Dean v. State

• Decision Date: 18 November 1930
• Docket Number: 40563
• Parties: J. GEORGE DEAN et al., Appellees, v. STATE OF IOWA et al., Appellants
• Court: Iowa Supreme Court

233 N.W. 36

211 Iowa 143

J. GEORGE DEAN et al., Appellees, v. STATE OF IOWA et al., Appellants

No. 40563

Supreme Court of Iowa, Des Moines

November 18, 1930

Appeal from Story District Court.--T. G. GARFIELD, Judge.

This was a proceeding by the plaintiffs, to recover, as against the defendants, from the funds available therefor, damages for the condemnation of a highway through the former's land. There was a trial to a jury, which returned a verdict for the plaintiffs, and assessed the amount of the recovery at $ 8,500. Accordingly, judgment for that amount was entered by the district court. From this judicial action the defendants State of Iowa, state highway commission of Iowa and R. W. Nebergall, sheriff of Story County, appeal.

Reversed.

Maxwell O'Brien, Assistant Attorney-general, and Addison & Smedal, for appellants.

Welty Soper & Welty and C. G. Lee, for plaintiffs, appellees.

KINDIG J. MORLING, C. J., and EVANS, FAVILLE, and GRIMM, JJ., concur.

OPINION

KINDIG, J.

J. George Dean and Caroline M. Dean, plaintiffs and appellees, are the owners of a farm in Story County. This farm consists of 311 acres. On June 3, 1929, the state of Iowa, through its highway commission, defendant and appellant, appropriated by condemnation approximately 7.99 acres of that land for highway right of way purposes. This highway under consideration crossed appellees' land in an easterly and westerly direction, in such a manner as to leave approximately 140 acres on the north side thereof and about 170 acres to the south of it. The commission, on June 19, 1929, assessed the damages thereby accruing to appellees in the sum of $ 3,801. An appeal was taken by the appellees from the finding of that commission to the district court, where the hearing on the disputed question of damages commenced before a jury January 31, 1930. As before suggested in the preamble to this opinion, that body returned a verdict for appellees in the sum of $ 8,500. From the judgment thereon entered by the district court, the defendants State of Iowa, state highway commission, and R. W. Nebergall, sheriff of Story County, appeal.

Midland Mortgage Company, of Cedar Rapids, Iowa, and John Hancock Mutual Life Insurance Company, of Boston, Massachusetts, defendants, did not appeal, and therefore are designated appellees: but hereafter during this discussion, for convenience, "appellees" will refer to J. George Dean and Caroline M. Dean; while the word "appellants" refers to the State of Iowa and the state highway commission of Iowa.

Numerous grounds for reversal are set forth by the appellants, but, because of our conclusion in the premises, it is necessary to consider only two of them.

I. It is said by appellants that the district court erred during the trial in admitting evidence concerning the cost of fencing appellees' land along the new highway. According to appellees' petition, the establishment of the road in question made it necessary for them to build and maintain 534 rods of extra fence. When introducing evidence in their own behalf, the appellees, by several witnesses, sought, over appellants' objections, to show the itemized cost of building such fence. The district court admitted the evidence. Responding to that evidence, the district court, in its charge to the jury, among other things stated:

"In determining the difference in the fair and reasonable market value of plaintiffs' farm before and after the establishment of the highway in question, you are authorized to take into consideration, along with other facts and circumstances, * * * the reasonable cost of necessary fencing occasioned by the taking of the right of way. "

Thus, appellants contend, the jury, in fixing appellees' damages, naturally would believe that they could properly take into consideration the fence cost, as such. Under the law in this state, the cost of fencing, as such, cannot be considered by the jury. Nevertheless, in determining the minimized value caused appellees' farm by the establishment of this road, the jury may properly consider the fact that a fence will necessarily have to be built, repaired, maintained, and replaced. But in doing that, the necessity of the fence must be considered in its tendency to minimize the value of the farm, rather than as an independent and separately itemized item of damages. The question is not what the particular fence desired by appellees at this time may cost; but rather, the underlying inquiry is whether the farm as a whole, in view of the purposes for which it is adapted, will be minimized in value because extra fencing may be required and such fence might need to be repaired, maintained, and replaced. Having heard the evidence regarding the cost which the fence proposed by appellees would involve, and having received the district court's instruction relating thereto, the jury naturally would be led away from the ultimate goal to be reached by them, and induced to consider that cost, as such, as an added element to appellees' damages. That the jury should not do. Kosters v. Sioux County, 195 Iowa 214, 191 N.W. 993; Chicago & N.W. R. Co. v. Drainage Dist., 142 Iowa 607, 121 N.W. 193; Hanrahan v. Fox, 47 Iowa 102; Kennedy v. Dubuque & Pac. R. Co., 2 Iowa 521; Henry v. Dubuque & Pac. R. Co., 2 Iowa 288. Quotations from the cited cases will illustrate the thought expressed. In Henry v. Dubuque & Pac. R. Co., 2 Iowa 288, supra, on pages 306 and 307, the court said:

"But, however this may be in that state, we conclude that the radical error consists in the allowing pay for fence, as fence, at all. When we say this, we are not unmindful of the numerous decisions of other states, to the effect that the expense of fencing is a proper item to be included in damage for taking land for railway purposes, many of which have been cited by appellee. But when we say that a party should not be allowed for fence as fence, in the assessment of damage, we by no means mean to be understood that having his land thrown open and left in a manner unfenced is not to be considered * * *."

Continuing on page 307, the court suggests:

"We think it a good reason, then, for saying that the commissioners should not allow for fence as fence, that peradventure a fence may never be needed."

Again, in Hanrahan v. Fox (47 Iowa 102), supra, this court declared:

"The testimony of the witnesses fixed the damages to the 40 acres owned by the plaintiff in his own right at not less than 10 nor more than 15 dollars, for the actual value of the land taken, and $ 35 as the cost of building 40 rods of fence made necessary by the establishment of the road. The court excluded the testimony as to the cost of building the fence, and assessed the amount of plaintiff's damages at $ 15. The opinion in the case of Henry v. Dubuque & Pac. R. Co., 2 Iowa 288, is an elaborate exposition of the true method of arriving at the compensation due the owner for an appropriation of his land for public purposes. The decision in that case has been followed since that time by the courts of this state, and we see no reason to establish other and different rules. It is there held that the owner should not be allowed for fence as fence, in the assessment of damages. That 'it will not do to say that the proprietor will have to fence his land, therefore he should be allowed some definite price for some particular kind of fence.' 'That, if by the establishment of the road the land is thrown open and left in a manner unfenced, this fact may enter into the consideration in arriving at the depreciated value of the remaining premises.'"

Following the former decisions, we again stated, in Chicago & N.W. R. Co. v. Drainage Dist. (142 Iowa 607, 121 N.W. 193), supra, on page 618:

"There is a further reason why the plaintiff cannot recover as damages the cost of constructing a new bridge, in the absence of a statute so providing. It is not the true measure of damage, under any rule applicable to ad quod damnum cases. In cases involving damages for establishment of highways, it was held by this court, in an early day, that the claimant for damages could not recover, as such, the cost of constructing a fence, although such fence was rendered necessary by the establishment of the highway. Hanrahan v. Fox, 47 Iowa 102. The fact that the land was thrown open was a fact which could be considered in estimating the damages, but not the cost of a particular fence."

Finally, in Kosters v. Sioux County (195 Iowa 214, 191 N.W. 993), supra, on page 218, we again announced:

"In determining the amount of damages, it was proper for the jury to take into consideration all pertinent facts pertaining to the condition of the farm before and after the construction of the road. The award of damages is not to be made, however, by the assessment of a series of specific items. In Henry v. Dubuque & P. R. Co., 2 Iowa 288, we held that the owner of premises taken should not be allowed for 'a fence as fence,' in the assessment of damages, and that it would not do to say that the proprietor would have to fence his land, and therefore he should be allowed some definite price for some particular kind of fence; that if, by the establishment of the road, the land is thrown open, and left in a mere unfenced condition, this fact might enter into the consideration in arriving at the depreciated value of the remaining premises. See, also, Hanrahan v. Fox, 47 Iowa 102. And so, in the instant case, the appellee could not recover the sum total of various specific items, such as the cost of fence, the cost of a passageway, and other similar items. The damage is to the farm as a whole, and must be awarded in a lump sum."

So it is seen that it was quite immaterial what the fence proposed by appellees might cost at this time. A...