Basch v. Iowa Power & Light Co.

• Decision Date: 08 April 1959
• Docket Number: No. 49631,49631
• Citation: 250 Iowa 976,95 N.W.2d 714
• Parties: Theodore J. BASCH, Appellee, v. IOWA POWER AND LIGHT COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 714

95 N.W.2d 714

250 Iowa 976

Theodore J. BASCH, Appellee, v. IOWA POWER AND LIGHT COMPANY, Appellant.

No. 49631.

Supreme Court of Iowa.

April 8, 1959.

Rehearing Denied June 12, 1959.

Gamble, Read, Howland, Gamble & Reipe, Des Moines, and Ross, Johnson, Northrop, Stuart & Tinley, Council Bluffs, for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee.

THORNTON, Justice.

Defendant appeals from a judgment of $2,250 for the taking of an easement for 161,000 volt transmission line over plaintiff's land. The easement is 100 feet wide, 1880 feet long and contains 4.3 acres. It runs in a northeasterly and southwesterly direction across the southeast protion of 160 acres of plaintiff's land. This 160 is separated from the other portion of plaintiff's farm by Highway No. 100. The farm buildings are in the portion of the farm not touched by the easement. The transmission line easement has three two-pole structures.

Defendant contends the trial court erred (1) in restricting the cross-examination of one Anderson, a value witness for plaintiff, and (2) in the excluding of the testimony of defendant's witnesses as to their experience in cultivating crops around transmission line structures similar to those on plaintiff's land. We will deal separately with these contentions.

I. The first arose as to plaintiff's value witness, Anderson, who testified on direct examination that he farmed aldn adjoining plaintiff on the west. He was familiar with plaintiff's land and with sales in the area. He was familiar with two sales, each for $1,000 per acre. He had bought and sold land in the area, and in his opinion the fair and reasonable market value of plaintiff's 360 acre farm immediately before the condemnation was $270 per acre and $250 per acre thereafter.

On cross examination he testified he owned seven farms in the area. On his 78 acres just south of the highway he has two two-pole structures located in tillable soil farmed on the contour, a part of the same transmission line. Early in 1956 two representatives of defendant discussed with him what would be fair payment for taking of an easement over this land for transmission line purposes. He was then asked the following four questions:

1. 'I'll ask you Mr. Anderson, if in the conversation that you had with Mr. Wright and with Mr. Slade shortly after January 1, 1956 you did not state or state in substance that you regarded a formula which took into account the payment of 60% of the value of the easement strip, the land subject to the easement strip plus $120 per set of two poles constituted a reasonably fair, just and adequate payment for the taking of the transmission line easement?'

2. 'I'll ask you this question, Mr. Anderson. Is it not true that in connection with the taking of a transmission line easement across your 78 acres located south of Highway 100 that you stated in substance that a total payment for two structures of two poles each of $380. per structure following the formula referred to in the last preceding question constituted a reasonably fair and adequate price for the taking of a transmission line easement?'

3. 'Let me ask you this question, Mr. Anderson, is it not true that you executed to Iowa Power and Light Company voluntarily an easement for transmission line purposes across the 78 acres owned by you located south of Highway 100 for a consideration of $770?'

4. 'Is it not true that in executing the easement granted to Iowa Power and Light Company the formula already discussed and referred to in preceding questions was used and applied in arriving at the figure at which the settlement was effected?'

Objections to these questions as incompetent, irrelevant and immaterial and not proper cross examination were sustained in each instance.

The court properly sustained the objection as to question three above. The price paid by the condemnor for other tracts taken for the same project has been held by this court to be unduly prejudicial. Wilson v. Fleming, 239 Iowa 718, 31 N.W.2d 393, and authorities therein cited.

The sustaining of the objection to the other three questions was reversible error. By so ruling the court denied defendant the right to show prior inconsistent statements and actions of the witness which would bear directly on the weight and credit to be given to his testimony in chief. This court in State v. Matheson, 130 Iowa 440, at page 448, 103 N.W. 137, at page 140, states the rule as follows:

'But the great weight of authority seems to support the proposition that if there is an inconsistency between the belief of the witness, as indicated by his previous declarations, and that which would naturally be indicated by his examination in chief, such previous declarations may be shown, although they are not directly contradictory of any specific statement made on his examination in chief.' Citing cases.

The cross examining party should not be denied the right to cross examine and impeach or lay the foundation for impeachment of a witness as to a material part of his testimony in chief. Starry v. Starry & Lynch, 208 Iowa 228, 225 N.W. 268; State v. Lawson, 183 Iowa 344, 166 N.W. 1046; Durr v. Clear Lake Park Co., 205 Iowa 279, 218 N.W. 54; State v. Martinsen, 198 Iowa 1325, 201 N.W. 1; 98 C.J.S. Witnesses § 379 and 390; 58 Am.Jur. Witnesses, Secs. 611 and 767. That the cross examination went to a material part of the witness' value testimony is apparent. If permitted to answer the witness could have affirmed, denied, or explained his statements and conduct. The examination should have been allowed.

II. The second contention arose on the examination in chief of defendant's witness, Carl Green. The plaintiff and his witnesses testified in detail as to the inconvenience and difficulty of farming in proximity to the poles, also as to the loss of crops, and knocking down corn. Green testified he owned and operated a 379 acre farm on which was located a transmission line similar to the one on plaintiff's farm, and to his use of machinery similar to plaintiff's. During the course of his examination in chief the witness, Green, was asked the following questions:

1. 'Q. Well, now, in the operation of your farm Mr. Green, tell us what, if any, difficulty you have had with respect to these two pole structures and that one three pole structure?'

2. 'Q. State whether or not the presence of this transmission line easement interferes with the rotation of your fields?'

3. 'Q. And state whether or not the presence of this power line easement interferes in any respect with your ability to operate that farm on a contour farming basis?'

4. 'Q. Now,...