Anderlik v. Iowa State Highway Comm'n, 47464.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GARFIELD
• Citation: 240 Iowa 919,38 N.W.2d 605
• Parties: ANDERLIK et al. v. IOWA STATE HIGHWAY COMMISSION et al.
• Docket Number: No. 47464.,47464.
• Decision Date: 21 October 1949

240 Iowa 919
38 N.W.2d 605

ANDERLIK et al.
v.
IOWA STATE HIGHWAY COMMISSION et al.

No. 47464.

Supreme Court of Iowa.

Aug. 5, 1949.
Rehearing Denied Oct. 21, 1949.

Appeal from District Court, Linn County; J. E. Heiserman, Judge.

Mandamus to compel defendant state highway commission to institute condemnation proceedings for the assessment of damages from the construction of an approach to a viaduct in the highway in front of plaintiffs' residences. From decree as prayed, defendant has appealed.

Affirmed.

Robert L. Larson, Atty. Gen., Folsom Everest, Sp. Asst. Atty. Gen., for highway commission, and Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, for appellants.

[38 N.W.2d 606]

Donnelly, Lynch, Lynch & Dallas, and Ralph V. Harman, all of Cedar Rapids, for appellees.

GARFIELD, Justice.

We will consider the case as if the state highway commission were sole defendant. Primary highway 84, running south from Cedar Rapids to the municipal airport, crosses the North Western railroad tracks which run nearly east and west along, but just outside, the city's corporate limits. Plaintiffs' three residences face east on the west side of the highway just south of the railroad. Commencing in September, 1947, a viaduct and approaches thereto were constructed over the railroad under contracts let by defendant commission. The south approach to this overhead crossing is in the highway in front of plaintiffs' properties.

In this mandamus action to compel defendant to institute condemnation proceedings for the assessment of plaintiffs' damages from the erection of the improvement, the question presented is whether there was a taking of plaintiffs' properties in violation of Article I, section 18, Iowa Constitution, I.C.A., which states, ‘Private property shall not be taken for public use without just compensation * * *.’ Our constitution does not say ‘taken or damaged.’ In granting the relief asked, the trial court held there was such a taking notwithstanding there was no actual physical encroachment upon plaintiffs' properties.

Before the improvement here in question was made highway 84 in this vicinity was substantially level, 66 feet wide, with blacktop surface, affording ample access to plaintiffs' properties and without affecting the light, air or view. Plaintiffs' lands are generally level and about the same elevation as the old highway.

The improvement consists of a bridge or viaduct about 155 feet long (north and south) over the railroad with approaches of solid earth in the highway both north and south of the bridge. The south approach is 1353 feet long, the north approach 1092 feet. The new roadbed is 56 feet wide at the top with pavement of 22 feet in the center and shoulders of 17 feet on each side. Grading has been done to provide for pavement 45 feet wide. Defendant purchased ground along the east side of the old highway just south of the railroad for use as a borrow pit and to provide added space for the improvement.

Plaintiffs Mr. and Mrs. Robinson own about 1 1/4 acres adjoining the railroad on the south with a frontage of 256 feet on highway 84. The house is a story and a half, modern, with five rooms. Plaintiffs Mr. and Mrs. Anderlik own about four acres adjoining Robinsons' on the south with a frontage of 280 feet on the highway. Their house is new, one story, with many modern conveniences. Plaintiffs Mr. and Mrs. Harper own the 5-acre tract immediately south of Anderliks' with a frontage of 419.4 feet on highway 84. Their house is a story and a half with the first floor and one room upstairs ‘finished off.’ They also have a small barn and four other outbuildings. Robinsons and Anderliks live in their properties. Harpers rent theirs at $40 a month.

The front of Robinsons' house is 20 feet west of their east lot line and 43 feet west of the west edge of the embankment which is 24.12 feet high in front of their house. The front of Anderliks' house is 40-1/3 feet west of their east lot line and about 71 feet west of the west edge of the embankment which is 19.5 feet high in front of their ouse. The front of Harpers' house is 51 feet west of their east lot line and 80 feet west of the west edge of the embankment which is 14.5 feet high in front of their house. These three elevations of 24.12, 19.5 and 14.5 feet are from the surface of the old highway.

The only means of access to plaintiffs' properties is over that part of the old highway between the west edge of the embankment and their east lot line. This old road comes to a dead end at the south line of the railroad right of way. To get on the present highway from plaintiffs' properties it is necessary to travel what is left of the old road to Prairie avenue which intersects highway 84 at the southeast corner of the Harper tract. The respective distances from this point to the Harper, Anderlik and Robinson houses are 399, 569, and 779 feet. Thus on a

[38 N.W.2d 607]

round trip into Cedar Rapids the Robinsons must travel 3116 feet further than before.

This old road is no longer blacktop but is surfaced with light gravel. Defendant's district engineer testifies it is to be surfaced with crushed rock. Plaintiffs say the part which can be traveled measures from 8 to 14 (with an average of 11) feet wide in front of their properties. Defendant's resident engineer testifies such width measures from 15 to 21 feet.

The improvement obstructs the view to the east from these properties. The embankment in front of Robinsons' house is about as high as the house and obviously they are able to see only the west side of the embankment when they look east, even from their upstairs windows. The embankment in front of Anderliks' is...