Costello v. Burke

• Decision Date: 24 April 1884
• Citation: 19 N.W. 247,63 Iowa 361
• Parties: COSTELLO v. BURKE.
• Court: Iowa Supreme Court

63 Iowa 361

19 N.W. 247

COSTELLO

v.BURKE.

Supreme Court of Iowa.

Filed April 24, 1884.

Appeal from Dallas circuit court.

The defendant filed his petition with the board of supervisors for the establishment of a highway. Such proceedings were had on this petition that the establishment of the highway was recommended by a commissioner who was appointed to examine into the expediency of establishing the same. After the commissioner's report was filed, notice was personally served on plaintiff, requiring all claims for damages, on account of the location of the highway, to be filed by a day therein named. Such notice was also published in a newspaper published in the county. Within the time prescribed by the notice, plaintiff filed the following claim for damages:

“ To the Honorable Board of Supervisors of Dallas County, Iowa: Your petitioner, Michael B. Costello, respectfully represents that he is the absolute and unqualified owner, in fee-simple, of the north-west quarter of section 14, township 80, range 26 west 5th P. M., Dallas county, Iowa; that he will sustain damages by reason of the highway known as the John Burke highway, as recommended by C. F. Ellerman, commissioner, in the sum of $500. Wherefore, he prays that appraisers be appointed to assess the damages. * *”

Appraisers were thereupon appointed, who assessed his damages at $87.53, and, this assessment being approved by the board of supervisors, he appealed to the circuit court. On the trial in the circuit court, plaintiff introduced in evidence the abstract of original entries and the record of certain mesne conveyances, which show that on the twenty-second day of August, 1862, the title to the land described in plaintiff's petition was in one John Bennington, and the conveyances to him recite that his place of residence was Brown county, Ohio. Plaintiff also introduced a conveyance of said land (a warranty deed) from Lucinda Bennington, Elizabeth E. Leggett, Harriet C. King, Mary K. Shaw, and Fanny G. Bennington to William Costello. This deed recites that the grantors are the widow and children and heirs at law of John Bennington, deceased, late of Brown county, Ohio. Also the judgment entry in a cause brought by the grantors in the last-named deed in the circuit court against one Emeline Edinburn, to cancel a mortgage on said land, by which it was determined that John Bennington, at the time of his death, was the owner of said land; that he died in 1872; and that the plaintiffs in that action were his only heirs at law; also the transfer book kept in the county auditor's office, which showed a transfer of the land by warranty deed from William Costello to Michael B. Costello. Plaintiff testified that he had been in actual occupancy of the land for over two years; that he owned it; and that his occupation of it was as owner.

The court instructed the jury that the evidence was insufficient to establish that plaintiff had title to the land, and that he was not entitled to damages on account of the appropriation of the land for highway, but that he might recover for such immediate and necessary consequences as resulted to him as the occupant of the land by reason of the establishment of the highway. The jury assessed the damages at $75. Plaintiff appeals.Cardell & Shortley, for appellant.

North & Barr and Barcroft, Bowen & Sickmon, for appellee.

REED, J.

1. The questions argued by counsel relate to the instructions given, to the effect-- First, that plaintiff was not entitled to recover the value of the land appropriated, without proof that he was the owner thereof; and, second, that the evidence was not sufficient to establish his...