Hoyt v. Chi., M. & St. P. Ry. Co.

• Decision Date: 24 May 1902
• Citation: 90 N.W. 724,117 Iowa 296
• Court: Iowa Supreme Court
• Parties: HOYT v. CHICAGO, M. & ST. P. RY. CO.

117 Iowa 296

90 N.W. 724

HOYT

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

May 24, 1902.

Appeal from district court, Sac county; S. M. Elwood, Judge.

This is an appeal from a condemnation proceeding in which plaintiff was awarded damages in the district court in the sum of $290. The sheriff's jury awarded him $300, and he appeals from the judgment of the district court. Affirmed.Conner & Lally, for appellant.

J. C. Cook, for appellee.

DEEMER, J.

The defendant made application to the sheriff of Sac county for the appointment of commissioners to assess the damages to the N. W. 1/4 of the N. W. 1/4 of section 26, township 89, in said county, by reason of the appropriation of a right of way through said land. Notice of the application was given to plaintiff, Hoyt, and to one Rowlee, his tenant, and commissioners were appointed pursuant to the application, who met, and awarded plaintiff the sum of $300, and the tenant, Rowlee, $25. Both plaintiff and Rowlee appealed from the award to the district court, where a trial was had with the result above stated. The case as to Rowlee does not seem to have been presented to the district court, and the plaintiff did not serve notice upon Rowlee of the appeal to this court. On the trial in the district court plaintiff asked compensation for damages done to the W. 1/2 of the N. W. 1/4 of the section, and also to the S. W. 1/4 of the S. E. 1/4 of section 22, in said township, which he claimed was a part of his farm. The following plat will show the location of the right of way over the W. 1/2 of the N. W. 1/4 of section 26:

EXHIBIT “A.”

Map showing location of C., M. & St. P. Ry. through the west half of northwest quarter of section 26, township 39 north, range 36 west.

IMAGE

Plaintiff's house and other improvements stood on the southwest corner of the 80-acre tract. Highways run along the west side and the north end of this tract, and the S. W. 1/4 of the S. E. 1/4 of 22 is 80 rods west of the highway which runs along the west side of the 80, and the highway on the north of the 80-acre tract runs westward along the south side of the 40. From the plat and this description it will be seen that plaintiff is not compelled to cross the railway track in going from one piece of land to the other, except as he may wish to pass from the 10.40 acres in the northeast corner of the 80-acre tract to the 40, and that the railway right of way does not touch the 40 acres in section 22. It will be observed that the tracts are not contiguous, but lie 80 rods apart. Appellant complains of some of the rulings on evidence, and to these we will first give attention.

1. The first assignment of error relates to the sustaining of a motion to strike out the testimony of the witness Rowlee, relating to the value of the land after the right of way was taken out. Turning to the record, we find no such ruling; hence there is nothing to consider. The next assignment relates to a ruling denying plaintiff's motion to strike out the evidence of one Starr. This is not argued, but rulings with reference to the testimony of one Hart are argued; but there is no assignment of error on which to base the argument.

2. The same may be said of the next assignment of error. If it relates to the testimony of the witness Hart, as the record seems to indicate, there is no argument in support of the assignment. Had there been, no error appears, for the witness stated he did not know the value of the land. On defendant's motion the court withdrew from the consideration of the jury all evidence regarding damages done the S. W. 1/4 of the S. W. 1/4 of section 22, and instructed the jury to consider and determine the damages done to the 80-acre tract alone. These rulings are complained of. They present the only serious question in the case. We have already shown how the land lies, and need only refer to some of the evidence tending to show damages to the 40 acres in section 22. The railway did not touch this 40, and it may only be considered in the event it is shown that the entire tract was used as one farm, and that damages to one part fairly and reasonably affected the whole. The rule seems to be that when the separate tracts are adapted to one use, and are all especially valuable because of adaptability to that use, and are all injuriously affected by the appropriation, they should be treated as constituting one property, and considered as such in assessing the damages. Haines v. Railway Co., 65 Iowa, 216, 21 N. W. 573. Generally, the question of whether or not they should be treated as one tract is for the jury. Ellsworth v. Railway Co., 91 Iowa, 386, 59 N. W. 78;Kremer v. Railway Co. (Minn.) 52 N. W. 977, 38 Am. St. Rep. 468. In Minnesota it is held, however, that “to constitute unity of property between two contiguous but prima facie distinct parcels of land there must be such connection or relation of adaptation, convenience, and actual and permanent use as to make the enjoyment of the parcel taken reasonably and substantially necessary to the enjoyment of the parcel left in the most advantageous and profitable manner in the business for which it is used.” Peck v. Railway Co., 36 Minn. 343, 31 N. W. 217. And in Cameron v. Railroad Co., 42 Minn. 75, 43 N. W. 785, the court held that the owner of farm land consisting of...