                  IN THE COURT OF APPEALS OF IOWA

                                 No. 18-1437
                            Filed August 21, 2019


GREGORY RAGSDALE,
    Plaintiff-Appellant,

vs.

DAVID WIREMAN,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.



      Gregory Ragsdale appeals the district court’s order granting David

Wireman’s motion for summary judgment on a petition for declaratory judgment.

AFFIRMED.




      Robert J. Murphy, Dubuque, for appellant.

      Craig Ament of Ament Law Firm, Waterloo, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.
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VAITHESWARAN, Presiding Judge.

       Richard and Anita Wright owned landlocked property adjacent to property

owned by David Wireman. They filed an application to condemn a strip of land

owned by Wireman and another landowner. The strip, depicted in the following

illustration, would allow them to gain access to their property.




The district court approved the application in 1988.

       Twenty-eight years later, Gregory Ragsdale purchased the Wrights’

property. He sued Wireman, alleging Wireman trespassed on the tract of land that

was subject to the condemnation proceedings. He sought a declaratory judgment

and injunctive relief excluding Wireman and the general public from the tract.

Wireman filed an answer denying Ragsdale’s claims and a counterclaim alleging
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Ragsdale had “no right, estate, lien, or interest in [his] land south of and adjacent

to the roadway created by the condemnation proceeding.” He sought to quiet title

in the land. Wireman also filed a motion for summary judgment, requesting

dismissal of Ragsdale’s action and confirmation “that the subject-matter roadway

is for public use; that ownership of the property is the public, with [Ragsdale] the

responsible steward of the land pursuant to Iowa Code section 471.4(2) (1987).”

Ragsdale filed a resistance in which he asserted, “The roadway property at issue

is not publicly owned or intended for public use,” and he “acquired legal title and

exclusive use to the roadway property through condemnation by and pursuant to

due process of the law.”

       The district court initially denied Wireman’s motion. Wireman filed a motion

to dismiss and sought expanded findings and conclusions. The court treated the

motion as a renewed motion for summary judgment and, after taking judicial notice

of the condemnation action, granted the motion. The court reasoned:

               Section 471.4(2), Code of Iowa 1987, grants upon owners of
       land without a way to the land the right to take private property for
       public use. This section sets forth the location and dimensions of the
       property which may be condemned for public use and rights and
       responsibilities regarding this property after condemnation has been
       completed. Chapter 472, Code of Iowa 1987, provides those
       procedures which must be followed to allow condemnation of private
       land for public use. Although chapters 471 and 472, Code of Iowa
       1987, only provide for the condemnation of private land for public
       use, several of those documents contained in the file regarding the
       condemnation of that real estate in question in this matter refer to the
       creation of an easement for private use. Neither party herein [has
       cited] nor has the court found any legal procedure by which the state
       or an individual can acquire land for private use through the means
       of [e]minent domain.
               ....
               Condemnation[] proceedings regarding the real estate
       described as the East 20 feet in even width of that portion of the
       Northeast Quarter of the Southeast Quarter of 10-90-14 line North of
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       the county road established in 85LD374 and other real estate made
       mention of the acquisition of an easement upon said real estate for
       a driveway. Final notice contained in the condemnation file shows
       that the compensation commissioner’s appraised damage for the
       purposes of a “private driveway” at $150 over the above-described
       real estate.
               Chapter 472, Code of Iowa 1987, does not authorize the
       condemnation commission to create either an “easement for a
       driveway” or a “private driveway.” Chapter 472, Code of Iowa 1987,
       only provides for the condemnation of private property for [] public
       uses and purposes. Section 471.4, Code of Iowa 1987, which
       authorizes a private citizen to conduct proceedings pursuant to
       chapter 472 only allows for the condemnation commission to create
       a public road.
               This court therefore determines that plaintiff’s action for
       declaratory judgment and defendant’s motion for summary judgment
       regarding plaintiff’s action for declaratory judgment should be
       granted. The court further determines that the action of the
       condemnation commission regarding the real estate described
       above created a public way for the purpose of providing that real
       estate now owned by plaintiff be connected with an existing public
       road. The creation of a private driveway or easement was
       unauthorized by chapter 472, Code of Iowa 1987, and therefore no
       such interests in real estate were created by the actions of the
       condemnation commission. The rights and duties of the condemner
       and condemnee or their successors-in-interest are controlled by
       section 471.4(2), Code of Iowa 1987.
               Based upon this finding, the court determine[s] that
       defendant’s motion for summary judgment regarding petitioner’s
       petition for injunction shall be granted and petitioner’s petition for
       injunction should be dismissed.[1]

       On appeal, Ragsdale contends that only he and his guests may traverse

the condemned tract. In his view, neither “[t]he Wiremans, nor anyone else, are

entitled to use the road without the intent to visit the landlocked property as an

invitee or a first responder.” He essentially concedes the absence of genuine

issues of material fact. See Iowa R. Civ. P. 1.981(3). He focuses instead on the




1
  The district court subsequently entered orders confirming that the prior order “completed”
Ragsdale’s action and quieting title in Wireman to the real estate south of the condemned
tract.
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legal issue and asserts the district court erred as a matter of law in concluding the

strip of land could not be condemned for private purposes.

       To the contrary, private property may be condemned solely for public use,

not for private use. Our Constitution says as much, as do our condemnation

statutes. See Iowa Const. art. I, § 18 (“Private property shall not be taken for public

use without just compensation . . . .”); Iowa Code § 6A.4(2) (2017) (“The right to

take private property for public use is hereby conferred . . . [u]pon the owner or

lessee of lands, which have no public or private way to the lands, for the purpose

of providing a public way which will connect with an existing public road.”); id.

§ 471.4(2) (1987) (same). Although the condemnation application made reference

to a “driveway,” “private driveway,” and “easement,” that terminology cannot

convert the access road into anything other than a public way.

       The Iowa Supreme Court reaffirmed this point in Bankhead v. Brown, 25

Iowa 540, 545 (1868). The court there stated, “The constitutional limitation above

quoted, prohibits, by implication, the taking of private property for any private use

whatever, without the consent of the owner.” More recently, the court addressed

the precise question we face here. See In re Luloff, 512 N.W.2d 267, 274 (Iowa

1994). The court stated:

       The present version of section 471.4(2) expressly provides that the
       eminent domain authority granted thereunder is “for the purpose of
       providing a public way . . . which will connect with an existing public
       road.” The legislature has conclusively established the public
       character of the roadway and its judgment in that regard may not be
       re-examined by this court. We thus find no merit in appellant’s
       contention that the taking is for private purposes.

Id.; see also Joseph A. Clark, State Constitutional Takings Jurisprudence, 26

Rutgers L.J. 1243, 1250 (1995) (“[In Luloff, the] court rejected the landowner’s
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claim that the condemnation would amount to a private taking, stating that under

existing case law it made no difference that the owner was the only one using the

road; the character of the way is determined by the right of public use.”); see also

Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa 2000) (“Eminent domain is the

power of a government to take private property for public use conditioned upon the

payment of just compensation.”).

      The district court did not err in concluding the condemned tract of land was

a public tract and in granting Wireman’s motion for summary judgment.

      AFFIRMED.
