SMB Investments v. Iowa-Illinois Gas & Electric Co.

329 N.W.2d 635

• Court: Supreme Court of Iowa
• Decided: February 23, 1983
• Docket: 67526
• Status: Published

Opinions

LARSON, Justice.

SMB Investments owned farmland in Muscatine County over which Iowa-Illinois Gas and Electric Company proposed to build a high-voltage transmission line. SMB challenged the condemnation notice on statutory and constitutional grounds. The district court rejected these challenges, denying SMB’s motions for judgment on the pleadings and to adjudicate law points. On appeal from those rulings SMB raises two issues: (1) the notice failed to adequately advise SMB of the extent of the interest sought to be acquired, and (2) it failed to adequately describe the locations of the ingress and egress incident to the easement. It claims the notice did not comply with the requirements of Iowa Code section 472.8 and that the proceedings based upon the notice deprived it of due process under the United States and Iowa constitutions. We agree with the district court: the notice substantially complied with section 472.8 and did not deny SMB its constitutional rights of due process.

Iowa-Illinois is a public utility empowered to condemn real estate for construction of its transmission lines. See Iowa Code chapter 478. Notice of the condemnation process is required to be served upon parties claiming interests in the land by ten days’ notice, advising of the time when the condemnation commission will view the property, and served in the same manner as original notices. Iowa Code § 472.8. The manner of service is not challenged here, only the form of the notice.

Iowa Code section 472.9 prescribes the form of notice:

Said notice shall be in substantially the following form, with such changes therein as will render it applicable to the party giving and receiving the notice, and to the particular case pending, to wit:

“To . (here name each person whose land is to be taken or affected and each record lienholder or encumbrancer thereof) and all other persons, companies, or corporations having any interest in or owning any of the following described real estate:

(Here describe the land as in the application.)

You are hereby notified that. (here enter the name of the applicant) desires the condemnation of the following described land: (Here describe the particular land or portion thereof sought to be condemned, in such manner that it will be clearly identified.)

That such condemnation is sought for the following purpose: (Here clearly specify the purpose.)

That a commission has been appointed as provided by law for the purpose of appraising the damages which will be caused by said condemnation.

That said commissioners will, on the .day of., 19...., at . o’clock ... .m., view said premises and proceed to appraise said damages, at which time you may appear before the commissioners if you care to do so.

Applicant.”

The notice to SMB was entitled “In the Matter of the Application of Iowa-Illinois Gas and Electric Company for Condemnation of Right of Way for Transmission Line in Muscatine County, Iowa.” (Emphasis added.) It advised SMB that

such condemnation is sought for the construction, operation and maintenance of a 362,000 volt electric transmission line and all necessary wires and equipment incident thereto, together with the permanent and perpetual right of ingress and egress to, and from said property for the purpose of constructing, operating and maintaining said transmission line and associated wires and equipment incident to the operation and maintenance of said transmission line.

(Emphasis added.) The notice provided a legal description of the 150-foot strip of land required for construction of the line and advised SMB of the date and place of the commissioner’s viewing of the property, pursuant to section 472.8. The body of the notice did not state what interest was being sought, that is whether it was fee simple or merely an easement, nor did it give a precise location for the “perpetual right of ingress and egress” to which it referred.

I. Designation of Extent of Owner’s Interest to be Condemned.

SMB argues first that the defendant’s notice of condemnation does not comply with Iowa Code section 472.9 because it failed to specify the property interest sought by Iowa-Illinois. SMB points to the statutory form of notice set out in section 472.9 parenthetically requiring the notice to “describe the particular land or portion thereof sought to be condemned, in such a manner that it will be clearly identified” and argues that “the condemnor [must] apprise the condemnee in the notice of condemnation not only of the description of the parcel to be acquired but also the interests in the parcel which the condemnor seeks.”

While statutory provisions regulating the exercise of eminent domain must be strictly complied with, City of Des Moines v. Geller Glass, 319 N.W.2d 239, 242 (Iowa 1982), this does not necessarily mean literal compliance with the notice statute is required; substantial conformity is sufficient. Koss v. City of Cedar Rapids, 271 N.W.2d 730, 735 (Iowa 1978); Bourjaily v. Johnson County, 167 N.W.2d 630, 633 (Iowa 1969).

Iowa-Illinois’ notice stated in the caption that it was “for Condemnation of a Right of Way for Transmission Line in Muscatine County, Iowa.” (Emphasis added.) The term right of way, when used in reference to the right to pass over another’s land, is synonymous with the term easement. See Hawk v. Rice, 325 N.W.2d 97, 99 (Iowa 1982); Draker v. Iowa Electric Co., 191 Iowa 1376, 1382, 182 N.W. 896, 899 (1921); Clark v. Wabash Railroad Company, 132 Iowa 11, 13, 109 N.W. 309, 310 (1906); Kleih v. Van Schoyck, 250 Wis. 413, 418, 27 N.W.2d 490, 493 (1947); see also, Annot., 89 A.L.R.3d 767 (1979). In its strict meaning, “a right of way means the right to pass over another’s land. It is only an easement, and the grantee acquires only the right to a reasonable and usual enjoyment thereof. The owner of the soil has all the rights and benefits of ownership consistent with the easement.” Minneapolis Athletic Club v. Cohler, 287 Minn. 254, 257, 177 N.W.2d 786, 789 (1970). We believe the notice substantially complied with section 472.9 in its specification of the nature of the interest; the reference to right of way in the notice caption sufficiently alerted SMB to the interest sought. Moreover, if SMB had any doubts as to what nature of interest was being sought, it could have merely looked at Iowa-Illinois’ application for condemnation filed with the chief judge of the district under Iowa Code section 472.3, which stated that “[applicant seeks to condemn ... a right of way and easement....”

The district court properly concluded the notice was not defective on this ground.

II. Description of Ingress and Egress.

SMB also asserts that the notice is deficient because, while it described the easement itself, it did not specify the location or extent of the ingress and egress requested by Iowa-Illinois. Iowa-Illinois requested condemnation of the easement “together with the permanent and perpetual right of ingress and egress to and from said property for the purpose of constructing, operating and maintaining said transmission line and associated wires and equipment incident to the operation and maintenance of said transmission line.” The location of the ingress and egress route was not specified.

The ingress and egress right which Iowa-Illinois seeks is known as a “secondary easement,” an incident to its easement for the transmission line itself. As one authority explains:

The right to enter upon the servient tenement for the purpose of repairing or renewing an artificial structure, constituting an easement, is called a “secondary easement,” a mere incident of the easement that passes by express or implied grant, or is acquired by prescription. The owner of the dominant estate may enter on the servient tenement, and there do any act necessary for the proper user of the easement. This secondary easement can be exercised only when necessary, and in such a reasonable manner as not to needlessly increase the burden upon the servient tenement. The grant of the easement carries with it by implication whatever incidental right is necessary to its beneficial enjoyment, provided the grantor has power to bestow it.

Thompson, Real Property § 428, at 706 (1961). See also 25 Am.Jur.2d Easements and Licenses § 86, at 492-93 (1966):

In order that the owner of the easement may perform the duty of keeping it in repair, he has the right to enter the servient estate at all reasonable times to effect the necessary repairs and maintenance ... of the easement. Such right is an incident of the easement, and is sometimes called a “secondary easement.”

See generally Nixon v. Welch, 238 Iowa 34, 40-43, 24 N.W.2d 476, 479-80 (1947) (implied easement to enter land subject to waterway easement for purposes of maintaining flowage); Bina v. Bina, 213 Iowa 432, 437, 239 N.W. 68, 70 (1931) (right to enter to maintain the private right of way). This secondary easement right may be obtained as an incident to an easement acquired by eminent domain, as well as one obtained by conveyance.

The right of way for a transmission line includes the right to maintain and service the line. Every reason of public policy in favor of ways of necessity for ingress and egress over the grantor’s lands where he has conveyed inaccessible lands to another applied to a right acquired by eminent domain.

3 Nichols, The Law of Eminent Domain § 11.204, at 11-24, 25 (3rd ed. Sackman 1981). See also Moore v. Indiana and Michigan Electric Co., 229 Ind. 309, 314, 95 N.E.2d 210, 212 (1950) (right of way for transmission line includes right of ingress and egress; principle applies whether required by condemnation or grant).

In Iowa, this common-law principle is recognized in Iowa Code section 478.17:

Individuals or corporations operating such transmission lines shall have reasonable access to the same for the purpose of constructing, reconstructing, enlarging, repairing, or locating the poles, wires, or construction and other devices used in or upon such line, but shall pay to the owner of such lands and of crops thereon all damages to said lands or crops caused by entering, using, and occupying said lands for said purposes. Nothing herein contained shall prevent the execution of an agreement between the person or company owning or operating such line and the owner of said land or crops with reference to the use thereof.

Because of the uncertainty of future requirements of ingress and egress, particularly as to the locations where the secondary easement may be necessary, it is also been referred to as an “unlocated” easement. See 26 Am.Jur.2d Eminent Domain § 138, at 803 (1966) (“A transmission company may acquire by condemnation an unlo-cated or secondary easement of ingress and egress over land for the purposes of construction and maintenance of this transmission line on such land.”) Accord Virginia Electric and Power Co. v. Webb, 196 Va. 555, 563, 84 S.E.2d 735, 741 (1954).

There is authority to support a claim for damages, in the condemnation proceedings, for diminution of value in the remaining land due to the existence of a secondary easement. See Draker, 191 Iowa at 1383-84, 182 N.W. at 899 (“[T]he probability of the occurrence of damage [by entry to maintain an easement] in the future affects the market value of the property and may be taken into consideration by the jury in arriving at its [condemnation] verdict.”). SMB did not, however, challenge the amount of condemnation damages. In fact, it did not even appear in the proceedings to assert a claim for such damages. It merely boycotted the proceedings, contending the lack of legal description rendered the notice of condemnation void. The issue, therefore, is not whether SMB was entitled to damages for this secondary easement, but simply whether the notice of condemnation was defective for failing to describe it. In other words, was the condemnation notice adequate to comply with the requirement that it “describe the particular land or portion thereof sought to be condemned” under Iowa Code § 472.9?

The general rule is that the ingress and egress routes need not be described in condemnation proceedings:

When, as usually happens, only part of a particular parcel of land is sought to be taken, it is not necessary to describe the entire parcel, but only that part of it which is required for the particular use. Neither is it necessary to describe property which will be damaged if the proposed improvement is constructed.

Where a right of way is sought to be acquired it is essential that the courses and distances be accurately set forth and the termini fixed with definiteness and certainty. However, where an accurately described easement is set forth, the description of ingress and egress to the easement sought does not readily admit of detailed description. The location of such a right would of necessity vary from time to time, from season to season, and be subject to change depending upon the exigencies then existing.

6 Nichols, supra § 26.112, at 26-60, 61.

In Otter Tail Power Company v. Malme, 92 N.W.2d 514 (N.D.1958), this precise issue was raised; the location of the proposed transmission line was specifically described, but the ingress and egress routes were not. The court noted the practical problems in requiring a description of the ingress and egress rights discussed in Nichols. It also relied upon the principle of the secondary easement and concluded it was not a separate and distinct interest required to be sought through condemnation but a natural incident to the easement itself. Therefore, the court reasoned, the utility company acquired the rights of ingress and egress despite the fact they were not described.

There are serious practical problems in adopting SMB’s argument that Iowa-Illinois must describe the ingress and egress routes to be used. A utility looking to the future in attempting to assess its needs for access would either have to condemn enough routes to guarantee access to all points on the easement, condemn specific access routes as they became necessary, or use a combination of these alternatives. The first would obviously be cost prohibitive and would encumber large numbers of tracks which might never be needed for access. The second alternative would also be unworkable, in view of the need to make immediate repairs, particularly on an electric transmission line.

Failure of the notice to describe the secondary easement did not render the proceedings void, and SMB is bound by them. Of course, any future use of the secondary easement must be reasonable, and will entitle the owner to recovery for damages resulting. Iowa Code § 478.17.

III. The Constitutional Challenge.

Finally, SMB argues that even if the notice complied with statutory requirements, it was defective on constitutional grounds. It complains that it was deprived of property without due process in violation' of the fifth and fourteenth amendments to the United States Constitution and article I, section 18 of the Iowa constitution, because of the alleged deficiencies in the notice.

It relies upon the general proposition that [i]n all proceedings of a judicial nature involving the taking of property, due process requires that the owners, as a matter of right, be afforded notice of the acquisition and opportunity to be heard with respect to the question of compensation.

1 Nichols, supra § 4.103, at 4-64.

Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the penden-cy of the action and afford them an opportunity to present their objections. Mullane v. Central Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Accord Mammel v. M & P Missouri Levee District, 326 N.W.2d 299, 301 (Iowa 1982).

For the reasons expressed in the previous division, we believe the notice here was reasonably calculated to, and did, inform SMB of the nature and extent of the interests sought through- condemnation and that the proceedings based on the notice did not violate the Mullane standard under the United States Constitution, nor under article I, section 18, of ours. See Redmond v. Ray, 268 N.W.2d 849, 852 (Iowa 1978) (similar provisions of federal and state constitutions usually deemed identical in scope, import and usage). See also Draker, 191 Iowa at 1384, 182 N.W. at 900.

We find no reversible error.

AFFIRMED.

All Justices concur except REYNOLD-SON, C.J., and SCHULTZ and LeGRAND, JJ., who dissent.