Des Moines Wet Wash Laundry v. City of Des Moines

• Citation: 198 N.W. 486,197 Iowa 1082
• Decision Date: 06 May 1924
• Docket Number: 35675
• Parties: DES MOINES WET WASH LAUNDRY, Appellee, v. CITY OF DES MOINES, Appellant
• Court: United States State Supreme Court of Iowa

198 N.W. 486

197 Iowa 1082

DES MOINES WET WASH LAUNDRY, Appellee, v. CITY OF DES MOINES, Appellant

No. 35675

Supreme Court of Iowa, Des Moines

May 6, 1924

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

PROCEEDING in eminent domain. From the award of the sheriff's jury an appeal was taken to the district court, and upon trial to a jury, a verdict of $ 1,500 was returned. From the judgment entered thereon, the city of Des Moines appeals to this court.

Affirmed.

John J Halloran, Reson S. Jones, Chauncey A. Weaver, and Paul Hewitt, for appellant.

Nourse & Nourse, for appellee.

DE GRAFF, J. ARTHUR, C. J., STEVENS and VERMILION, JJ., concur.

OPINION

DE GRAFF, J.

This is a proceeding in eminent domain. In August, 1919, the city of Des Moines, as part of a purpose in carrying out a project known as Keosauqua Way, condemned certain land on which was situated a building used and occupied under a lease by plaintiff, for a laundry. It appears that, in 1916, plaintiff entered into a written contract of lease with the owner of the fee, whereby the latter agreed to build and lease, and did build and lease, a brick structure 30x60 feet, a store room and garage combined, 30x20 feet, and a smaller garage, 10x20 feet. The buildings so constructed and leased were used by appellee from their completion to the time of condemnation by the defendant city. The lease was for seven years, at $ 45 per month, and at the time of the surrender of the premises to the city, the term had three and one-half years to run. The condemnation and removal of the leased premises by the city terminated plaintiff's business and destroyed its plumbing and steam connections, installed and equipped at its own expense, and compelled it to tear up and remove its machinery and appliances to another location. The evidence shows that the leased premises had a rental value, at the time of the condemnation, of $ 80 to $ 85 per month, and would have been worth more during the remainder of the lease. The jury by its verdict determined the value of plaintiff's leasehold interest for the remainder of the term to be $ 1,500, and allowed that sum, with interest at 6 per cent, from the time of the taking of the premises, August 20, 1919.

The propositions advanced by the appellant city on this appeal primarily have to do with the instructions given by the court to the jury. The instructions per se disclose the character of the overruled objections made to the introduction of the evidence upon which the instructions are predicated. The trial court gave a clear and comprehensive charge, calling the attention of the jury to the facts and circumstances presented by the evidence, and this opinion necessarily addresses itself to these matters.

The defendant city had the right to take the property in controversy for public use, and there was a compliance with the statute in the exercise of the right of eminent domain. We have, therefore, a well defined issue, finding its origin in the instructions bearing on the elements or items of value which the jury were privileged to take into consideration in determining the damages to be awarded. The jury was told that the plaintiff was entitled to recover, on account of the taking of plaintiff's leasehold for street and highway purposes, "the difference in the fair and reasonable market value of the leasehold on August 20, 1919, before the same was taken by the defendant, and the fair and reasonable market value of the same immediately after the same had been condemned and taken by the defendant," without any reference to the enhanced value or benefits, if any, by reason of the improvement. The jury was then instructed:

"No. 6. As bearing upon the question of the fair and reasonable market value of plaintiff's leasehold, as heretofore defined, not as distinct and independent items of damages, but as elements bearing upon and as tending to show the reasonable market value thereof, as defined in the preceding instruction, you may consider all the varied elements of value, as disclosed by the evidence in the case, in regard to the location of said premises; the surroundings thereof; its accessibility; nearness to the business center, the use to which the same has been put; the purpose for which the buildings and improvements located thereon are used; the general construction of such buildings; the depreciation to such buildings, if any, since they were constructed, by reason of their use for the purposes for which they were constructed and used; the manner of using the same in connection with the business plaintiff was conducting with the equipment in said building. As a further element bearing upon and as tending to show the fair and reasonable market value of said leasehold, as heretofore instructed, you may consider the general character of the machinery, as installed on said leased premises; its condition; the date when the same was installed; the manner of installation; and the fair and reasonable cost of installing the same machinery in the new location to which it became necessary to remove the same by reason of the condemnation of said leasehold interest, as you may find from a preponderance of the evidence. As a further element bearing upon and as tending to show the fair and reasonable market value of plaintiff's leasehold, you may consider the fair and reasonable cost of removing the machinery and equipment from said leased premises, and the fair and reasonable cost of cartage or transportation for a reasonable distance, which you may find was necessary. And if you find from a preponderance of the evidence that the place where said machinery so installed in the new location was a reasonable distance, such as might reasonably be necessary for the proper preservation and protection of said machinery, then such cartage and transportation to the place where the same was installed may be included in the damages which plaintiff has sustained in your determination of the reasonable value of the leasehold, as heretofore instructed, as well as all the other facts and circumstances in evidence which tend to establish the value of said leasehold at the time it was taken."

A tenant for years is the owner of an estate, and is entitled to compensation for an injury done in taking his property for public uses. In general terms, the proper measure of damage is the depreciation in the market value of the property caused by the condemnation in the location and construction of the highway. Two questions arise: What was the value of the property,--that is, the value of the tenant's leasehold,--unaffected by the injury? Second, what was its value at the time of surrender, as affected by the injury? The difference is the true measure of the compensation. In strict terms, the tenant's recovery is restricted to the value of the unexpired term. It is the value of the unexpired term of the lease, less the rental reserved. In the ascertainment of this value, what circumstances or elements are proper to take into consideration? It is impossible to specify all of the elements that enter into such a problem. In fact, all of them cannot be anticipated, and many of them are developed in the course of the litigation consequent upon the exercise of the right of eminent domain. They will vary with the character of the property affected and the uses to which the property is applied. In the instant case, the estate of the plaintiff was limited to a particular use. The laundry business was the only business within the contemplation of the lease. If he was caused to abandon his leasehold, it became worthless. Its enjoyment required that the appliances which had been specially constructed for a particular use in the building remain in operation. They were, in fact, as to locus in quo, rendered useless. There was no duty on the part of the city to provide similar facilities to the lessee, but damages were insured to him. Therefore, the various matters referred to in the court's instruction were properly received in evidence "as descriptive of the injury inflicted, * * * and they were for the consideration of the jury, not as specific items of claim, but as affecting market value." Schuylkill River E. S. R. Co. v. Kersey (Pa.), 19 A 553. The instant circumstances are somewhat novel, but not unusual. The matters mentioned by the court were elements which evidently and properly entered into the consideration and determination of the value of the lease. The defendant was bound to make just compensation to plaintiff, from whom the property was taken. There was no attempt--covert or otherwise--to recover profits in the business. This was an item that would be too remote and speculative, and the authorities quite universally so hold. St. Louis, K. & N.W. R. Co. v. Knapp-Stout & Co., 160 Mo. 396 (61 S.W. 300); Ranlet v. Concord R. Corpn., 62 N.H. 561; Emery v. Boston Terminal Co., 178 Mass. 172 (59 N.E. 763); ...