Saturday, October 3, 2020

Real Estate Concepts Involved In Recent Cases


Agricultural producers and rural landowners often deal with legal issues involving real estate.  That’s to be expected.  Land is often the major asset of a farming or ranching operation, and it is in the open and the action of third parties is often involved. 

Real estate law has many common, well-established legal principles and concepts.  They are frequently on display in the courts.  Real estate matters of importance to rural landowners – it’s the focus of today’s post.

County Can Exercise Eminent Domain For Purpose of Upgrading Road 

Hickman v. Ringgold County, 941 N.W.2d 38 (Iowa Ct. App. 2019)

Eminent domain is the power of a state or the federal government to take private property for public use while requiring "just" compensation to be given to the original owner.  U.S. Constitution, Fifth Amendment.  In some states, the state legislative body can delegate the power to municipalities, government subdivisions, or even to private persons or corporations for the taking of private property for a “public purpose.”  The exercise of this inherent power of government is a concern to rural landowners, and it came up in a recent Iowa case.

In Hickman, the defendant county served a notice of intent to condemn land the plaintiffs owned. The plaintiffs were informed that part of their land was needed for the construction of a new road for the future location of a new concrete batch plant. The plaintiffs argued the proposed condemnation violated Iowa law because it would be solely for the purpose of facilitating the incidental private use of the concrete batch plant. The trial court disagreed and dismissed the plaintiff’s suit.

On appeal, the plaintiffs again argued that the county’s decision to widen and improve the road was solely for the purpose of facilitating the construction and use of the concrete batch plant.  As a result, the plaintiff claimed that proposed condemnation was illegal under Iowa law because it was solely for the purpose of private economic development.  The appellate court held that the county could not rely on an economic development rationale to support its taking of the plaintiffs’ property because of a prior Iowa Supreme Court opinion in Puntenney v. Iowa Utilitie. Board, 928 N.W.2d 829, 844 (Iowa 2019).   However, the appellate court determined that the county could maintain its eminent domain action if it could show that improving the road served a public purpose. On that point, the appellate court noted that the county was statutorily authorized to upgrade the road. In addition, the county supervisor testified that without the condemnation and improvement of the road, the road would have been a hazard and could not have handled heavy truck traffic. Finally, the appellate court held that the county’s need to upgrade the road was a public purpose that supported its exercise of eminent domain over the plaintiffs’ land. 

Moving Cattle Establishes Boundary by Acquiescence

Brewer v. Plagman, 940 N.W.2d 792 (Iowa Ct. App. 2019)

By assumption, a partition fence is located on the property line. In the event a partition fence is not located on the property line, an erroneously located boundary may become the true boundary after a statutorily specified number of years of acquiescence.  The “doctrine of practical location,” as boundary by acquiescence is known, typically arises where, as a result of a dispute, one party occupies to a fence line and the other party acquiesces in that occupation for the required length of time. Another common scenario that gives rise to application of the doctrine is where adjoining landowners know that a particular fence or line in a field is not the true boundary, but do not know where the true boundary is located. After the statutory period of usage of the adjoining tracts in this manner, the fence or field line can become the legal boundary. Boundaries believed to be in error should be surveyed and, if not correctly located, an objection filed before the statutory time period has elapsed.  A boundary by acquiescence matter was before an Iowa court recently. 

In Brewer, the plaintiffs farmed land that had been in the family for nearly 150 years. Over time, parcels of the property were sold to the defendants. The plaintiffs owned two parcels on the northern and southern ends of the land and the defendants owned parcels in between the plaintiffs’ two parcels and directly adjacent to the west. A fenced corridor connected the plaintiffs’ north and south parcels so the plaintiffs could transport cattle from one property to the other. A boundary dispute arose when the defendants’ obtained a survey revealing the boundary between the farms was in between the fences. The plaintiffs sought to quiet title, alleging a boundary by acquiescence along the western fence line. The plaintiffs argued their family had been moving cattle between the two properties for more than a hundred years before the defendants’ bought their land.

The trial court held that the plaintiffs were able to establish a boundary by acquiescence along the western fence line. On appeal, the defendants argued that the trial court permitted inadmissible hearsay, by allowing the plaintiffs to testify about an oral land agreement a parent made that established the western fence line as the new boundary. The appellate court held that although boundaries are usually proven by reference to deeds, statements made by those in the community can often be the only evidence available concerning land boundaries. Further, the appellate court noted that even if it were to disregard the evidence of the oral land agreement, there was sufficient evidence to find that the plaintiffs had established a boundary by acquiescence. The appellate court held that acquiescence exists when both parties acknowledge and treat the line as the boundary. If the acquiescence persists for ten years (the statutory period of time in Iowa), the line becomes the true boundary even though a survey may show otherwise. The appellate court also noted that the evidence showed that the defendant had acquiesced in the plaintiffs’ use of the lane during the time the defendant owned the land. 

No County Road Without Formal Adoption

Reid v. Donithan, No. 2017-CA-001388-MR, 2019 Ky. App. Unpub. LEXIS 758 (Ky. Ct. App. Oct. 25, 2019)

Counties are responsible for county road maintenance.  Generally speaking, a county must maintain a county road in such a manner that protects public safety.  Issues can arise involving such things as road ditches, tree and brush maintenance, water flowage, abutments, and even fences.  Some road may be designated as low maintenance, and others may become abandoned over time for various reasons.  An abandoned rural road was at issue in a Kentucky case last year.

In Reid v. Donithan, the plaintiffs owned a farm that could only be accessed by a road that crosses defendants’ property. The plaintiffs claimed that the road was a county road and, as such, the defendants were not allowed to erect gates across the road. The plaintiffs further asserted that when they had purchased their farm, there was only one gate on the road and the gate remained open during the day.  The plaintiffs also claimed that the county maintained the road. After the defendants bought the neighboring farm, they added three more gates along the roadway. As a result, the county no longer maintained the road, which led to its deterioration. The defendants claimed that the gates were necessary for the use and protection of their property.

The trial court held that the road was not a county road and that one gate could be placed across the road but could only be locked at night. On appeal, the plaintiffs argued that there was significant evidence that the road at issue was a county road. As proof, the plaintiffs showed that the road was listed as a county road in the county’s own road index and the state Department of Transportation had designated the road as a county road. In addition, the plaintiffs argued that the county had maintained the road in the past until the defendants built three additional gates.

The appellate court found that this evidence was inadequate under state law and held that Kentucky statutory law specified that county roads are only those which have been formally accepted by the fiscal court of the county as a part of the county road system. The appellate court noted the plaintiffs’ evidence failed to show that the road had been formally adopted by the county’s fiscal court as a county road. Thus, the road was treated as an abandoned road for which the county had no maintenance or other responsibility.   


Property law issues abound in agriculture.  Today’s brief article is just a sample of how some of the issues arise and how the courts sort them out.

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