LEE COUNTY – What amounted to almost a mock trial in front of the Lee County Board Tuesday morning resulted in the county declining to vacate a roadway that hasn’t been maintained in decades.
Bill and Kimberly Ensminger of Argyle petitioned the board to vacate a stretch of roadway that abuts their property running east from 194th Avenue near 270th Street. According to county records produced by the Ensmingers through their attorney Elisha Stuekerjuergen of West Point, the county had agreed to vacate the stretch of roadway in 1948 and produced records showing the closure of the road. However, no records authorizing the vacation of the property were found.
Elaine Gray, a local attorney and landowner near the property, started an LLC called Work Ethic on 40 acres of land near the vacation request. She said back in the 40s the county was approached about vacating 270th Street, which it did. But it didn’t vacate all the way through because the property was landlocked without the public road. She said another 80 acres of land is owned by Barbara Billings.
“The county has faced this question of whether to vacate or not in the past and came up with, ‘Well, why would we?’,” Gray said. “Why would we landlock 120 acres of property there?”
Gray said the county needs to leave the roadway open and, if they did vacate, the Billings' and Grays' would have to come onto their property through terrain that isn’t normally passable with vehicles other than with a side-by-side or a horse.
“Even if we came down through other people’s farms, they couldn’t get to their property in a vehicle or farm implement. And the same goes for Barbara.”
Gray also said the Iowa Supreme Court has case law where you can’t condemn or vacate public property without compensating property owners who lose access to their land.
Stuekerjuergen said there is a written easement on file where Gray and Billings have access to their property. She said that provides meaningful access other than the vacated roads.
She said the stretch of road is marked on a county map that it is closed and has been closed since Jan. 1, 1948. She also produced a vacation request of the roadway from all the adjoining property owners that was submitted in 1946.
“The county couldn’t find records of what happened there. The vacation request is there and everyone signed off on it,” Stuekerjuergen said. “But the actual record of what happened with it cannot be found.”
She said the county has done nothing with the road, including maintenance, as well as pointing out that the Ensmingers have been paying taxes on that parcel of road.
“There is case law out there… that says the public entity will be stopped from setting up claim to land which the right of public to use has been abandoned,” she said. “Clearly this has been abandoned.”
Stuekerjuergen said the county wouldn’t even be able to lay claim to the roadway anymore because it has been abandoned and has been used by private entities for more than eight decades.
However, County Attorney Ross Braden said the county isn’t required to vacate the property and, since no documentation can be found authenticating the vacation by the county, the matter should be settled in district court. He said for the county to weigh in at this point could open it to litigation down the road.
Braden asked if anyone was using the road currently. Kim Ensminger said the road hasn’t been usable since the early 80s when her father bought it, and has been overgrown. However, she said they have granted access for neighboring agriculture purposes.
Braden said he takes issue with there being no legal authority for public land being converted to private ownership and the assertion that’s what has occurred.
“I’m under the impression that public land cannot be converted by private landowners,” he said.
“I’m of the opinion no private party is able to convert public property into their own personal property. I don’t think there’s adverse possession that I'm aware of. I understand what Mrs. Stuekerjuergen is saying about abandonment and I’m not familiar with those issues. But if that property is abandoned, then the request to vacate is moot in my opinion.
“These parties need to file some type of action in district court to establish property rights. As far as the request to vacate, my advice to the board is no because of the potential for damages for Work Ethic LLC and the Billingses,” Braden said.
The board took Braden’s advice and declined to approve the vacation request on a unanimous vote.
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