Hamer v. Iowa State Highway Commission, 49775

• Decision Date: 20 October 1959
• Docket Number: No. 49775,49775
• Citation: 98 N.W.2d 746,250 Iowa 1228
• Parties: Orville L. HAMER and Hazel L. Hamer, his wife, Appellants, v. IOWA STATE HIGHWAY COMMISSION and the State of Iowa, Appellees.
• Court: Iowa Supreme Court

Page 746

98 N.W.2d 746

250 Iowa 1228

Orville L. HAMER and Hazel L. Hamer, his wife, Appellants, v. IOWA STATE HIGHWAY COMMISSION and the State of Iowa, Appellees.

No. 49775.

Supreme Court of Iowa.

Oct. 20, 1959.

Zimmerman & Zimmerman, Waterloo, D. C. Nolan, Iowa City, Zastrow, Noah & Smith, Charles City, for appellants

Daniel T. Flores, Ames, Robert Buckmaster, Waterloo, for appellees.

GARRETT, Justice.

This is a condemnation action wherein the State Highway Commission condemned 9.12 acres of land in a strip one hundred fifty feet wide and one hundred sixty rods long, along the extreme easterly portion of appellants' 280 acre dairy farm. Trial in the district court resulted in a verdict for plaintiffs, Orville L. Hamer and Hazel L. Hamer for $6,350. From judgment thereon plaintiffs have appealed.

Two errors relating to instructions to the jury are assigned as follows: 'The Court erred in instructing the jury in Instruction No. 7 as follows: 'The test is not what the land is worth to plaintiffs, but what it is fairly worth on the market, as in these instructions defined.' * * * and not giving the following instruction requested by the Appellants: 'You have been instructed that the method of arriving at the amount of damages to be awarded to the plaintiffs in this case is the difference between the fair market value of plaintiffs' property, as a whole, immediately before the taking of any portion thereof by the State of Iowa for highway purposes, and the fair market value thereof immediately after such taking, yet the purpose of your verdict will be to award to the plaintiffs such sum of money, as you find under the evidence and these instructions, as will equal the true cash equivalent of the value of plaintiffs' property so taken for the highest and most valuable use to which such property could be reasonably used as shown by the evidence in this case.''

Appellants cite the Fifth Amendment to the constitution of the United States and Article 1, Section 18 of the Iowa Constitution, I.C.A., which provide that private property shall not be taken for public use without just compensation. It would clearly be our duty to intervene if we were convinced either constitution were being violated. It is our opinion there is no such violation in this case.

Appellants object to that part of Instruction No. 7 which says: 'The test is not what the land is worth to plaintiff but what it is fairly worth on the market,' and say the real measure of damages is or should be a sum of money which equals the true cash equivalent of the value of plaintiffs' property so taken for 'the highest and most valuable use to which such property could be reasonably used.' In this connection it might be said that speculation and conjecture would be involved to a great extent if the jury were to try to determine 'the most valuable use to which such property could be reasonably' put. In most instances it is doubtful if the condemnee would contemplate changing from his present use of the premises to the most valuable use which could reasonably be found.

If the owner of farm land contemplated converting it into city lots and it was suitable for that purpose a jury would, no doubt, and should take that fact into consideration in determining the fair market value, but a jury should not be required to explore all of the possibilities to determine the highest and most valuable use to which the property might be put.

Appellants say the real measure of the damages to which they are entitled is what the land taken is worth to them and that it was error for the court to instruct that 'The test is not what the land is worth to plaintiffs but what it is fairly worth on the market, as in these instructions defined.' The Iowa rule of long standing is that the measure of damages in condemnation cases is the difference between the fair and reasonable market value of the land as a whole immediately before the taking and immediately after the taking, without considering the benefits, if any. Stortenbecker v. Iowa Power and Light Co., Iowa 96 N.W.2d 468; Hall v. City of West Des Moines, 245 Iowa 458, 62 N.W.2d 734; Nedrow v. Michigan-Wisconsin Pipe Line Co., 245 Iowa 763, 61 N.W.2d 687; Maxwell v. Iowa State Highway Commission, 223 Iowa 159, 271 N.W. 883; Hubbell v. City of Des Moines, 166 Iowa 581, 147 N.W. 908; Watkins v. Wabash Railroad Co., 137 Iowa 441, 113 N.W. 924; Lough & Mitchell v. Minneapolis & St. L. Railroad Co., 116 Iowa 31, 89 N.W. 77.

In Stortenbecker v. Iowa Power and Light Co.,...