In re Primary Road No. U.S. 30, West of Mechanicsville, Cedar County, Iowa, Project No. F-57

• Decision Date: 14 October 1941
• Docket Number: 45409.
• Parties: In re PRIMARY ROAD NO. U.S. 30, WEST OF MECHANICSVILLE, CEDAR COUNTY, IOWA, PROJECT NO. F-57. v. IOWA STATE HIGHWAY COMMISSION. HAVNER et al.
• Court: Iowa Supreme Court

300 N.W. 287

230 Iowa 1069

In re PRIMARY ROAD NO. U.S. 30, WEST OF MECHANICSVILLE, CEDAR COUNTY, IOWA, PROJECT NO. F-57.

HAVNER et al. v. IOWA STATE HIGHWAY COMMISSION.

No. 45409.

Supreme Court of Iowa.

October 14, 1941

Appeal from District Court, Cedar County; John T. Moffit and Chas J. Haas, Judges.

This is a condemnation proceedings which found its way to the district court by appeal from an award of commissioners appointed to assess damages. When the matter reached the district court it was ordered that the question whether the proposed taking was for a public use, should be tried first in equity under the provisions of section 10947, 1939 Code. On the conclusion of this hearing the trial court dismissed the proceedings and defendant appeals.

Affirmed.

John M. Rankin, Atty. Gen. of Iowa, G. H. Clark, Jr., Asst. Atty Gen., William R. Hart, of Iowa City, and M. C. Hamiel, of Tipton, for appellant.

France & France, of Tipton, and Margaret I. Cunningham, of Des Moines, for appellees.

SAGER Justice.

For convenience, Ada Dean Havner will be referred to as if she were the sole appellee.

On July 7, 1937, one Mushrush, division maintenance engineer, and another employee of appellant discovered a workman filling in the ditch along the north side of the pavement and within the public right of way. This discovery led to an exchange of correspondence between White, the chief engineer of appellant, and his subordinates. It resulted, too, in conversations between appellee's husband, who was her representative throughout, and White and two members of appellant commission. We do not overlook the flat contradiction in the testimony but it is unnecessary that we discuss it. If it were a question of veracity between the witnesses, the conclusions of the trial court in favor of appellee would have considerable weight. There is little or no real dispute as to the essential facts as we see them.

Appellee owns a farm in Cedar County along the north line of U.S Highway 30 (also known as Lincoln Highway). The right of way of the Chicago & Northwestern Railway enters the farm at or near its southeast corner and continues in a northwesterly direction across said land. From about the southeast corner of this land the railroad curves away to the southeast and parallels highway No. 30 for a considerable distance. Before the pavement as it now exists was laid, Lincoln Highway ran east and west along the south line of the Havner land and beyond. When highway No. 30 was built the part of the old road to the east was left and is still in existence and used as a dirt highway which connects with the pavement near the southeast corner of appellee's land after crossing the railroad tracks.

It was the purpose of appellee to set up a filling and service station in the angle formed by the convergence of highway No 30 and the railroad right of way; and while leveling and filling of the highway to provide access to the enterprise, her activities were discovered.

On November 10, 1937, White as chief engineer made a certificate and request to the attorney general for the commencement of proceedings and in due course they reached their present state. On the trial there were introduced a great number of charts, plats and profiles and it has been no small task to thread our way to essentials. Nevertheless the situation as it appears on the ground is simple enough; and the principles applicable have been so often stated that they need not be restated. As has been said the trial court found in substance that the proposed taking was not for a public use and dismissed the proceedings. Various considerations seem to sustain that decree, among them these:

Highway 30, as has already been observed, runs east and west along the south side of appellee's farm until it reaches a point at or near the southeast corner. The proposed filling station was to be on the north side so that the taking of the extra seventeen feet on the north of the highway would add nothing to the sight distance of the traveller coming from the west. As the highway veers to the southeast at or near the southeast corner the sight distance of the traveller from the east would not be extended; neither would the vision of the westbound traveller in his approach to the pavement, be improved.

On the 28th day of November, 1924, it being deemed advisable to widen the highway as it then existed to the north, appellee granted to the commission an additional eight feet. This was deemed sufficient until the filling station project appeared. There have been no condemnations and none contemplated so far as appears from the record, to widen the highway except along this one farm. No further extensions can be made eastward without encroaching upon the railroad right of way. There appears to be no reason, if it be...