Kelley v. Story County Sheriff

611 N.W.2d 475, 2000 Iowa Sup. LEXIS 103, 2000 WL 763325

• Court: Supreme Court of Iowa
• Decided: June 1, 2000
• Docket: 98-0030
• Status: Published

Opinions

McGIVERIN, Chief Justice.

The main question here is whether damage to private property caused by law enforcement officers while executing' an arrest warrant is a taking of private property under article I, section 18 of the Iowa Constitution, triggering the 'property owner’s right to compensation. In a small claims action brought by plaintiff property owner, Jim Kelley, against defendants Story County and the Story County sheriff, the district court judge concluded that the damage caused to plaintiffs property did not amount to a taking of private property under article I, section 18 of the Iowa Constitution and that defendants were immune from tort liability under Iowa Code sections 670.4(3) and 670.12 (1997) of the Municipal Tort Claims Act.

We granted Kelley’s application for discretionary review.

Upon our review, we affirm the decision of the district court.

I. Background facts and proceedings.

Plaintiff Jim Kelley owns residential real property in Story County, Iowa. Kelley leased the property to Penny Ball.

Late in the evening of May 19, 1997, officers from the Story County sheriffs office arrived at Penny Ball’s residence to execute a warrant for the arrest of William James Vary. Vary was apparently a frequent guest or resident of that property. The officers knocked on the front door, identified themselves and demanded that they be admitted for purposes of making an arrest. When the door was not answered, the officers used force to enter, causing damage to two front-doors in the residence. The officers found Vary in the residence and arrested him. .

Thereafter, Kelley, the owner of the residence, filed an action against Story County and the Story County sheriff¹ on the small' claims docket of district court, see Iowa Code § 631.1,-seeking compensation for the damage caused to the two doors when the officers entered the residence. The district associate judge concluded that the officers exercised due care under Iowa Code section 804.15 (authorizing law enforcement officer to use such force as is reasonably necessary to enter premises for purposes of making an arrest when officer has reasonable cause to believe that a person whom the officer is authorized to arrest is present) in entering the residence to arrest the suspect, and thus the county and sheriff were immune from liability under Iowa Code chapter 670. Kelley appealed that decision to a district court judge.

The district court judge affirmed, concluding that defendant county was immune from liability under section 670.4(3) (municipality is immune from liability for any claim based upon an act of an officer exercising due care in the execution of a statute), and that the sheriff, as an officer and employee of Story county, was not liable due to section 670.12, which removes personal liability against -officers and employees of the' county for claims which are exempted under section 670.4(3). The court also .concluded that the damage caused to Kelley’s property did not constitute a taking of private property under article I, section 18 of the Iowa Constitution and therefore Kelley was not entitled to compensation from defendants.

We granted Kglley’s application for discretionary review. See Iowa Code § 631.16.

II. Standard of review.

On discretionary review of a small claims ' action, see Iowa Code , our standard of review depends on the nature of the case. Hyde v. Anania, 578 N.W.2d 647, 648 (Iowa 1998). If the action is a law case, we review the district judge’s ruling on error. Id. Plaintiff Kelley’s action against the county for compensation for damage caused to his property is an action at law. In such cases, we review the judgment of the district court for correction of errors at law. Iowa R.App.P. 4; Meier v. Sac & Fox Indian Tribe, 476 N.W.2d 61, 62 (Iowa 1991).

To the extent that Kelley raises constitutional claims, our review of the district court’s decision on those issues is de novo. Simonson v. Iowa State Univ., 603 N.W.2d 557, 561 (Iowa 1999).

III. Plaintiffs takings claim.

A. Preliminary matters.

The district court characterized the damage caused to Kelley’s property by the officers as tortious conduct, rather than a taking of private property under the county’s powers of eminent domain, and concluded that the county and sheriff were therefore immune from liability under Iowa Code sections 670.4(3) and 670.12 of the Municipal Tort Claims Act.

Before addressing the county and sheriffs statutory immunity under Iowa Code sections 670.4(3) and 670.12, we must first address whether the damage caused to Kelley’s property amounts to a taking of private property under article I, section 18 of the Iowa Constitution for which compensation must be paid, or whether the damage to plaintiffs property is more in the nature of tortious conduct, subject to the immunity provisions of Iowa Code chapter 670. We begin our analysis with this issue because a claim for compensation under the takings clause of article I, section 18 of the Iowa Constitution would seem to exist independent of any statutory tort immunity provisions. See Connolly v. Dallas County, 465 N.W.2d 875, 878 n. 4 (Iowa 1991) (stating that the municipal immunity provisions at issue in that case, see Iowa Code section 613A.4(7) and (8), now codified at section 670.4(7) and (8), when read with the definition of “tort,” now codified at section 670.1(4), would violate article I, section 18 of the Iowa Constitution as they would appear to exempt the county from liability for constitutional torts, i.e., a takings claim).²

B. Takings law generally.

Article I, section 18 of the Iowa Constitution provides in pertinent part:

Eminent domain. Privaté 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, who shall not take into consideration any advantages that may result to said owner on account of the improvement for which it is taken.

(Emphasis added.)

In Bormann v. Kossuth County Board of Supervisors, 584 N.W.2d 309, 315 (Iowa 1998), cert. denied, Girres v. Bormann, 525 U.S. 1172, 119 S.Ct. 1096, 143 L.Ed.2d 96 (1999), we set forth the follow^ ing analysis concerning takings claims: (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 alleged taking of private property in this case is the physical damage caused to Kelley’s property by the officers when they entered the property to execute the arrest warrant. Thus, the facts of this case do not fit neatly within the other categories of takings cases such as the physical invasion or occupation of private property, or the regulation of the use of property by statute or ordinance. See Bormann, 584 N.W.2d at 316-17 (noting difference between physical invasion and regulation of use of property).

C. Iowa authorities concerning the power of eminent domain and the exercise of police power.

In our cases, we have explained the distinction between the government’s exercise of authority under the eminent domain and police power doctrines as follows:

“Eminent Domain” is the taking of private property for a public use for which compensation must be given. On the other hand “Police Power” controls and regulates the use of property for the public good for which no compensation need be made.

Kent v. Polk County Bd. of Supervisors, 391 N.W.2d 220, 226 (Iowa 1986) (quoting Hinrichs v. Iowa State Highway Comm’n, 260 Iowa 1115, 1126, 152 N.W.2d 248, 255 (1967)); see also Woodbury County Soil Conservation Dist. v. Ortner, 279 N.W.2d 276, 278 (Iowa 1979).

With respect to the exercise of police power for the public health and welfare, we have stated:.

While the police power is very broad, and not capable of exact definition, it is not boundless, and, as a rule, is subject to constitutional limitations. Property may be destroyed under this power, without notice or opportunity to be heard, and, without compensation to the owner, to prevent the spread of contagious diseases, to stay the progress of a devastating fire, and in other exigencies, where the public needs protection or defense. Under this power, public nuisances may sometimes be abated; but, in all such cases, the necessity for summary action must exist, and one who would justify on the ground of necessity must be able to convince a jury that the occasion was present which authorized his act....

Waud v. Crawford, 160 Iowa 432, 434, 141 N.W. 1041, 1041 (1913) (emphasis added). As one commentator has explained:

[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.³

Bormann, 584 N.W.2d at 317 (quoting John W. Shonkwiler & Terry Morgan, Land Use Litigation § 1.02, at 6 (1986)).

The exercise of police power may, in some situations, amount to a taking of private property if it deprives a property owner of the substantial use and enjoyment of one’s property. See Iowa Coal Min. Co. v. Monroe County, 555 N.W.2d 418, 431 (Iowa 1996) (Iowa Coal II); Ortner, 279 N.W.2d at 278. The point at which police power becomes so oppressive that it results in a taking is determined on a case-by-case basis. Bormann, 584 N.W.2d at 316; Iowa Coal Min. Co. v. Monroe County, 494 N.W.2d 664, 670 (Iowa 1993) (Iowa Coal I); Ortner; 279 N.W.2d at 278. This ad hoc approach applies a balancing test that is essentially one of reasonableness, see Bormann, 584 N.W.2d at 317, which asks whether the collective benefits of the regulatory action outweigh the restraint imposed upon the property owner, see Easter Lake Estates, Inc. v. Polk County, 444 N.W.2d 72, 76 (Iowa 1989); Ortner, 279 N.W.2d at 278. Factors to be considered in applying the test include: “(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.” Bormann, 584 N.W.2d at 316-17 (citing 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)).

Our case law provides some examples of the distinction between the legitimate exercise of police power and the exercise of power under eminent domain. For example, we have said that the forced removal of billboards, at the owner’s cost, which are maintained in violation of Iowa Code chapter 306C (Junkyard Beautification and Billboard Control Act) is a valid exercise of police power of the state, not an exercise of the power of eminent domain for which compensation must be paid. Iowa Dep’t of Transp. v. Nebraska-Iowa Supply, 272 N.W.2d 6, 14 (Iowa 1978), overruled on other grounds by Estate of Grossman v. McCreary, 373 N.W.2d 113, 114 (Iowa 1985); see also Goodenow v. City Council, 574 N.W.2d 18, 25 (Iowa 1998) (holding that city ordinance forcing landowner to mow grass and weeds growing on city-owned property at landowner’s expense is proper exercise of police power and does not constitute a taking of private property); Kent, 391 N.W.2d at 226-27 (holding that county ordinance prohibiting persons from owning “dangerous and vicious animals” is valid exercise of police power and does not amount to a taking of private property); Ortner, 279 N.W.2d at 279 (holding that provisions of soil conservation statutes, which require landowners to terrace property at landowners’ expense is a proper exercise of police power and does not constitute a taking of private property); Walker v. Johnson County, 209 N.W.2d 137, 139 (Iowa 1973) (“[wjhere police power is properly exercised in limited situations it is well settled affected property owners are not entitled to prior notice and hearing, even where total destruction of the property is required to protect public health and public property,” stating rule in context of claim based on the due process clauses of the Iowa and United States Constitutions); Loftus v. Department of Agric., 211 Iowa 566, 581, 232 N.W. 412, 420 (1930) (concluding that statute authorizing the destruction of diseased cattle without compensation was a proper exercise of police power and did not deprive property owner of due process under Iowa and United States Constitutions).

D. Other authorities and application of law to facts.

The district court judge found that the damage caused to Kelley’s property was more in the nature' of a tort and did not constitute a taking of private property within the meaning of article I, section 18 of the Iowa Constitution.

Upon our review, we agree with the district court’s decision.

A. Through enactment of section 804.15,⁴ the legislature has articulated the public policy that law enforcement officers may use force to enter private premises for the purpose of executing an arrest warrant. The use of force authorized by section 804.15, however, is not without limitation. According to restrictions imposed bythe legislature, “such force as is reasonably necessary” may only be used when “a law enforcement officer has reasonable cause to believe that a person whom the officer is authorized to arrest is present on [the] private premises.” See Iowa Code § 804.15.

In this case, plaintiffs property was damaged by law enforcement officers, who were exercising their authority under section 804.15, in the course of performing their public duties of enforcing the criminal laws. Enforcement of the criminal laws is clearly within the county’s power to provide for the health, safety and welfare of its citizens. Plaintiffs property was therefore damaged as a consequence of the county’s exercise of police power and not as a consequence of the county’s exercise of its power under eminent domain. Thus, the more narrow question we must decide is whether the county’s exercise of police power in this case was unreasonable.

The district court judge impliedly found that the officers did not use unreasonable force to enter the premises. Based upon our review of the record, we agree with the district court’s finding. We first point out that Kelley does not allege that the amount of force used by the officers to enter the residence was unreasonable. Additionally, the record shows that the officers chose to execute the warrant in the late evening hours because of the subject’s reputation for assaultive and combative behavior. The officers also identified themselves and demanded entry before using force to enter the home. The record thus shows that the officers properly exercised their authority granted to them by Iowa Code section 804.15 when they forcibly entered .the home.

We also believe that the county’s right to provide for the safety and welfare of its citizens in enforcing the state’s criminal laws and procedures outweighs any interference or economic impact of the officers’ action on plaintiffs property as presented in this case. The damage caused to plaintiffs property in this case would seem to be more in line with those cases where property owners have been forced to bear some burden “for the public good,” but where no taking of, private property was found. See Goodenow, 574 N.W.2d at 25 (landowner forced to mow weeds and grass growing on city-owned property at landowner’s expense); Kent, 391 N.W.2d at 221 (owner forced to give up pet lion); Ortner, 279 N.W.2d at 276 (landowners forced to terrace property at landowners’ expense); Iowa Dep’t of Transp., 272 N.W.2d at 14 (owner of billboards forced to remove billboards at owner’s expense).

B. Additionally, the damage to plaintiffs property seems to be more in the nature of a tort rather than a permanent deprivation of property, or creation of a permanent property interest, as contemplated by article I, section 18. For instance, if someone other than a non-governmental employee had broken into the residence and caused the same damage to Kelley’s property as was done here, Kelley would have a private cause of action in tort for trespass and damages against that person. We will address this point further in the next division. We simply point out at this juncture that the present case can be distinguished from the inverse condemnation or permanent taking situation we found in Bormann. 584 N.W.2d at 821. This is because the property rights infringement in Bormann was more in the nature of an involuntary permanent easement on the neighbors’ land, which situation does not exist in the present case. Id.

In Bormann, a county board of supervisors had approved the application of certain landowners to place their land in an “agricultural area.” Nearby landowners challenged the board’s action. We concluded that Iowa Code section 352.11(l)(a), which grants immunity from nuisance suits for farm operations located in an agricultural area, gave the applicant landowners the right to maintain a nuisance on their property that would affect the property of the nearby landowners. Id. This right to maintain a nuisance, we found, resulted in the granting of an involuntary easement by the county board of supervisors for the benefit of the applicant property owners, who were protected by the nuisance immunity. Id. We further concluded that the granting of such an easement by the county amounted to a taking of the neighbors’ private property for public use in violation of the Fifth Amendment to the United States Constitution and in violation of article I, section 18 of the Iowa Constitution. Id. We noted that government action need not amount to a physical invasion of the surface of the land in order for a taking to be found. Id. at 317.

C. In summary, we conclude that the damage caused to the doors on plaintiffs property by the officers was a reasonable exercise of police power and therefore does not amount to a taking of plaintiffs property within the meaning of article I, section 18 of the Iowa Constitution. Plaintiff therefore has not satisfied the second step in the takings analysis and is not entitled to compensation under that theory for damage caused to his property by the officers. See id. at 315. Other authorities support our conclusion. See Patel v. United States, 823 F.Supp. 696, 699 (N.D.Cal.1993) (concluding that property damage caused to plaintiffs property by officers serving search and arrest warrants on occupants of property did not give rise to claim for inverse condemnation under California Constitution); Customer Co. v. City of Sacramento, 10 Cal.4th 368, 41 Cal. Rptr.2d 658, 895 P.2d 900, 913 (1995) (stating that efforts of law enforcement officers to apprehend a felony suspect cannot be likened to an exercise of the power of eminent domain and holding that property damage to plaintiffs liquor store and its contents caused by law enforcement officers while trying to apprehend a suspect did not amount to taking of private property under California Constitution); McCoy v. Sanders, 113 Ga.App. 565, 148 S.E.2d 902, 905 (1966) (concluding that landowner is. not entitled to damages under Georgia Constitution for fish kill and damage to pond when police drained pond on plaintiffs property in search of murder victim); Indiana State Police v. May, 469 N.E.2d 1183, 1184 (Ind.Ct.App.1984) (concluding that damage caused to homeowner’s property by police officers trying to apprehend murder suspect who took refuge in plaintiffs home was in the nature of a tort, for which state was immune under state tort claims act; damage did not amount to a taking of private property under eminent domain power and thus homeowner was not entitled to compensation); Blackman v. City of Cincinnati, 140 Ohio St. 25, 42 N.E.2d 158, 160 (1942) (holding that state statute which makes it a crime to refuse to assist law enforcement officer in apprehending a suspect did not delegate eminent domain power to police officer so as to subject city for liability for damage to plaintiffs vehicle sustained when police officer ordered plaintiff to pursue another vehicle containing a fleeing suspect; owner of vehicle not entitled to compensation under Ohio Constitution); Sullivant v. City of Oklahoma, 940 P.2d 220, 226 (Okla.1997) (concluding that damage to plaintiff-landlord’s property caused by police officers while executing search warrant of apartment in apartment' complex owned by plaintiff did not amount to a taking of private property under the Oklahoma Constitution).⁵

We therefore affirm the decision of the district court on this issue.

IV. Defendants’ immunity under Iowa Code sections 670.4(3) and 670.12.

We concluded above that the damage caused to Kelley’s property does not amount to a taking of private property within the meaning of article I, section 18 of the Iowa Constitution for which compensation must be paid. We also noted that Kelley’s claim for compensation seems to be more in the nature of a tort. In that regard, the district court concluded, however, that the county and sheriff were immune from liability based on tort under Iowa Code chapter 670, the Municipal Tort Claims Act. Plaintiff contends this was error.

Pursuant to Iowa Code section 670.4(3), a municipality or county has no liability for

[a]ny claim based upon an act ... of an officer or employee of the municipality, exercising due care, in the execution of a statute, ... whether the statute, ... is valid, ....

(Emphasis added.) Iowa Code section 670.12 extends this immunity to officers and employees of municipalities:

[a]ll officers and employees of municipalities are not personally liable for claims which are exempted under section 670.4, except claims for punitive damages, and actions permitted under section 85.20. An officer or employee of a municipality is not liable for punitive damages as a result of acts in the performance of a duty, unless actual malice or willful, wanton and reckless misconduct is proven.

The district court characterized the damage caused to Kelley’s property by the officers as tortious conduct, rather than a taking of private property under the county’s powers of eminent domain. Additionally, the court concluded that the officers exercised due care for purposes of section 670.4(3) in entering the residence pursuant to their authority under Iowa Code section 804.15 and that the county was therefore immune from liability under Iowa Code section 670.4(3).

Upon our review, we agree with the district court’s conclusion that the county is .immune under Iowa Code section 670.4(3) for any tort claim by plaintiff Kelley for compensation. As we concluded above, the officers properly exercised their authority granted to them by Iowa Code section 804.15 when they forcibly entered the residence. It therefore follows that the officers met the “exercising due care” requirement of Iowa Code section 670.4(3). Cf. May, 469 N.E.2d at 1183-84 (state was immune from liability for damage caused by state police officers to private property under state tort claims act which grants immunity to public body for torts committed while enforcing a state law).

We also point out that the language “exercising due care” found in section 670.4(3) acts as a check on the county’s exercise of police power to enforce the criminal laws. This is because a municipality cannot avail itself of the immunity provisions of sections 670.4(3) and 670.12 if the government employees do not exercise due care in executing a statute in the first instance. Thus, the possibility remains that a property owner may be entitled to compensation for damage to property when law enforcement officers fail to use due care , in performing their statutory duties, which is not the situation here.

We therefore conclude that the county, under Iowa Code section 670.4(3), and the sheriff and his employees, under section 670.12, have immunity concerning Kelley’s tort claim for compensation for damage caused by the officers to his property. The decision of the district court is affirmed on this issue.

V. Disposition.

Other issues raised by plaintiff either were not preserved in district court or have no merit.

We conclude that damage caused to plaintiffs property by defendants during the execution of the arrest warrant does not amount to a taking of private property under article I, section 18 of the Iowa Constitution for which compensation must be paid.

We further conclude that the district court properly decided that defendant Story County and its sheriff are immune under Iowa Code sections 670.4(3) and 670.12 concerning any tort claim by plaintiff for compensation for damage caused to his property. We therefore affirm the judgment of the district court.

AFFIRMED.

All justices concur except CARTER, J., who takes no part, and SNELL, J., who dissents and is joined by LAVORATO, J.

1 . We will refer to defendants collectively as the county unless otherwise indicated.

2 . Cases from other jurisdictions have held that takings claims are not barred by statutory immunity provisions. This rule is based on the idea that the right to sue for the alleged taking of private property arises directly from the state constitution and is independent of any right to sue under traditional tort theories. See Rose v. City of Coalinga, 236 Cal. Rptr. 124, 127, 190 Cal.App.3d 1627, 1633 (1987) ("The right to sue in inverse condemnation is 'fundamentally rooted' in [the California] Constitution, and the extent of a public entity’s liability is fixed by the Constitution and not by rules of statutory or common law rights and responsibilities between private parties.”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980) (stating that Texas Constitution authorizes compensation for destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use); Wisconsin Retired Teachers Ass'n v. Employe Trust Funds Bd., 207 Wis.2d 1, 558 N.W.2d 83, 95 (1997) ("[S]overeign immunity will not bar recovery for a taking, because just compensation following a taking is a 'constitutional necessity rather than a legislative dole.' ”) (citations and quotations omitted); Zinn v. State, 112 Wis.2d 417, 334 N.W.2d 67, 76 (1983) (stating doctrine of sovereign immunity cannot bar a takings claim because just compensation clause of Wisconsin Constitution amounts to waiver of sovereign immunity); Restatement (Second) of Torts § 985B cmt. a (1977) (stating that constitutional provisions prohibiting the taking of property for public use without just compensation have usually been held to be self-executing and to constitute a consent to suit); 26 Am.Jur.2d Eminent Domain § 169, at 592 (1996) ("doctrine of governmental immunity from liability does not apply where the injury complained of is the taking or damaging of private property for public use. without compensation”); 57 Am.Jur.2d Municipal, County, School, and State Tort Liability § 18, at 45 (1988) (state constitutional prohibition against taking or damaging of private property for public use without just compensation overrides sovereign immunity of county).

3 . For example, the construction of public improvements or other government action may interfere with private property interests even though formal eminent domain proceedings under Iowa Code chapters 6A and 6B have not been instituted. In such cases, a property owner may seek compensation for an alleged taking of private property under inverse condemnation. See Phelps v. Board of Supervisors, 211 N.W.2d 274, 276 (Iowa 1973) (construction of bridge and causeway over river which caused greater flooding over adjacent property than previously existed was a taking within the meaning of Iowa Constitution).

4 . Iowa Code section 804.15 states:

If a law enforcement officer has reasonable cause to believe that a person whom the officer is authorized to arrest is present on any private premises, the officer may upon identifying the officer as such, demand that the officer be admitted to such premises for the purpose of making the arrest. If such demand is not promptly complied with, the officer may thereupon enter such premises to make the arrest, using such force as is reasonably necessary.

5 . Additionally, even though specific reference to "damage to property” is found in the takings clauses of the California, see Cal. Const, art. I, § 19, Georgia, see Ga. Const, art. I, § 3, para. 1, and Oklahoma Constitutions, see Okla. Const, art. II, § 24, courts in those states have concluded that damage to private property caused by law enforcement officers while performing their official duties does not constitute a taking of private property. See Customer Co., 41 Cal.Rptr.2d 658, 895 P.2d at 913; McCoy, 148 S.E.2d at 905; Sullivant, 940 P.2d at 226.

Cases from some jurisdictions have reached a contrary result. See Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 41-42 (Minn.1991) (holding that damage caused to property by police in the course of apprehending a suspect is damage within the language of Minnesota Constitution for which compensation must be paid); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980) (holding that plaintiffs stated a claim for compensation under Texas Constitution for damage caused by police officers to property while trying to capture escaped prisoners who took refuge in plaintiff's home); Wallace v. City of Atlantic City, 257 N.J.Super. 404, 608 A.2d 480, 483 (Law Div.1992) (holding that landlord whose property was destroyed during the execution of a search warrant was entitled to compensation under New Jersey Constitution). The Wegner and Steele cases can be distinguished from the present case, however, based on the fact that the Minnesota and Texas Constitutions contain language different from our Iowa Constitution.- See Wegner, 479 N.W.2d at 40 (Article I, section 13 of Minnesota Constitution states "[p]rivate property shall not be taken, destroyed or damaged for public use without just compensation first paid or secured.”); Steele, 603 S.W.2d at 791 (Article I, section 17 of the Texas Constitution states ”[n]o person’s property shall be taken, damaged or destroyed ... without adequate compensation being made,....").