Fanning v. Mapco, Inc.

• Court: Iowa Supreme Court
• Writing for the Court: LeGRAND; BECKER; RAWLINGS
• Citation: Fanning v. Mapco, Inc., 181 N.W.2d 190 (Iowa 1970)
• Decision Date: 10 November 1970
• Docket Number: No. 54010,54010
• Parties: Ella M. Paulson FANNING, Appellee, v. MAPCO, INC., a Corporation, Appellant. Floyd E. FANNING and Phyllis Fanning, Husband and Wife, Appellees, v. MAPCO, INC., a Corporation, Appellant. William HANSEN and Alice Hansen, Appellees, v. MAPCO, INC., a Corporation, Appellant. Ward F. LEE and Dean I. Lee, Appellees, v. MAPCO, INC., a Corporation, Appellant.

Page 190

181 N.W.2d 190

Ella M. Paulson FANNING, Appellee, v. MAPCO, INC., a Corporation, Appellant.

Floyd E. FANNING and Phyllis Fanning, Husband and Wife, Appellees, v. MAPCO, INC., a Corporation, Appellant.

William HANSEN and Alice Hansen, Appellees, v. MAPCO, INC., a Corporation, Appellant. Ward F. LEE and Dean I. Lee, Appellees, v. MAPCO, INC., a Corporation, Appellant.

No. 54010.

Supreme Court of Iowa.

Nov. 10, 1970.

Vest, Mather & Graven, Sac City, for appellant.

Thomas L. McCullough, Sac City, for appellees, Floyd E. Fanning and Phyllis Fanning, Ella Paulson Fanning, and Ward F. Lee and Dean I. Lee.

Herrick, Ary & Cook, Cherokee, for appellees, Floyd E. Fanning and Phyllis Fanning.

Hamilton & Connell, Storm Lake, for appellees, William E. Hansen and Alice Hansen.

LeGRAND, Justice.

This is an appeal from judgments in five condemnation cases which were consolidated for trial. We reverse and hold defendant is entitled to a new trial for the reasons stated in Division III hereof.

Mapco, Inc., a corporation, is a pipeline company which was authorized by the Interstate Commerce Commission under the provisions of chapter 490, Code of Iowa, to acquire easements by eminent domain proceedings to install a 6-inch pipeline for the transportation of anhydrous ammonia. Defendant then proceeded under chapter 472, Code of Iowa, to obtain easements for that purpose over plaintiffs' farms in Sac County, Iowa. On appeal from the commissioners' awards, a district court jury assessed damages for plaintiffs in the following amounts:

Floyd E. Fanning and Phyllis Fanning  $18,350.00
                William Hansen and Alice Hansen
                  (two tracts)                        $ 5,400.00
                Ward F. Lee and Dean I. Lee           $15,825.00
                Ella Paulson Fanning                  $ 3,200.00
                

Judgments were entered for these amounts, and this appeal followed.

I. At the outset we dispose of one procedural matter raised by plaintiffs. It involves the scope of this appeal. Following entry of judgments, defendant filed a timely motion for new trial, which was later overruled. Defendant then filed notice of appeal from the award of damages in each case, from the final judgment entered thereon, from all adverse rulings during the trial, and from the order refusing a new trial. The appeal was taken within 30 days after the order overruling the motion for new trial but more than 30 days after the entry of the judgments. Plaintiffs assert defendant is limited to such issues as were raised in the motion for new trial. As to all other matters, plaintiffs argue, the notice of appeal was not filed within the statutory 30-day period.

Rule 335, Rules of Civil Procedure, provides an appeal shall be taken within 30 days from the entry of the order, judgment or decree 'unless a motion for new trial * * * is filed as provided in rule 247, and then within 30 days after the ruling on such motion.' Defendant complied with this rule, and plaintiffs' complaint is without merit. A similar contention was made and held groundless in Allen v. Lindeman, 259 Iowa 1384, 1399, 148 N.W.2d 610, 619.

Defendant may urge here any ground covered by the notice of appeal and is not restricted to those set out in its motion for new trial.

II. Defendant lists 27 separate assignments which raise the following issues: (1) error in permitting the jury to assess damages on the theory defendant could install multiple pipelines; (2) error in the admission of testimony concerning value and damages; (3) error in admitting newspaper articles as bearing on the market value of plaintiffs' land after the installation of the pipeline; and (4) error in exclusion of value evidence offered by defendant.

III. The issue upon which this case must turn involves the extent of the easement acquired by defendant, a matter upon which court and counsel repeatedly fell out during the course of trial and upon which no agreement was ever reached.

As a result we believe the case was submitted on an improper theory and that the jury was permitted to fix damages for burdens to which this land was not subject under the circumstances existing here.

The trouble arose over the following language in defendant's application for condemnation filed with the sheriff of Sac County:

'6A. Mapco, Inc. * * * is asking for the right, privilege and easement, at any time and from time to time, to construct, maintain, inspect, operate, protect, repair, replace, change the size of or remove a Pipeline or pipelines * * * within the confines of the right-of-way 50 feet in width * * * and definitely established by the center line of the initial pipeline constructed for the transportation of anhydrous ammonia or substances which can be transported through a pipeline. * * *.

'6B. Easement shall be for the construction of a Six-inch pipeline for the transmission of anhydrous ammonia.' (Emphasis supplied.)

Paragraph 6A refers to 'pipeline or pipelines' while Paragraph 6B requests only the right to construct a single six-inch pipeline.

The quarrel over whether this application permitted defendant to install many pipelines or only one began early in the case and set the tone of the trial throughout.

Plaintiffs argued, and the trial court held, the provisions of 6A and those of 6B were in conflict. The court ruled as a matter of law that the terms of 6A must govern and that defendant was entitled under its easement to install any number of pipelines for any purpose.

The jury was no instructed. Instruction 11 told the jury defendant had an easement 'for right of way purposes for the construction, operation and maintenance of an anhydrous ammonia pipeline, or other pipelines, over the properties of the plaintiff previously described.'

Instruction 17 advised the jury that the court had decided as a matter of law 'that the defendant is not limited to the construction of one six-inch pipeline on this right-of-way.' Both instructions were properly objected to.

Assuming, without deciding, the trial court was correct in deciding as a matter of law that the contradictory language in the two provisions of the application conferred upon defendant the right to install any number of lines within the easement area, we do not believe such ruling decides our problem. Here defendant repeatedly attempted to relinquish all right to install more than one line. Our task is to determine if defendant could limit the elements of damage by voluntarily taking less from plaintiffs than it, perhaps, had a legal right to appropriate.

Plaintiffs took the position defendant was irrevocably bound by the language of its application for condemnation and could not thereafter reduce its easement demands in any manner. Several references to the record will serve to demonstrate this.

During opening statements the question as to the extent of the easement arose and a discussion took place out of the presence of the jury in which one of plaintiffs' counsel said:

'Our position is that they are bound by their application for condemnation, and that is what * * * is before the court at this time.'

Again during the questioning of witnesses this statement was made:

'* * * They have spelled out what they are taking (in their application) and I think it is for the court once and for all to lay to rest the fact that this is actually what they are taking and not leave it up in the air.'

At another place this from plaintiffs' counsel:

'* * * My position before the court is that the condemnor * * * is bound by the terms of its application for condemnation which we all agree contains this wording.'

And once more, '(Counsel for condemnor is) trying to say he changed the application for condemnation by his answer. I don't care what he has got in his answer, that is what is in the application.'

At the time of this last statement the court said, 'This (application) is what we have to go under. * * *'

At another point the court remarked:

'The easement is 50 feet * * *. Under (6)A they can put in as many pipelines as they need for their business and any size.'

This is the way the case went to the jury despite the fact defendant tried diligently to limit its taking to one single six-inch pipeline for the transmission of anhydrous ammonia. All such attempts ingloriously failed.

In each of the five cases defendant's answer contained this paragraph:

'In mitigation and avoidance of damages claimed by plaintiff, the defendant shows that said pipeline easement is limited, as provided in defendant's application and notice of condemnation, as follows: * * * (b) The easement is for the construction of a six-inch pipeline.'

During opening statement defendant's counsel conceded its easement was limited to the installation of a single six-inch pipeline, and at another time pointed out that, if additional pipelines were to be installed, further condemnation proceedings would be necessary. Objections were made to questions to plaintiffs' witnesses based upon the installation of multiple pipelines which would establish an 'impenetrable wall of pipes' and on the assumption there was 'no limit to the number of pipes they can put in there or where they can put them.'

As already noted, objection was also made to the instructions which adopted the multiple-line theory of the case.

We hold it was reversible error to deny defendant the right to limit its easement. It is well established under our law that a condemnor may do so. The fact a condemnor originally asked for more does not preclude it from announcing it is actually taking less, and this may be done as late as the trial itself.

If doubt existed concerning the conflicting language of Sections 6A and 6B of the defendant's application for condemnation, there could be no such uncertainty about the consistent position taken by defendant throughout the trial. Defendant unequivocally renounced all right to install more than a single six-inch pipeline and in doing so brought itself within the rule of De Penning v. Iowa Power and Light...