Dean v. State
Decision Date | 18 November 1930 |
Docket Number | No. 40563.,40563. |
Citation | 211 Iowa 143,233 N.W. 36 |
Parties | DEAN ET AL. v. STATE ET AL. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Story County; 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, Asst. Atty. Gen., and Addison & Smedal, of Nevada, Iowa, for appellants.
Welty, Soper & Welty, of Nevada, Iowa, and C. G. Lee, of Ames, for appellees.
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 appellants, 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, Mass., 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 “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.
[1][2][3] 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 considerationthe fence costs, as such. Under the law in this state, the costs 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. Railway Co. v. Drainage Dist. No. 5, Sac County, 142 Iowa, 607, 121 N. W. 193;Hanrahan v. Fox, 47 Iowa, 102;Kennedy v. Dubuque & Pacific Railway Co., 2 Iowa, 521;Henry v. Dubuque & Pacific Ry. Co., 2 Iowa, 288. Quotations from the cited cases will illustrate the thought being expressed. In Henry v. Railway Co. (2 Iowa, 288), supra, reading on pages 306 and 307, the court said: * * *”
Continuing on page 307, of 2 Iowa, 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:
Following the former decisions, we again stated in Chicago & N. W. Railway Co. v. Drainage Dist., No. 5, Sac County (142 Iowa, 607, 121 N. W. 193), supra, reading on page 618, 121 N. W. 196:
Finally, in Kosters v. Sioux County (195 Iowa, 214, 191 N. W. 993), supra, reading on page 218, 191 N. W. 995, we again announced:
So it is seen that it was quite immaterial what the fence proposed by appellees might cost at this time. Appellees perhaps would build one kind of fence, while some other landowner in the same locality would...
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