South-Western Legal Studies in Business

Damage from Public Construction Not a Taking; May Be a Tort
Description Iowa high court held that a building made uninhabitable by vibration from road construction was not subject to eminent domain proceedings as a taking. The damage was a consequence of temporary action, not a permanent occupation, so must be addressed by tort.
Topic Real and Personal Property
Key Words Eminent Domain; Construction; Vibration; Servitude; Damage
C A S E   S U M M A R Y
Facts Kingsway owns property in Des Moines. The Iowa Department of Transportation (IDOT) did construction work on an interstate next to Kingsway. Due to construction vibration, Kingsway’s building was damaged. The city notified Kingsway that the building was unsafe and must be vacated. The cost of restoring the building was $3.9 million. Its fair market value before the damage was $580,000. Kingsway sued IDOT, contending that the construction amounted to eminent domain and a taking of the building. IDOT contends that construction damages do not rise to the level of a taking. The trial court refused to dismiss the action; that ruling was appealed.

Reversed and remanded. The suit should have been dismissed. The construction activities of IDOT did not impose a servitude on the property. The vibrations were temporary, not permanent, so the state has not engaged in a taking that would be classified as an exercise of eminent domain. The property was not taken for public use. The damage to the building was incidental to the construction. If there is a claim, it must be based in tort, not on a theory of a constitutional taking.

Citation Kingsway Cathedral v. Iowa Dept. of Transport., 711 N.W.2d 6 (Sup. Ct., Iowa, 2006)

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