Costello v. Burke
| Decision Date | 24 April 1884 |
| Citation | 19 N.W. 247,63 Iowa 361 |
| Parties | COSTELLO v. BURKE |
| Court | Iowa Supreme Court |
Appeal from Dallas Circuit Court.
THE defendant filed his petition with the board of supervisors for the establishment of a highway. Such proceedings were had upon this petition that the establishment of the highway was recommended by a commissioner who was appointed to examine into the expediency of establishing the same. After the commissioner's report was filed, notice was personally served on plaintiff, requiring all claims for damages on account of the location of the highway to be filed by a day therein named. Such notice was also published in a newspaper in the county. Within the time prescribed by the notice plaintiff filed the following claim for damages:
Appraisers were thereupon appointed, who assessed his damages at $ 87.53, and, this assessment being approved by the board of supervisors, he appealed to the circuit court.
On the trial in the circuit court, plaintiff introduced in evidence the abstract of original entries, and the record of certain mesne conveyances, which show that on the 22d day of August 1862, the title to the land described in plaintiff's petition was in one John Bennington, and the conveyance to him recites that his place of residence was Brown county Ohio. Plaintiff also introduced a conveyance of said land (a warranty deed) from Lucinda Bennington, Elizabeth E. Leggett, Harriet C. King, Mary K. Shaw and Fanny G. Bennington to William Costello. This deed recites that the grantors are the widow and children and heirs at law of John Bennington, deceased, late of Brown county, Ohio. Also the judgment entry in a cause brought by the grantors in the last named deed in the circuit court against one Ernestine Edenburn, to cancel a mortgage on said land, by which it was determined that John Bennington at the time of his death was the owner of said land, that he died in 1872, and that the plaintiffs in that action were his only heirs at law; also the transfer book kept in the county auditor's office, which showed a transfer of the land, by warranty deed, from William Costello to Michael B. Costello.
Plaintiff testified that he had been in actual occupancy of the land for over two years, that he owned it, and that his occupation of it was as owner. The court instructed the jury that the evidence was insufficient to establish that plaintiff had title to the land; that he was not entitled to damages on account of the appropriation of the land for a highway; but that he might recover for such immediate and necessary consequences as resulted to him as the occupant of the land, by reason of the establishment of the highway. The jury assessed the damages at $ 75. Plaintiff appeals.
AFFIRMED.
Cardell & Shortley, for appellant.
North & Barr and Barcroft, Brown & Sickmon, for appellee.
I.
The questions argued by counsel relate to the instructions given to the effect, First, that plaintiff was not entitled to recover the value of the land appropriated, without proof that he was the owner thereof; and, Second, that the evidence was not sufficient to establish the ownership of the property. The position of the appellant with reference to the first question is, that the title to the property is not involved in the proceeding; that the proceeding is against the land, and the damages are assessed with reference to the effect of the appropriation on the market value of the premises;...
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