Code section 6A.4(2) provides, in relevant part:

        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


1
  This factor is less significant when “the objections were minor and did not have a
significant effect on the proceedings.” Passehl, 712 N.W.2d at 414; see Horsfield
Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 452 (Iowa 2013).
                                         7



       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.

To meet the statutory criteria, the proposed route must be “(1) located adjacent

to a division, subdivision, or forty line and be the nearest feasible route to an

existing public road; or (2) along a route established for ten years or more by (a)

an easement or (b) use and travel by the owner of the property and the general

public.” Finnegan v. Dickson, No. 14-0143, 2015 WL 405979, at *4 (Iowa Ct.

App. Jan. 28, 2015); see In re Luloff, 512 N.W.2d 267, 272 (Iowa 1994).

                                         A.

       We first address the burden of proof.         Middle River Farms sought

declaratory and injunctive relief. “The burden of proof in a declaratory judgment

action is the same as in an ordinary action at law or equity. The plaintiff bringing

the action has the burden of proof, even if a negative declaration is sought.”

Owens, 610 N.W.2d at 866 (internal citations omitted). The supreme court has

“previously determined that the burden of proof in an action to challenge the

authority of the condemning entity to condemn land rests with the landowner

whose land is sought to be condemned.” Id. Therefore, the burden of proof rests

on Middle River Farms.

                                         B.

       The Antrims first contend route three should have been selected because

it had been “established for a period of ten years or more . . . by use and travel to

and from the property by the owner and the general public.”             Iowa Code

§ 6A.4(2)(b).    The district court concluded there was “no evidence that the
                                          8



general public used any route to travel to the landlocked property” and the

statutory criteria were thus not satisfied. We conclude the district court’s findings

are supported by substantial evidence and its conclusions are not erroneous.

       The statute does not define the term “general public.” The Antrims cite

Phillips v. Watson, 18 N.W. 659, 661 (Iowa 1884), in support of the assertion

their renters were members of the public. Phillips related to the characterization

of a route as “public” or “private” and not with the classification of the users of the

route. 18 N.W. at 160-62. It is inapplicable here. In Good v. Iowa Civil Rights

Commission, 368 N.W.2d 151, 155-56 (Iowa 1985), the court discussed the

meaning of “general public” within the context of the Iowa Civil Rights Act. Its

discussion is informative. In that case, the court concluded the term “general

public” had an expansive meaning encompassing the entire public, as opposed

to “the public,” which could “mean any group or segment, however characterized,

of the aggregate of the citizens of a political entity.” Good, 368 N.W.2d at 156.

In the context of this statute, we conclude the term “general public” should have a

similarly expansive meaning. In this case, the record shows the only persons

who used the route were owners and tenants of the landlocked property. This

does not satisfy the “general public” requirement. See Luloff, 512 N.W.2d at 272

(holding testimony showing past use of access route by “hunters, mushroom

hunters, and wood gatherers” was insufficient to establish use by the general

public).

       Furthermore, even if usage by the Antrims and their tenants satisfied the

“general public” criterion, Middle River Farms established there has not been use
                                           9



for ten years or more. The evidence showed Middle River Farms planted crop to

the tree line for a number of years prior to this litigation without leaving an

accessible route. The testimony showed the route had not been used in some

time. While this may have been a route the Antrims used in the distant past, it is

not a route used with any frequency in the last ten years. The district court’s

findings are supported by substantial evidence and without legal error.

                                           C.

       The Antrims next contend the district court erred in not selecting their

proposed route three because it was “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.” Iowa Code § 6A.4(2)(b); see Luloff, 512 N.W.2d

at 272 (“In the absence of a route previously used for ten or more years by the

property owner and the general public, the requirement that the route proceed

adjacent to a division, subdivision, or ‘forty’ line was triggered.”).

       The first statutory requirement is the route “shall be located on a division,

subdivision or ‘forty’ line, or immediately adjacent thereto.”           Iowa Code

§ 6A.4(2)(b); Luloff, 512 N.W.2d at 272 (noting the court must first consider

whether the route is along or adjacent to a “division, subdivision, or ‘forty’ line”).

Chapter 6A does not define these terms. In chapter 354 on Platting—Division

and Subdivision of Land, and chapter 355 on Standards for Land Surveying,

“division” is defined as “dividing a tract or parcel of land into two parcels of land

by conveyance or for tax purposes.” Iowa Code §§ 354.2(6); 355.1(2). The term

“subdivision” is defined as “a tract of land divided into three or more lots.” Id. §§
                                          10



354.2(17); 355.1(10); see City of Cedar Rapids v. James Props., Inc., 701

N.W.2d 673, 676 (Iowa 2005). A “forty” line is the boundary of a forty-acre parcel

of land, which is one-quarter of one-quarter of a section of land under the

government survey system. See Hanson v. Iowa State Commerce Comm’n, 227

N.W.2d 157, 159 (Iowa 1975); Finnegan, 2015 WL 405979, at *4; see also Iowa

Code § 354.2(7) (defining “Forty-acre aliquot part” as “one-quarter of one-quarter

of a section”). In Finnegan, this court concluded “the legislature intended the

terms, ’division, subdivision or forty line,’ to mean where land has been divided,

subdivided, or on the border of a forty-acre tract of land.” 2015 WL 405979, at

*6.

       The selection of Middle River Farms’ proposed route rather than the

Antrims’ proposed route was not erroneous because only Middle River Farms’

proposed route follows or is immediately adjacent to a division, subdivision, or

forty line.   Route one runs closely parallel to the division line between the

southeast quarter of the section, owned by Middle River Farms, and the

southwest quarter of the section, owned by a member of the Sackett family,

individually. The eastern half of route three runs roughly along what would be a

division or forty line if the northeast quarter of the southeast quarter of the section

were divided from the remaining land owned by Middle River Farms. However,

the southeast quarter of the section is undivided (except for the northwest quarter

of the southeast quarter, which is the inaccessible land at issue); therefore, route

three does not run along any existing division, subdivision, or forty line. Route

one is thus the only route that fits the statutory requirement. See id. (holding
                                         11



“proposed access road approved by the district court, which is not on a division,

subdivision, or forty line, is not permissible under section 6A.4(2)”).

       Even if both routes were along or immediately adjacent to a division,

subdivision, or forty line, there is substantial evidence that alternative one is the

nearest feasible route to a public road. The legislature has not defined “nearest

feasible route,” but our supreme court considered the issue in Green, 777

N.W.2d at 703-04. The court noted:

       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.” At the core of
       the definition of “feasible,” therefore, are the notions of
       reasonableness 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. 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.

Id.   (emphasis in original) (internal citations omitted).         Considering land

acquisition costs does not usurp the function of the compensation commission

established in section 6B.4 “to assess the damages to all property to be taken”

once an action for private condemnation has been granted. Id. at 704.

       With respect to the costs of construction, the preparation of route one is

undoubtedly more expensive, but the costs are roughly comparable. Route one,
                                        12



although shorter, is more difficult to construct because the grades on the route

reach twenty-three to twenty-five percent. See Green, 777 N.W.2d at 703 n.1

(“Length of the available routes is . . . a factor to be considered in selecting the

nearest feasible route.”). Further, lower portions of the route would need culverts

and fill to prevent water from washing out the route. In contrast, route three is

fairly level. Both routes would need a layer of road rock to make them passable

in all weather. One estimate for the cost of preparing route three was $12,000.

The same expert estimated the cost of preparing route one at $40,000. Middle

River Farms submitted an expert’s estimate covering only the northern one-third

of route one at $2540. The $2540 estimate encompassed only grading and

installing culverts and did not include road rock. The district court noted the

higher estimate was based on reducing the grade of route one to ten percent and

was “likely high” because the grade did not need to be reduced that dramatically

to make the road usable.      The court found the actual cost would likely fall

between the two estimates, or roughly $20,000. There is substantial evidence in

support of this finding.

       In addition to considering the costs of preparing the different routes, the

district court also assessed the impact of the routes on Middle River Farms’

property. See id. at 703-04 (stating the district court should assess damage to

affected property). Route one does no damage to Middle River Farms’ property

because it takes no land out of production. In contrast, the evidence showed

route three would result in a permanent loss of approximately 1.1 acres of crop

land, or just under 1.5% of Middle River Farms’ total tillable land. The district
                                       13



court considered this a “permanent and significant impact” to Middle River Farms’

use of its land. This finding is supported by substantial evidence. The district

court’s conclusion that the permanent impact to Middle River Farms, in terms of

crop loss, was more significant than the one-time construction costs and made

route one the “nearest feasible” route was not erroneous.

      The Antrims contend route one cannot be a condemned public way

because the statute requires the “nearest feasible route” to access an “existing

public road.” Relying on Owens, they argue Middle River Farms’ route connects

only to a class B road, which is not “reasonably adequate for the intended

purpose.” 610 N.W.2d at 868. In Owens, the court considered the question of

whether a landowner may condemn an access route over land of another if it is

possible to gain access through the landowner’s own land. Id. at 867. In Owens,

the “reasonably adequate for the intended purpose” standard was used to

determine whether the landowner had access to the allegedly inaccessible

property, i.e. whether the parcel was landlocked, and has no relevance to

whether the proposed condemned route connects to an “existing public road.” Id.

at 868-69.

      The issue is resolved by the plain language of the statute and controlling

case law. The statute requires only that the access road connect to an “existing

public road.” Iowa Code § 6A.4(2)(b). Route one connects to and gives access

to 190th Street, a class B road. A class B road is an existing public road. See

Iowa Code § 309.57 (setting forth the A, B, and C classification of county roads).

This conclusion is supported by Green. In that case, the court noted that a class
                                        14



B road is a “public road” within the meaning of section 6A.4(2). See Green, 777

N.W.2d at 703. The Green court concluded, however, that the road was not an

“existing public road” because the testimony showed the road “exist[ed] only on

paper and not in reality.” 777 N.W.2d at 703. In other words, there was no

actual road. There is no such evidence here.

      We conclude the district court did not err in selecting route three as the

condemned public way. Of the parties’ proposed routes, it is the only route on or

immediately adjacent to a statutorily-required line. It is also the nearest feasible

route to an existing public road.    The Antrims’ proposed route would cause

permanent economic loss to Middle River Farms.

                                        IV.

      We affirm the judgment of the district court.

      AFFIRMED.

      Mullins, J., concurs; Danilson, C.J., dissents.
                                        15



DANILSON, Chief Judge. (dissenting).

       I respectfully dissent.   The standard of review applied by the Iowa

Supreme Court in two cases with similar procedural postures, Owens v.

Brownlie, 610 N.W.2d 860 (Iowa 2000), and Green v. Wilderness Ridge, L.L.C.,

777 N.W.2d 699 (Iowa 2010), was de novo review. Although I concede there are

some factors existing in this action suggesting the review should be for correction

for errors at law, at the heart of this action is an issue where equitable

considerations determine its outcome. I also note the petition sought “such other

and further relief as this Court may deem equitable and appropriate.” Much like a

contract action that is generally reviewed for errors at law, I believe issues

relative to a private condemnation should generally be reviewed de novo.

Accordingly, I disagree with the majority’s determination of the standard of review

to apply in this case.

       Upon a de novo review, I would conclude Middle River has not met its

burden of proof.     I think the substantial grade and the substantial cost in

development of the route proposed by Middle River, along with the route’s

access, which is limited to a class “B” road, result in Middle River’s proposed

route—route one—not being a feasible route, and it does not provide reasonable

access. Green, 777 N.W.2d at 703-05 (concluding a level “B” road only existed

on paper and not in reality and considering the cost of development of the route

in determining “the nearest feasible route” as provided in Iowa Code section

6A.4(2)).
