Iowa Sierrans:

Yesterday, the Iowa Supreme Court issued a decision overturning the
provisions of the 'Hog Lot Law' in IowaŠ

[NOTE: The decision is too long to conform to the rules of this LISTSERVer,
so I had to split it into three parts, labeled 'Nuisance Protection
Overturned - Pt 1', 'Nuisance Protection Overturned - Pt 2' and 'Nuisance
Protection Overturned - Pt 3'. You should have received all three.] This is
part 2.

Lyle

http://www.judicial.state.ia.us/decisions/supreme/opinions/962276BO.asp

[Part 2]

B. The relevant constitutional and statutory provisions.

1. The constitutional provisions. The Fifth Amendment to the Federal
Constitution pertinently provides that " [n]o person shall be . . .
deprived of life, liberty, or property without due process of law; nor
shall private property be taken for public use, without just compensation."
The Fourteenth Amendment to the Federal Constitution prohibits a state from
"depriving any person of life, liberty, or property without due process of
law." The Fourteenth Amendment makes the Fifth Amendment applicable to the
states and their political subdivisions. Chicago B. & Q. R.R. v. City of
Chicago, 166 U.S. 226, 234-35, 17 S. Ct. 581, 584, ____L. Ed. ____, ____
(1897).

Article I, section 9 of the Iowa Constitution pertinently provides that "no
person shall be deprived of life, liberty, or property, without due process
of law." Article I, section 18 of the Iowa Constitution provides:

Eminent domain-drainage ditches and levees. Private property shall not be
taken for public use without just compensation first being made, or secured
to be made to the owner thereof, as soon as the damages shall be assessed
by a jury.

2. The statutory provisions. Iowa Code section 352.6 sets forth the
procedure for obtaining an agricultural area designation. The application
is to the county board of supervisors. Iowa Code § 352.6. This provision
also prescribes the conditions under which a county board of supervisors
may designate farmland as an agricultural area. Id. An agricultural area
includes, among other activities, raising and storing crops, the care and
feeding of livestock, the treatment or disposal of wastes resulting from
livestock, and the creation of noise, odor, dust, or fumes. Iowa Code §
352.2(6).

Iowa Code section 352.11(1)(a) provides the immunity from nuisance suits:

A farm or farm operation located in an agricultural area shall not be found
to be a nuisance regardless of the established date of operation or
expansion of the agricultural activities of the farm or farm operation.
This paragraph shall apply to a farm operation conducted within an
agricultural area for six years following the exclusion of land within an
agricultural area other than by withdrawal as provided in section 352.9.

The immunity does not apply to a nuisance resulting from a violation of a
federal statute, regulation, state statute, or rule. Iowa Code §
352.11(1)(b). Nor does the immunity apply to a nuisance resulting from the
negligent operation of the farm or farm operation. Id. Additionally, there
is no immunity from suits because of an injury or damage to a person or
property caused by the farm or farm operation before the creation of the
agricultural area. Id. Finally, there is no immunity from suit "for an
injury or damage sustained by the person [bringing suit] because of the
pollution or change in condition of the waters of a stream, the overflowing
of the person's land, or excessive soil erosion into another person's land,
unless the injury or damage is caused by an act of God." Id.

Iowa Code section 657.1 defines nuisance and provides for civil remedies:

Whatever is injurious to health, indecent, or unreasonably offensive to the
senses, or an obstruction to the free use of property, so as essentially to
unreasonably interfere with the comfortable enjoyment of life or property,
is a nuisance, and a civil action by ordinary proceedings may be brought to
enjoin and abate the same and to recover damages sustained on account
thereof.

Iowa Code section 657.2 is a laundry list of the conduct or conditions that
are deemed to be a nuisance. Those that are relevant to nuisances resulting
from farming and farm operations include:

1. The erecting, continuing, or using any building or other place for the
exercise of any trade, employment, or manufacture, which, by occasioning
noxious exhalations, unreasonably offensive smells, or other annoyances,
becomes injurious and dangerous to the health, comfort, or property of
individuals or the public.

2. The causing or suffering any offal, filth, or noisome substance to be
collected or to remain in any place to the prejudice of others.

. . . .

4. The corrupting or rendering unwholesome or impure the water of any
river, stream, or pond, or unlawfully diverting the same from its natural
course or state, to the injury or prejudice of others.

Iowa Code § 657.2.

Our cases recognize that the statutory definition of nuisance does not
"modify the common-law's application to nuisances." Weinhold v. Wolff, 555
N.W.2d 454, 459 (Iowa 1996). Rather, the statutory provisions "are skeletal
in form, and [we] look to the common law to fill in the gaps." Id.

There are two kinds of nuisances: public and private. We cited the
differences between the two in Guzman v. Des Moines Hotel Partners:

A public or common nuisance is a species of catchall criminal offenses,
consisting of an interference with the rights of a community at large. This
may include anything from the obstruction of a highway to a public gaming
house or indecent exposures. A private nuisance, on the other hand, is a
civil wrong based on a disturbance of rights in land. . . . The essence of
a private nuisance is an interference with the use and enjoyment of land.
Examples include vibrations, blasting, destruction of crops, flooding,
pollution, and disturbance of the comfort of the plaintiff, as by
unpleasant odors, smoke, or dust.

489 N.W.2d 7, 10 (Iowa 1992) (citations omitted). We are dealing here with
private nuisances.

To fully understand the issues we are about to discuss, we think it would
aid our analysis to distinguish between the concepts of "private nuisance"
and "trespass." We made this distinction in Ryan v. City of Emmetsburg:

As distinguished from trespass, which is an actionable invasion of
interests in the exclusive possession of land, a private nuisance is an
actionable invasion of interests in the use and enjoyment of land. Trespass
comprehends an actual physical invasion by tangible matter. An invasion
which constitutes a nuisance is usually by intangible substances, such as
noises or odors.

232 Iowa 600, 603, 4 N.W.2d 435, 439 (1942).

In Ryan, we also distinguished between the concepts of "nuisance" and
"negligence." Negligence is a type of liability-forming conduct, for
example, a failure to act reasonably to prevent harm. Id. In contrast,
nuisance is a liability- producing condition. Id. Negligence may or may not
accompany a nuisance; negligence, however, is not an essential element of
nuisance. Id. If the condition constituting the nuisance exists, the person
responsible for it is liable for resulting damages to others even though
the person acted reasonably to prevent or minimize the deleterious effect
of the nuisance. Id.

C. The framework of analysis. As the neighbors point out, the federal and
state constitutional provisions we set out earlier provide the following
framework for a "takings" analysis: (1) Is there a constitutionally
protected private property interest at stake? (2) Has this private property
interest been "taken" by the government for public use? and (3) If the
protected property interest has been taken, has just compensation been paid
to the owner? The neighbors contend there is a constitutionally protected
private right which the Board has taken from them without paying just
compensation. That taking, the neighbors contend, results from the Board's
approval of the agricultural area triggering the nuisance immunity in
section 352.11(1)(a). The Board and the applicants concede the neighbors
have received no compensation so we need not concern ourselves with the
third step of the analysis: Has just compensation been paid to the owner?

1. Is there a constitutionally protected private property interest at stake?

a. Does the immunity provision in section 352.11(1)(a) against nuisance
suits create a property right? Textually, the federal and Iowa
Constitutions prohibit the government from taking property for public use
without just compensation. Property for just compensation purposes means
"the group of rights inhering in the citizens' relation to the physical
thing, as the right to possess, use and dispose of it." United States v.
General Motors Corp., 323 U.S. 373, 378, 65 S. Ct. 446, 451, 89 L. Ed. 311,
318 (1945). In short, property for just compensation purposes includes
"every sort of interest the citizen may possess." Id.; see also Liddick v.
Council Bluffs, 232 Iowa 197, 221-22, 5 N.W.2d 361, 374 (1942) ("[P]roperty
is not alone the corporeal thing, but consists also in certain rights
therein created and sanctioned by law, of which, with respect to land, the
principal ones are the rights of use and enjoyment. . . .").

State law determines what constitutes a property right. Webb's Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161, 101 S. Ct. 446, 451, 66 L.
Ed. 2d 358, 362 (1980). Thus, in this case, Iowa law defines what is
property.

The property interest at stake here is that of an easement, which is an
interest in land. Over one hundred years ago, this court held that the
right to maintain a nuisance is an easement. Churchill v. Burlington Water
Co., 94 Iowa 89, 93, 62 N.W. 646, 647 (1895). Churchill defines an easement
as

a privilege without profit, which the owner of one neighboring tenement
[has] of another, existing in respect of their several tenements, by which
the servient owner is obliged to suffer, or not do something on his own
land, for the advantage of the dominant owner.

Id.

Churchill's holding that the right to maintain a nuisance is an easement
and its definition of an easement are consistent with the Restatement of
Property:

An easement is an interest in land which entitles the owner of the easement
to use or enjoy land in the possession of another. . . . It may entitle him
to do acts which he would otherwise not be privileged to do, or it may
merely entitle him to prevent the owner of the land subject to the easement
from doing acts which he would otherwise be privileged to do. An easement
which entitles the owner to do acts which, were it not for the easement, he
would not be privileged to do, is an affirmative easement. . . . [The
easement] may entitle [its] owner to do acts on his own land which, were it
not for the easement, would constitute a nuisance.

Restatement of Property § 451 cmt. a, at 2911-12 (1944) (emphasis added).

Another feature of easements is that easements run with the land:

The land which is entitled to the easement or service is called a dominant
tenement, and the land which is burdened with the servitude is called the
servient tenement. Neither easements [n]or servitudes are personal, but
they are accessory to, and run with, the land. The first with the dominant
tenement, and the second with the servient tenement.

Dawson v. McKinnon, 226 Iowa 756, 767, 285 N.W. 258, 263 (1939).

Thus, the nuisance immunity provision in section 352.11(1)(a) creates an
easement in the property affected by the nuisance (the servient tenement)
in favor of the applicants' land (the dominant tenement). This is because
the immunity allows the applicants to do acts on their own land which, were
it not for the easement, would constitute a nuisance. For example, in their
farming operations the applicants would be allowed to generate "offensive
smells" on their property which without the easement would permit affected
property owners to sue the applicants for nuisances. See Iowa Code §
352.2(6); see also Buchanan v. Simplot Feeders Ltd. Partnership, 952 P.2d
610, 615 (Wash. 1998) (holding that Washington's Right-to-Farm Act gives
farm quasi easement, against urban developments that subsequently locate
next to farm, to continue nuisance activities) (dictum).

b. Is an easement a protected property right subject to the requirements of
the just compensation clauses of the federal and Iowa Constitutions?
Easements are property interests subject to the just compensation
requirements of the Fifth Amendment to the Federal Constitution. United
States v. Welch, 217 U.S. 333, 339, 30 S. Ct. 527, 527, 54 L. Ed. 787, 788
(1910). Easements are also property interests subject to the just
compensation requirements of our own Constitution. Simkins v. City of
Davenport, 232 N.W.2d 561, 566 (Iowa 1975).

c. Has the easement resulted in a taking?

(1) Takings jurisprudence, generally. There are two categories of state
action that must be compensated without any further inquiry into additional
factors, such as the economic impact of the governmental conduct on the
landowner or whether the regulation substantially advances a legitimate
state interest. The two categories include regulations that (1) involve a
permanent physical invasion of the property or (2) deny the owner all
economically beneficial or productive use of the land. Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798
(1992). These two categories are what the neighbors term "per se" takings.
The per se rule regarding the first category-physical invasion-was firmly
established in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,
425, 102 S. Ct. 3164, 3171, 73 L. Ed. 2d 868, 886 (1982).

Presumably, in all other cases involving "regulatory takings" challenges,
the United States Supreme Court engages in a case-by-case examination in
determining at which point the exercise of the police power becomes a
taking. Id. This ad hoc approach calls for a balancing test that is
essentially one of reasonableness. The test focuses on three factors: (1)
the economic impact of the regulation on the claimant's property; (2) the
regulation's interference with investment-backed expectations; and (3) the
character of the governmental action. Penn Cent. Transp. Co. v. New York
City, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631, 648
(1978). According to some commentators, a court must first find that the
regulation substantially advances legitimate state interests before the
court may test the regulation against the three factors in Penn Central.
See, e.g., Craig A. Peterson, Land Use Regulatory "Takings" Revisited: The
New Supreme Court Approaches, 39 Hastings L.J. 335, 351 (1988).

(2) Physical invasion. The Board and applicants contend the neighbors'
argument fails under both categories of per se takings: physical invasion
and denial of all economically beneficial or productive use of the
property. The neighbors do not contend the record supports a finding that
the challenged statute denies them all economically beneficial or
productive use of their property. Accordingly, we restrict our discussion
to the physical invasion category.

According to one commentator,

[t]he term "regulatory taking" refers to situations in which the government
exercises its "police powers" to restrict the use of land or other forms of
property. This is often accomplished through implementation of land use
planning, zoning and building codes. In contrast, a governmental entity
exercises its eminent domain power or acts in an "enterprise capacity,
where it takes unto itself private resources and uses them for the common
good." Where the private landowner will not sell the land, the government
entity seeks condemnation of the property and pays a fair purchase price to
be determined in court. On the other hand, an inverse condemnation claim is
sought by a landowner when the government fails to seek a condemnation
action in court.

John W. Shonkwiler & Terry Morgan, Land Use Litigation § 1.02, at 6 (1986)
[hereinafter Shonkwiler]. The neighbors' challenge here is one of inverse
condemnation.

We think it would aid our analysis of the neighbors' takings argument to
discuss those cases where a government entity acting in its enterprise
capacity has appropriated private property without first exercising its
eminent domain power.

(a) Trespassory invasions of private property by government enterprise.
Generally, when the government has physically invaded property in carrying
out a public project and has not compensated the landowner, the United
States Supreme Court will find that a per se taking has occurred. See
Shonkwiler § 10.01(1), at 369. For example, in Pumpelly v. Green Bay &
Mississippi Canal Co., the Court held there was a taking where the
defendant's construction of a dam, pursuant to state authority, permanently
flooded the plaintiff's property. 80 U.S 166, 181, 20 L. Ed. 557, 561
(1871). In so holding, the Court enunciated the following rule:

[W]here real estate is actually invaded by superinduced additions of water,
earth, sand, or other material, or by having any artificial structure
placed on it, so as to effectually destroy or impair its usefulness, it is
a taking, within the meaning of the constitution.

Id.

In a more recent case, the Court applied the same rule to a state law that
authorized third parties to physically intrude upon private property.
Loretto, 458 U.S. at 432 n.9, 102 S. Ct. at 3174 n.9, 73 L. Ed. 2d at 880
n.9 (holding that a New York statute requiring the owners of apartment
buildings to permit cable television operators to install transmission
facilities on their property was in violation of the Just Compensation
Clause).

(b) Nontrespassory invasions of private property by government enterprise.
To constitute a per se taking, the government need not physically invade
the surface of the land. See Shonkwiler § 10.02(2), at 370. For example, in
United States v. Causby, the Court held that the frequent and regular
flights of government planes over the plaintiffs' land had created an
easement in the lands for the benefit of the government. 328 U.S. 256,
266-67, 66 S. Ct. 1062, 1068, 90 L. Ed. 1206, 1213 (1946). The plaintiffs
owned a small chicken farm near an airport leased by the government for use
by army and navy aircraft. The glide path of one of the runways passed
right over the plaintiffs' land at a height of only eighty-three feet. As a
result of the aircraft's noise, the plaintiffs had to abandon their
commercial chicken operation. Id.

The Court held that the flights' interference with the use of the
plaintiffs' land constituted a taking of a flight easement that had to be
compensated on the basis of diminution in the land's value resulting from
the easement. Id. at 261-62, 66 S. Ct. at 1066, 90 L. Ed. at 1210. In the
course of its opinion, the Court stated:
____________________________________________
Lyle Krewson
6403 Aurora Avenue #3
Des Moines, IA 50322-2862

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