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Bormann v. Board of Supervisors in & for Kossuth County, Iowa

Citation: 29 ELR 20235
No. 192/96-2276, 584 N.W.2d 309/(Iowa, 09/23/1998)

The court holds unconstitutional a state statute that provides immunity from nuisance suits to farms in designated agricultural areas. A county's approval of an application for an agricultural area gave the applicants immunity from nuisance suits. Neighbors of the applicants contend that the approval with the attendant nuisance immunity results in a taking or private property by creating an easement over their property. The court first holds that the nuisance immunity creates an easement in the property affected by the nuisance. The immunity allows the applicants to do acts on their own land which, were it not for the easement, would constitute a nuisance. The court also holds that an easement is a protected property right.

The court next holds that the easements amount to a taking of private property for public use without just compensation. Because no damages were sought for any temporary taking, the court simply invalidates the unconstitutional provision.

Counsel for Appellants
Michael E. Gabor
Buchanan, Buchanan, Bibler, Buchanan & Handsaker
111 N. Dodge St., Algona IA 50511
(515) 272-4180

Counsel for Appellees
David C. Skilling. County Attorney
County Attorney's Office
340 Polk County Bldg.
111 Court Ave., Des Moines IA 50309
(515) 286-3341