Bellew v. Iowa State Highway Commission

Decision Date14 October 1969
Docket NumberNo. 53353,53353
PartiesEthel Cook BELLEW, Appellee, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
CourtIowa Supreme Court

Richard C. Turner, Atty.Gen., Henry L. Holst, Special Asst.Atty.Gen., James E. Graham, Asst.Atty.Gen., both Counsel for Iowa State Highway Commission, Ames, and James B. Smith, of Shirley, Smith & Shirley, Perry, for appellant.

Allan A. Herrick, of Herrick, Langdon, Belin & Harris, Des Moines, for appellee.

MASON, Justice.

Iowa State Highway Commission appeals from the trial court's award of $71,000 as damages resulting from condemnation of a 40-acre strip of ground taken diagonally through plaintiff's farm for highway purposes. Ethel Cook Bellew, land owner, appealed to the district court from condemnation commission award of $38,391 asking damages of $147,557. This appeal was tried to the court without a jury.

Section 472.21, Code, 1962, requires condemnation appeals to the district court be docketed showing condemnee as plaintiff and condemnor as defendant.

Plaintiff's farm, located two miles west of West Des Moines, was prior to the taking, on the main east-west blacktop leading into West Des Moines, known as Ashworth Road. It consisted of approximately 149.5 tillable acres in the Southwest Quarter (SW1/4) of the Southeast Quarter (SE1/4) of Section 3 and the Northeast Quarter (NE1/4) of the Northwest Quarter (NW1/4) and the North Half (N1/2) of the Northeast Quarter (NE1/4) of Section 10, all in Township 78 North, Range 26 West of the Fifth P.M., Dallas County, acquired by plaintiff in 1956. There is a small church site out of the southwest quarter of the land in section 3. The land had always been farmed as a unit. There was no contrary suggestion.

Before the taking the farm was severed along the section line between sections 3 and 10 by Ashworth Road. The 40 acres in the northeast quarter of the northwest quarter was separated from the 80 acres in the north half of section 10 by a northsouth county gravel road. Plaintiff's land south of the highway had 2640 feet of frontage on Ashworth Road. The land north of the highway had a frontage of approximately 1320 feet.

Defendant by condemnation took only 1.9 acres of the land north of the road but in so doing, destroyed the 1320 feet of frontage on Ashworth Road. It took 34.7 acres of land on the south side, destroying an additional 2640 feet of highway frontage. The condemnation took 3.4 acres from the southwest 40. The gravel road which went along the east side of this tract now dead ends at the point where the interstate enters this tract. As a result of the condemnation the part of Ashworth Road through plaintiff's property along the 80 acres on the south and the 40 acres on the north has been destroyed. For all practical purposes it now ends at the east line of plaintiff's property.

Plaintiff asserted as items of damage suffered by reason of the condemnation: (a) Taking 40 acres of plaintiff's real estate, almost three fourths of a mile of which fronts on the paved highway through the property, (b) Destroying the paved highway on the property leading directly into West Des Moines on Ashworth Road, (c) Requiring the building of 332 rods of new fence and the removal of 14 rods of said fence, (d) Taking and interfering with plaintiff's right of free and reasonable access to different parts of plaintiff's property and the highways thereon, (e) Destroying the desirability of plaintiff's land for subdivision purposes and cutting off frontage on the paved highway, (f) Damage from inconvenience and expense to plaintiff in the operation of her farm by rendering different portions thereof inaccessible and leaving the remaining fields irregular and difficult to farm, and (g) Consequential damages to plaintiff's remaining property, to the improvements thereon and use thereof.

The parties agree that in the trial court 'the issues were the highest and best use of the farm before the taking on October 13, 1965, and the damages based upon the difference between the before and after values of the farm, as a whole, which were decided by the Court sitting as trier of law and fact'.

Plaintiff's witnesses determined and testified the highest and best use of plaintiff's land was for suburban residential development. Defendant's witnesses determined and testified the highest and best use of plaintiff's land was as farm land.

The court, as trier of fact, decided the highest and best use was for suburban residential development.

I. Defendant's four assignments of error relied on for reversal are based on the court's adverse rulings on admissibility of evidence.

Over defendant's objection plaintiff introduced considerable evidence to show properties along Ashworth Road immediately east of plaintiff's property were being subdivided and building lots sold for substantial values. Her three expert witnesses cited approximately 20 sales, the greater number consisted of two or less acres of from 110 feet to perhaps 400 feet frontage on Ashworth Road. The majority of such frontages were 300 feet or substantially less. Fourteen of the sales were one acre or less. Others involved five- and ten-acre sales, a 36-acre sale and a 112-acre sale. These witnesses stated the sale prices of the various tracts under consideration.

Defendant's motion to strike testimony of plaintiff's witnesses Brandt, Richards and Kesterson on the grounds that properties relied on by them as comparable to plaintiff's property were not comparable was overruled.

Defendant contends the court erred in admitting evidence of 'other sales' as direct evidence of the value of plaintiff's farm with no foundation laid as to time of sale, size of properties, mode of sale, or nature of the property sold, when in fact the sales were not comparable as a matter of law. The commission contends none of the sales of tracts referred to by plaintiff's expert witnesses are sufficiently comparable to be admissible for any purpose here. Although agreeing the admission of evidence to illustrate the adaptability of raw farm land for acreage or subdivision development is not error, it maintains the price at which these lots might be sold, if such development did occur, is not admissible as substantive evidence as it is based on speculation and conjecture and represents what price might be paid sometime in the future. It therefore does not represent the actual cash market value of the property.

It is true "since Redfield v. Iowa State Highway Commission, 251 Iowa 332, 99 N.W.2d 413, 85 A.L.R.2d 96, evidence of sales of comparable property has been admissible as substantive evidence of the fair market value of the subject property. However, it must be shown that there is sufficient similarity to the subject property before such evidence is admissible. (Citations.)' Martinson v. Iowa State Highway Commission, 257 Iowa 687, 694--695, 134 N.W.2d 340, 344; Belle v. Iowa State Highway Commission, 256 Iowa 43, 48, 126 N.W.2d 311, 314.

"Other similar sales need not be identical but must have a resemblance in order to be shown in evidence. Size, use, location and character of the land and time, mode and nature of the sale all have a bearing on the admissibility of such evidence. Much must be left to the sound discretion of the trial court in determining whether the other properties and conditions surrounding sale thereof are sufficiently similar so evidence of such sales is admissible. (Citations)' Iowa Development Co. v. Iowa State Highway Commission, 252 Iowa 978, 986, 108 N.W.2d 487, 492.' Crozier v. Iowa-Illinois Gas & Electric Co., Iowa, 165 N.W.2d 833, 834--835.

In answer to the commission's assertion of error plaintiff does not claim the sales were sufficiently comparable nor does she take issue with the above rule. She asserts evidence of other sales in small tracts for residential purposes of other land fronting on Ashworth Road adjoining or in close proximity to plaintiff's Ashworth Road frontage was admissible to show adaptability of plaintiff's land for residential purposes and as showing the familiarity and knowledge of plaintiff's expert witnesses of sales and of land values in the vicinity of her land.

Plaintiff contends the trial court made it clear it had considered the evidence of other sales only for the limited purpose of showing the property abutting Ashworth Road was being subdivided rather than as direct proof of the value of particular lots, and to show the highest and best use of plaintiff's land was for residential purposes as was land east of it, not for agricultural purposes. In support she quotes this from the trial court's findings of fact, 'There was considerable testimony introduced as to other sales of real estate, especially for building lots, along Ashworth Road in the immediate area of plaintiff's land. * * * The court feels they have some value to show the highest and best use of real estate and to show that the property abutting Ashworth Road was being subdivided, rather than any direct proof of actual value of particular lots. In other words, it does show regardless of the subdivided lots, that the highest and best use of plaintiff's land was for what plaintiff claimed for it and plaintiff's experts claimed for it, not strictly agricultural.'

In Mohr v. Iowa State Highway Commission, 255 Iowa 711, 720--721, 124 N.W.2d 141, 147, we said:

'In general, considerable latitude is allowed in the admission of evidence of the capabilities of land affected by a condemnation and the uses to which it may reasonably be adapted. It is true there must be a present demand for the land for such uses or reasonable expectation of such demand in the near future. It must be remembered too that such evidence is to be considered only for the effect it has on market value at the time of the taking, not at some future time.

'This from Ranck v. City of Cedar Rapids, 134 Iowa 563, 565--566, 111 N.W. 1027, 1028, states the rule we have applied: '* * * the owner is...

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