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] HelveticaB. 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: Geneva____________________________________________ Lyle Krewson 6403 Aurora Avenue #3 Des Moines, IA 50322-2862 [log in to unmask] 515/276-8947 515/276-6844 - FAX ____________________________________________