Hagenson v. United Tel. Co. of Iowa, 55169

• Court: United States State Supreme Court of Iowa
• Writing for the Court: LeGRAND; All Justices concur except UHLENHOPP; UHLENHOPP
• Citation: 209 N.W.2d 76
• Parties: Paul E. HAGENSON, Appellee, v. UNITED TELEPHONE COMPANY OF IOWA, Appellant, George KRAMER and Wilma Kramer, Appellees, v. UNITED TELEPHONE COMPANY OF IOWA, Appellant. UNITED TELEPHONE COMPANY OF IOWA, Appellant. v. George E. KRAMER, et al., Appellees.
• Docket Number: No. 55169,55169
• Decision Date: 03 July 1973

Page 76

209 N.W.2d 76 Paul E. HAGENSON, Appellee,
v.
UNITED TELEPHONE COMPANY OF IOWA, Appellant,
George KRAMER and Wilma Kramer, Appellees,
v.
UNITED TELEPHONE COMPANY OF IOWA, Appellant.
UNITED TELEPHONE COMPANY OF IOWA, Appellant.
v.
George E. KRAMER, et al., Appellees. No. 55169. Supreme Court of Iowa. July 3, 1973.

Page 79

Korf, Diehl, Clayton & Cleverley, Newton, for appellant.

Shaff & Farwell, Clinton, for appellees Hagenson and Jones.

Holleran, Holleran & Shaw, Clinton, for appellees Kramer.

Goodenow & Wright, Maquoketa, for appellees Meyer.

Considered en banc.

LeGRAND, Justice.

This is an appeal from three judgments against United Telephone Company of Iowa (hereafter called the company) following the trial of consolidated actions growing out of the laying of a telephone cable. The actions were here in an earlier appeal involving other questions. See Hagenson v. United Telephone Co., 164 N.W.2d 853 (Iowa 1969).

For convenience we refer to the individuals who ask damages--Kramer, Jones, and Hagenson--as the landowners. They own three tracts of land which lie north of a county highway. A road (or lane) runs generally north from this county highway providing access to the property of the landowners as well as to the land of several other persons not involved in this litigation. This road has also been used by tradesmen, servicemen, visitors, and, infrequently, by hunters and fishermen. It was never dedicated or condemned as a public highway. One of the landowners has a sign on his property declaring the road to be a private way. Gates exist along its route in at least two places and are sometimes closed.

Sometime before the events in question, two residents in the area contacted the company about the possibility of obtaining telephone service, a convenience none of those in the neighborhood then enjoyed. If service was brought to only two customers, they would be compelled to pay part of the construction cost. If a larger number of subscribers was obtained, the company would bear all expense. The company's commercial manager sent its engineering department a request for engineering services in which he stated untruthfully. 'Outside Plant facilities to provide service to four new subscribers. There is a possibility of seven.' The engineering department surveyed the road and prepared a blueprint for underground cable to the property of the landowners and others.

Neither the commercial manager nor the engineering department referred the matter to the company's right-of-way officer, and the company did not obtain easements. At no time did the landowners request telephone service nor consent to the installation of cable or equipment.

From the engineering department the matter apparently went to the construction supervisor, who proceeded with the actual work. The construction supervisor did not inquire about ownership of the road. On December 7, 1967, the company laid telephone cable along the private road already referred to. While most of the installation was under the road, some was on private property outside the roadway proper. In addition to the cable, the company placed 'pedestals' (outlets) above ground at various locations. These operations left a small pile of earth along the site. This accumulated dirt was packed down by running a tractor over it twice and by leveling it with the bulldozer blade on the tractor.

The jury could have found that in the process of laying the cable, the workmen did considerable damage by knocking down trees, pulling out drain pipes which crossed

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beneath the road, injuring Kramer's septic tank tile, and rendering the road, which had been quite usable before, muddy and unusable at places and times afterward.

As already noted, the work was done without the consent of the landowners. They were not present when it was done; when they discovered it they promptly remonstrated. When the company learned what its employees had done, it immediately contacted the landowners, offering either to repair the damages itself or pay for repairs. The parties could not reach agreement.

A rush of litigation then ensued. In separate actions the three landowners claimed damages, both actual and punitive, of the company. A near-by neighbor (Meyer) who wanted phone service asked that an easement for road purposes be declared to exist over the Kramer land in his favor. The company asked a declaratory judgment fixing the rights of the parties as to the road in question. All of the actions were consolidated for trial.

The jury allowed Kramer $2,200.00 compensatory and $2,800.00 exemplary damages; Jones, $300.00 and $900.00; and Hagenson, $1,200.00 and $1,600.00. The trial court dismissed both the Meyer claim of an easement and the company's request for a declaratory judgment. The Meyer claim has been abandoned.

The company alone has appealed, assigning the following errors for reversal: (1) The trial court erred in rejecting evidence of the telephone company's offer to repair the Kramer damage; (2) the trial court erred in directing verdicts against the telephone company on its request for declaratory judgment and against Meyer on the easement claim; (3) the trial court erred in submitting the issue of exemplary damages to the jury; and (4) the trial court erred in its instructions to the jury. We discuss the assignments in this same order.

I. Kramer asked compensatory damages for cost of repairs and for loss of use until repairs could be made. Bearing on this claim, the telephone company tendered evidence of its offer to either repair the damage or to pay for repairs. The trial court sustained objections to the tendered evidence. It is claimed this was error.

The trespass was complete when the company finished the work on December 7, 1967. If it was liable, liability arose at that time, and no subsequent conduct could change that fact. However, the claim for damages for loss of use presents a special problem. That item involves continuing damage for the period needed to make repairs in the exercise of reasonable diligence. Rosenstein v. Bernhard & Turner Auto Co., 192 Iowa 405, 180 N.W. 282 (1921). The company contends its offers to repair bore on the reasonable period needed to effect repairs, and that Kramer could not stand by, reject repairs, and let additional damages run.

The company is right that Kramer could not simply let the damages run. On this issue, the company could introduce evidence bearing on the period of time reasonably needed to repair the damage. The question is whether the offers to repair or pay constituted admissible evidence on that issue.

We think the offers were not admissible evidence, for they did not show what period of time was necessary to repair the damage; hence they were irrelevant on that point. A determination as to the relevancy and materiality of evidence rests largely in the trial court's discretion. State v. Graham, 203 N.W.2d 600, 604 (Iowa 1973). There was no abuse of discretion here and consequently we find no error in the rulings complained of.

II. The trial court directed verdicts against the company on its request for a declaratory judgment and against Meyer on the claim an easement for a roadway existed.

Since Meyer did not pursue his appeal, we are only concerned with rulings of the

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trial court which affect the company. It is claimed the evidence generated a jury question, first, on whether the road was a public one and, second, on whether Meyer had an easement for road purposes across the Kramer land.

III. Regarding the first contention, the evidence shows the cable was laid entirely on private property without consent of the owners and without eminent domain authority. However, the company contends there was substantial evidence that the road was a public one and that the company therefore had a right to lay cable in it under § 488.1, The Code. We do not now decide whether § 488.1 grants such a right. (See 1970 OP. Iowa Atty.Gen. 511). Assuming it does, we find no substantial evidence this road was a public one.

The road was never condemned by governmental authority as a public road nor was it ever...