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 3. Lyle http://www.judicial.state.ia.us/decisions/supreme/opinions/962276BO.asp [Part 3] Helvetica[T]he flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it. . . . The reason is that there [is] an intrusion so immediate and direct as to subtract from the owner's full enjoyment of the property and to limit his exploitation of it. . . . The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think the landowner, as an incident to his ownership, has a claim to it and invasions of it are in the same category as invasions of the surface. . . . Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. For the findings of the Court of Claims plainly establish that there was a diminution in value of the property and that the frequent, low-level flights were the direct and immediate cause. We agree with the Court of Claims that a servitude has been imposed upon the land. Id. at 265-67, 66 S. Ct. at 1067-68, 90 L. Ed. at 1212-13; accord Griggs v. Allegheny County, 369 U.S. 84, 89, 82 S. Ct. 531, 533-34, 7 L. Ed. 2d 585, ____ (1962); see also Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S. Ct. 135, 67 L. Ed. 287 (1922) (holding that firing, and imminent threat of firing, of navy coastal guns over plaintiff's property imposed a "servitude" upon the plaintiff's land and thus amounted to a taking of some interest for public use); Dolezal v. City of Cedar Rapids, 209 N.W.2d 84, 87 (Iowa 1973) (recognizing a navigation easement as one that permits free flights over land including those so low and so frequent as to amount to a taking of property); 2A Philip Nichols, Eminent Domain § 6.06, at 6-92 (3d rev. ed. 1998) ("Physical invasions of property are not limited to human or even vehicular entry. To the contrary, the majority of cases involve the transmission of smoke, dust, earth, water, sewage or some other agent onto the impacted property. Regardless of the agent, the result of the invasion may be diminution in values of the property, partial or complete (and permanent and temporary) appropriation, or complete destruction.") [hereinafter Nichols]. In Fitzgerrald v. City of Iowa City, 492 N.W.2d 659, 663 (Iowa 1992), we had occasion to consider a physical invasion claim involving overflying aircraft. As in Causby, the plaintiffs in Fitzgerrald claimed the overflying aircraft so adversely affected the use and enjoyment of their property that a taking had resulted. We rejected the claim because the plaintiffs had failed to prove a "measurable decrease in market value" due to the overflying aircraft. Id. at 665. Nevertheless, we cited Causby for the proposition that "[i]n some circumstances, overflying aircraft may amount to a physical invasion." Id. We recognized that when interferences with property from overflying aircraft result in a measurable decrease in property market value, a taking has occurred. Id. at 663. In such cases, we said "the right to recovery is not for the nuisance that must be endured but for the loss of value that has resulted." Id. The loss-in-value measure of damages is what we would ordinarily use in eminent domain cases. Id. As mentioned, Causby used this same measure of damages. The United States Supreme Court has allowed compensation for other kinds of interferences short of physical taking or touching of land. See William B. Stoebuck, Condemnation by Nuisance: The Airport Cases in Retrospect and Prospect, 71 Dick. L. Rev. 207, 220-21 (1967) [hereinafter Stoebuck]. For example, in United States v. Welch, the plaintiff had a passage easement over a neighbor's property. 217 U.S. 333, 339, 30 S. Ct. 527, 527, 54 L. Ed. 787, 789-90 (1910). The passage was the plaintiff's only access to a county road. The government flooded the neighbor's property thereby cutting off the plaintiff's only access to the road. The Court held the plaintiff was entitled to compensation for the easement. Id. at 339, 30 S. Ct. at 527, 54 L. Ed. at 789-90. Because the benefitted land-plaintiff's property-was not physically touched, this case is "a clear example of condemnation without any physical taking." Stoebuck, at 221; see Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 107 S. Ct. 3141, 3143 97 L. Ed. 2d 677, 687 (1987) (holding that requiring property owner to give easement of access across his property to obtain a building permit was a physical taking of private property that required compensation). In Pennsylvania Coal Co. v. Mahon, a state statute prohibited coal mining if it were done in a manner to cause subsidence of any dwelling. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922). The plaintiff had a contract to mine coal under a dwelling but the statute prevented the plaintiff from doing so. Id. The Court held the statute was an attempt to condemn property-the right to mine coal-without compensation. Id. at 414, 43 S. Ct. at 159-60, 67 L. Ed. at 326. Mahon "is a situation in which, by denying an owner the occupancy and use of his property interest, the government takes the interest without any semblance of physical intrusion." Stoebuck, at 221. Richards v. Washington Terminal Co. presents a factual scenario closer to the facts in this case. 233 U.S. 546, 34 S. Ct. 654, 58 L. Ed. 1088 (1914). In Richards, the plaintiff owned residential property along the tracks of a railroad that had the power of eminent domain. The property lay near the mouth of a tunnel. The Court recognized that two kinds of the railroad's activities had partially destroyed the plaintiff's interest in the enjoyment of his property. The first kind involved smoke, dust, cinders, and vibrations invading the plaintiff's property at all points at which the property abutted the tracks. The second kind involved gases and smoke emitted from engines in the tunnel that contaminated the air and invaded the plaintiff's property. A fanning system inside the tunnel forced the emission of the gases and smoke from the tunnel. As to the first activity, the Court denied compensation because it was the kind of harm normally incident to railroading operations. Id. at 554-55, 34 S. Ct. at 657-58, 58 L. Ed. at _____. As to the second activity-gases and smoke from the tunnel-the Court concluded the plaintiff was entitled to compensation for the "special and peculiar damage" resulting in diminution of the value of the plaintiff's property. Id. at 557, 34 S. Ct. at 658, 58 L. Ed. at ____. Richards is viewed as recognizing the taking of a property interest or right "to be free from < Geneva____________________________________________ Lyle Krewson 6403 Aurora Avenue #3 Des Moines, IA 50322-2862 [log in to unmask] 515/276-8947 515/276-6844 - FAX ____________________________________________