Cowles Communications, Inc. v. Board of Review of Polk County, 59900

Citation266 N.W.2d 626
Decision Date17 May 1978
Docket NumberNo. 59900,59900
PartiesCOWLES COMMUNICATIONS, INC., Appellee, v. BOARD OF REVIEW OF POLK COUNTY, Iowa, Appellant.
CourtUnited States State Supreme Court of Iowa

Ray A. Fenton, County Atty., J. R. McManus, Special Counsel, Des Moines, for appellant.

Roger L. Ferris, of Nyemaster, Goode, McLaughlin, Emery & O'Brien, Des Moines, for appellee.

Considered by MOORE, C. J., and MASON, RAWLINGS, UHLENHOPP and REYNOLDSON, JJ.

MASON, Justice.

The Board of Review of Polk County (Board) appeals from the decree of the Polk District Court ordering removal from the real estate tax roll of the television tower, antenna and other transmission equipment of station KCCI owned by plaintiff Cowles Communications, Inc., because the court found such property to be personal property under section 427A.1(3), The Code, 1975.

April 8, 1975, the Polk County Assessor mailed Cowles its real estate assessment roll for the period July 1, 1975, to June 30, 1976. This document informed Cowles the assessor considered all its land, building and transmission equipment at its 9th and Pleasant streets address as real property. The total value of Cowles' property at that address was listed as $1,135,790 of which $685,382 was the value of the tower, antenna and transmission lines, $226,263 was the value of the transmitter equipment, $45,345 was the value of other miscellaneous equipment, $151,300 was the value of the building, and $27,500 was the value of the land on which were located the building and other property.

This document also contained a notice to taxpayers that if they were not satisfied the assessment was correct, they could protest to the Board between April 16 and May 5. Attached to Cowles' petition for review in the district court was a copy of a protest filed by it May 5. It is stated therein that the property consisting of the tower, antenna, transmission lines, transmitter and miscellaneous equipment was not assessable because it constituted personal property. Also attached to the petition was a copy of an amended protest whereby Cowles sought to correct errors made in the original assessment roll. Cowles contends this was filed May 30. The Board denies it was filed.

July 1 Cowles filed an application to prescribe the method of service of notice of appeal. In this application Cowles stated it could not serve notice of appeal from the Board's action because the Board's chairman, Walter Potts, Jr., was then in Alaska and would not return within the 20 days within which appeals from such action must be taken pursuant to section 441.38, The Code, 1975. Cowles pointed out Charles Colby, Jr., was vice chairman of the Board and had served as presiding officer at its protest. Cowles asked the court to prescribe an alternative method of service pursuant to rule 56.1(n), Rules of Civil Procedure.

The court filed its order stating Cowles could serve Colby with notice of appeal.

Contained in the record is a copy of a return of service made upon Colby. This return contains the statement the sheriff received the original notice July 10 and it was served July 11.

July 10, Cowles filed a petition in equity seeking review of the Board's action. The allegations of this petition will be discussed in conjunction with the Board's answer.

November 6, the Board filed a special appearance contending the court lacked jurisdiction because proper written, timely notice of appeal had not been served on the chairman or presiding officer of the Board as required by section 441.38 and the order of the court. In its resistance to the special appearance, Cowles pointed out the return of service had been misfiled. The court overruled the special appearance once the return of service was properly filed.

January 15, 1976, Cowles filed a motion for default judgment contending the Board had failed to appear or answer within seven days of the overruling of its special appearance. Four days later the Board filed an answer generally denying each allegation of Cowles' petition. The court then overruled Cowles' motion.

February 9, the Board filed an amended and substituted answer. In paragraph one of this answer it admitted Cowles' allegation it was appealing from the action of the Board. It admitted in paragraph four Cowles had protested the assessment roll to the Board. The seventh paragraph contained an admission it had sustained Cowles' protest as to some miscellaneous equipment and had denied its protest with respect to the tower, antenna, transmission lines and remaining equipment.

In paragraph twelve the Board denied Cowles' twelfth paragraph. It also denied the court had jurisdiction of the appeal or of the subject matter of the appeal because no proper notice of appeal had been served on the chairman or presiding officer of the Board in the manner prescribed in section 441.38 or in accord with the Iowa Rules of Civil Procedure. At trial of this matter the Board made a motion to dismiss the appeal at the close of Cowles' evidence and renewed the motion at the close of all the evidence. Both motions were overruled.

The court issued its findings of fact and conclusions of law on September 1, 1976, and entered its decree on September 22.

From our review of the record it is our view the facts giving rise to this appeal are well narrated in the court's decree. In an effort to afford the reader a better understanding of the problems presented we set out the pertinent parts thereof:

" * * *rev

"The television tower is 1880 feet high and consists of steel components bolted to one another. The components are bolted together into thirty foot sections and these sections are in turn bolted together to form the tower. No fastening devices are used other than nuts and bolts. The tower is bolted to a concrete foundation, and is not attached to the foundation except by nuts and bolts. Three ground wires are welded to each of the tower's three legs and run into the ground where they are attached to steel rods. The ground wires are not attached to the concrete foundation. The tower is supported by 27 guy lines running from the tower to nine concrete anchors. The three guy lines running to each anchor are attached by three 'U' bolts. No fastening devices except the 'U' bolts are used. The tower, including guy lines, is constructed in a way that it can be removed without modification or alteration of the tower, the foundation, or the anchors. The tower will support an antenna having weight and wind load characteristics equal to or less than the antenna presently placed upon it. If disassembled it could be reassembled as either one tower or as a number of smaller towers. It could be used for purposes other than a television tower. It could be re-erected any place west of the Mississippi or south of the junction of the Mississippi and Ohio Rivers, less approximately ten percent of the foregoing area. It can be broken down entirely or shipped in thirty foot sections by rail or truck.

"The antenna is bolted to the top of the tower; it is not affixed to the tower except by nuts and bolts. It is 118 feet high including the beacon. The antenna can be used by any channel 8 television station, of which there are approximately 52 in the United States. It is constructed in a manner that it may be removed from the tower without altering or modifying the antenna, tower or transmission lines.

"The transmission lines run from the antenna to the transmitter. Its twenty foot sections and shorter elbows plus together and are secured by nuts and bolts. The transmission line is attached to the tower by clamps which are bolted to the tower. The transmission line is not connected together nor to any other equipment other than by nuts, bolts, and clamps. It is removable without alteration or modification of the transmission line or any equipment to which it is attached. The transmission line could be used by eighty percent of the 971 UHF and VHF stations in the United States.

"The transmitter is located in a building at the plaintiff's Alleman site. Its principal parts are the main transmitter cabinet, two power supply cabinets, an optoswitcher and filterplexer. All of these parts are interconnected. The transmitter is connected to a power supply, transmission line, and exhaust system. Some parts of the transmitter are bolted to the floor. All connecting devices attaching the transmitter to the building or to its own component parts previously listed are of a nature that they can be removed without modification or alteration of the building, other equipment, connecting devices or the transmitter. The transmitter may be removed from the building without alteration to the building or to the transmitter. It can be transported on a truck. The plaintiff's transmitter can be used by any Channel 7 through 13 television station, of which there are approximately 250 in the United States.

"The transmitter related equipment is primarily located in six equipment racks in plaintiff's building. The various individual items are attached to each other and to the rack by screws and electrical or signal connections. All of this equipment is removable without alteration or modification to the equipment itself or to the other equipment or building to which it is attached.

"All of the items listed in Plaintiff's Exhibit 1 are constructed and installed in a manner to make them movable, and are movable. There is a market for all of the items as used equipment. Other television stations have moved such equipment, have sold such equipment and have purchased such equipment. Vendors repossess such equipment, and take some of the equipment as trade-ins on new equipment. Transmitters are placed in operation at the factory and tested prior to shipping. Television stations, when changing their location, have moved such equipment to their new locations. They have also removed such equipment from their old locations without moving it to a new location.

"With specific regard...

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