Duggan v. State, 41196.

• Decision Date: 05 April 1932
• Docket Number: No. 41196.,41196.
• Parties: DUGGAN ET AL. v. STATE ET AL.
• Court: Iowa Supreme Court

214 Iowa 230

242 N.W. 98

DUGGAN ET AL.

v.STATE ET AL.

No. 41196.

Supreme Court of Iowa.

April 5, 1932.

Appeal from District Court, Tama County; B. O. Tankersley, Judge.

An ad quod damnum proceeding for the purpose of taking certain land for highway purposes. The jury returned a verdict fixing the damages at $8,849.68, and, from a judgment entered on said verdict, the defendants appeal.

Reversed.John Fletcher, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and Walters & Kepford, of Toledo, for appellants.

Thomas & Thomas, of Traer, and Willard F. Russell, of Toledo, for appellees.

ALBERT, J.

The west one-half of the southwest quarter of section 34, township 82 north, range 15 west of 5 P. M. was, at the time in controversy herein, owned jointly and in fee by William Duggan and Mary Duggan, brother and sister. There were a dwelling house, barn, sheds, feed lots, etc., in the southeast corner thereof. Mary Duggan was the absolute owner in fee of an 80-acre tract lying just west of the first-named tract, to wit, the east one-half of the southeast quarter of section 33 in the same township and range. This 80 was unimproved.

Proper proceedings were instituted for condemnation of a right of way for a highway crossing the east 80-acre tract above described. So far as we are able to determine from the record in the original condemnation proceedings, the west 80 (the Mary Duggan 80) was not mentioned. The right of way sought to be taken was 100 feet wide, and entered this land at the southwest corner of the east 80, thence went in a northerly and easterly direction, and passed out of this 80 at a point some rods south of the northeast corner thereof. No land whatever was taken for this highway from the west 80-acre tract.

On the trial in the district court, the court, over proper objections of the defendants, permitted the claimants, despite the different ownerships, to treat these two tracts of land as one farm and measure the damages accordingly. This gives rise to the first question in the case.

The evidence shows that lying immediately west of the Mary Duggan 80 is another 80 owned by William Duggan individually, on which there is also a set of farm improvements in the southwest corner. At the present time, and for some years past, the Mary Duggan 80 and the 80 east thereof, owned by William and Mary, have been leased and used as one farm.

[1][2] The first question raised is whether or not the damages should have been measured, despite the diversity of ownership, by considering the two east 80's as one farm. To justify this method of determining damages, the appellees rely upon Hanrahan v. Fox, 47 Iowa, 102;Wolfe v. Railway Co., 178 Iowa, 1, 155 N. W. 324;Longstreet v. Town of Sharon, 200 Iowa, 723, 205 N. W. 343.

In the Hanrahan Case, supra, certain parties were the owners jointly of the northeast quarter of section 23, and one of them was the owner in his own right of the northwest quarter of section 24. No such question was raised in that case as in the one before us, and, in addition, the condemned right of way crossed both tracts of land.

In the Wolfe Case, condemnation was sought for a right of way for a railroad across an 80-acre tract of land. One May-bauer, who held the legal title, sold the land on contract to Wolfe & Wolfe. In that case all parties were interested in the same tract of land, and the real bone of contention was as to who were the “owners” thereof within the meaning of the condemnation statute. No such question was involved there as in the instant case.

In the Longstreet Case, supra, the town of Sharon was constructing a sewer system and a disposal plant and needed land for an outlet and a disposal plant. Longstreet owned a 10-acre tract in fee, and he and his wife and one Jones were interested in a 38-acre tract. A part of this land was crossed by the main sewer leading to, and the other tract crossed by the outlet leading from, the disposal plant. It was urged in the case that there was no authority, under the statute or in law, for the parties to file joint proceedings in condemnation when one of the tracts involved is owned by one of the parties individually. It was also urged that there was a misjoinder of parties plaintiff, and the opinion was that the objection on the ground of misjoinder came too late. We further said in that case, answering an objection that the damages should not have been assessed in a lump sum to both tracts of land, that, so long as the jury found the damages to each tract separately, the appellant was not harmed. It further appeared in that case that all parties interested in both tracts were parties to the original proceedings, and the proceedings covered damages to both tracts of land, and a part of each tract was condemned.

We have recognized the rule in this state that, where a given tract of land is owned by one...