Crist v. Iowa State Highway Commission, 30830

• Citation: 8 A.L.R.3d 1418,123 N.W.2d 424,255 Iowa 615
• Decision Date: 17 September 1963
• Docket Number: No. 30830,30830
• Parties: Owen CRIST and Ruth Crist, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
• Court: Iowa Supreme Court

Page 424

123 N.W.2d 424

255 Iowa 615

Owen CRIST and Ruth Crist, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.

No. 30830.

Supreme Court of Iowa.

Sept. 17, 1963.

Evan Hultman, Atty. Gen., State of Iowa, C. J. Lyman, Sp. Asst. Atty. Gen., Iowa State Highway Commission, Ames, and Keith E. McWilliams, Des Moines, for appellant.

Steward, Crouch & Hopkins, Des Moines, for appellees.

THOMPSON, Justice.

This case shows a familiar pattern: a condemnation proceeding instituted by the defendant, hereafter referred to as the commission, against certain real estate owned by the plaintiffs; dissatisfaction on the plaintiffs with the allowance made by the condemnation commission and an appeal to the district court; a trial there which materially increased the award, and an appeal by the highway commission therefrom.

The plaintiffs property condemned in this proceeding was a lot in the City of Des Moines. It is known in the record as S. or the subject property. It was jointly owned by the plaintiffs and was taken in its entirety. Immediately to the west of this lot, but separated from it by an alley which is shown to have been closed, or impassable, were two other lots, owned by the plaintiff Owen Crist individually. One of these, known as B, was improved with a building, or buildings, another lot, known as P, was separated from B by a space described in the record as 'two doors' south of B. Owen Crist conducted a business known as Owen Crist Auto Body Service, and in so doing used all three lots: B, P, and S. In the area designated as B he did wreck rebuilding, in P he stored cars, and S was also used for storage. There is some indication that Owen Crist Auto Body Service was a corporation. It is not disputed that all three lots were used in conjunction with the business.

Lots B and P were also condemned by the commission, at the same time as the condemnation of S, but in separate proceedings. The appeal here is directly concerned only with S; but B and P are involved because the trial court permitted evidence of the value of S as used in connection with B and P to be considered, with other items of value. The point at issue is best shown by the court's instruction No. 9, which we quote: 'Evidence has been admitted in this case showing without dispute that the property involved herein was just prior to the condemnation used in conjunction with certain other properties owned by the plaintiff Owen Crist not involved in this case. It is proper for you to consider this evidence and give such weight, and such weight only, along with all of the other evidence admitted in this case as bearing upon the fair and reasonable market value of the property involved herein as you feel it justly entitled to receive in the event and only in the event you find that such use would probably continue.

'Although certain evidence has been admitted in this case of the condemnation of certain other properties owned by the plaintiff Owen Crist upon October 14, 1959, marked as Area B and Area P on plaintiffs' Exhibit A, the damages, occasioned to the plaintiff Owen Crist by the condemnation of said other properties are not involved in this case and you may not make any allowance or addition of any sum of money arising therefrom as damages, for such other condemnations have been determined in other proceedings.'

The defendant challenged the competence of the evidence of the use of S in conjunction with B and P as evidence of value, and requested an instruction which would have told the jury that the use of S in conjunction with B and P was not a proper element of value, and that it should not consider the testimony of certain value experts who had included such use in fixing their estimates. So far as the court's instructions and those requested by the defendant are concerned, there is nothing for review on this appeal, because of the failure of the defendant to take proper exceptions as required by R.C.P. 196, 58 I.C.A. However, the question was raised by objections to evidence and so we have it before us.

The defendant says in its brief: 'The major error of the Trial Court in this case was permitting the Plaintiff-Appellee and the Plaintiff-Appellee's valuation witnesses to testify as to the fair and reasonable market value of the subject property as used in conjunction with the other property which the Plaintiff-Appellee, Owen Crist, owned individually.' We accept this as the major complaint of the defendant, and address ourselves to it first in this opinion.

I. The defendant urges that, since the ownership of B and P was not identical with that of S, it was compelled to condemn in separate proceedings. It cites Duggan v. State, 214 Iowa 230, 242 N.W. 98. There William and Mary Duggan, brother and sister, owned an eighty acre tract across which the state condemned a right of way. Immediately adjacent on the west was another eighty acres owned by Mary Duggan individually. It was not touched by the right of way. But the trial court permitted the jury to treat the two tracts as one farm and measure the damages accordingly. We said this was not proper, and reversed. The effect of the trial court's ruling there was to allow the jury to award damages to the second tract, not directly affected by the condemnation and not in the same ownership as that from which the right of way was taken.

We may agree with this holding without in any manner affecting the trial court's rulings here. No damages to tracts B and P, or either of them, were considered or allowed. All that was done was to permit the use of S in connection with B and P to be shown, as affecting the reasonable market value of S. The jury was told that no damages to B and P should be allowed.

The commission also relies upon Hoeft v. State, 221 Iowa 694, 266 N.W. 571, 104 A.L.R. 1008. There the plaintiff owned two separate tracts, shown by the evidence to be used entirely separately; they were rented to and used by different tenants for different tenants for separate purposes and independent of each other. The condemnation was of a strip along the north end of both properties. We said that it was proper to permit the jury to consider the reasonable market value of each tract. The facts do not fit the case at bar, and the case is not in point.

Since the entire tract S was taken the measure of damages was its reasonable market value at the time of taking. Under these circumstances, we have said: 'In this estimation the owner is entitled to have the jury informed of all the capabilities of the property, as to the business or use, if any, to which it has been devoted, and of any and every use to which it may reasonably be adapted or applied.' Ranck v. City of Cedar Rapids, 134 Iowa 563, 565, 566, 111 N.W. 1027, 1028.

The Ranck case lays down broad general rules on the question of admissibility of evidence as to value. Other cases have dealt with the problem before us here more specifically. In Cutler v. State, 224 Iowa 686, 278 N.W. 327, there was involved a 240 acre farm from which the condemned land was taken, and an adjoining 80 acre tract owned in part by the owners of the 240 acres but with some diversity of ownership. The trial court instructed that the 80 acre tract was not a part of the farm to which damage could be attributed, but that the jury might take into consideration the advantage of using the two farms as one in fixing the value of the 240 acre tract before and after the condemned portion was taken from it. We held the giving of this instruction not prejudicial error.

In Nichols, Eminent Domain, Revised Third Ed., Vol. 4, section 12.314, pages 159, 160, it is said: 'Thus, where the adaptability for a specific use depends upon the land being used in combination with lands belonging to other persons, such use may be shown if the possibility of such combination is so great as to have a definite effect in enhancing the market value of the property.' In 18 Am.Jur., Eminent Domain, section 245, page 883, the rule is thus stated: 'Even though the increased market value is due to the adaptability of the property for valuabel uses in conjunction with other properties, it may be considered if the practicability of the combination of all necessary properties on which such availability depends is at the time of the condemnation so great as probably to affect the public mind, and therefore increase the price which a purchaser might be expected to give.' In the case at bar, we have not merely a probability of availability for use in connection with other properties, but the actual and undisputed fact of such use. See also New York v. Sage, 239 U.S. 57, 61, 36 S.Ct. 25, 26, 60 L.Ed. 143, 146; Emmons v. Utilities Power Co., 83 N.H. 181, 141 A. 65, 58 A.L.R. 788, 792; and United States v. 3,928.09 Acres of Land, D.C., 114 F.Supp. 719, 721, and authorities there cited.

It is interesting to note here that the subject tract, S, was zoned R-3, which means for residence purposes only; but that a permit for a non-conforming use to use S in connection with the properties, B and P, had been secured. The record also shows that a driveway had been built from the building on B to the subject lot, S, and S was used as an access area to the roof of the building, where cars were also stored.

It is true the other properties, B and P, were condemned at the same time as S, so that it is probable the use of S in conjunction with them would no longer be possible. But the value of condemned property is fixed as it existed at the time of the taking. Kaperonis v. Iowa State Highway Commission, 251 Iowa 1166, 1171, 104 N.W.2d 458, 461; Ranck v. City of Cedar Rapids, supra, loc. cit. 134 Iowa 565, 111 N.W. 1028. We must evaluate the property taken, with its potentialities and its highest and best reasonable uses, as it was immediately before the taking. We think the trial court properly ruled on the point in question.

It would be a palpable injustice to say that, although the condemned...