Hammer v. Ida County, 2--56438

• Decision Date: 31 July 1975
• Docket Number: No. 2--56438,2--56438
• Citation: 231 N.W.2d 896
• Parties: Edwin HAMMER and Rachel Hammer, Appellants, v. COUNTY OF IDA, and the Board of Supervisors of Ida County, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 896

231 N.W.2d 896

Edwin HAMMER and Rachel Hammer, Appellants, v. COUNTY OF IDA, and the Board of Supervisors of Ida County, Iowa, Appellees.

No. 2--56438.

Supreme Court of Iowa.

July 31, 1975.

Daniel D. Williamson, Ida Grove, and Michael McGrane, Mapleton, for appellants.

Richard F. Branco, County Atty., Ida Grove, for appellees.

Heard by MOORE, C.J., and REES, UHLENHOPP, REYNOLDSON and HARRIS, JJ.

REES, Justice.

This is an appeal in eminent domain matter by the plaintiff landowners from a decision rendered in their favor in an appeal from a condemnation award.

Plaintiffs Edwin and Rachel Hammer were the owners of a farm premises of approximately 170 acres in area in Ida County. In August 1968 defendant Ida County, by and through its Board of Supervisors, initiated proceedings to condemn 4.008 acres of plaintiffs' farm premises for the purpose of relocating a county road. A condemnation commission, appointed under the rpovisions of chapter 472, The Code, 1966, assessed the damages to which plaintiffs were entitled for the land taken in the amount of $1086.50 and an additional sum of $329.91 for damages. Plaintiffs appealed the award to the district court, which after trial to the court without a jury, rendered judgment against the defendants in the amount of $1600.00. Plaintiffs now appeal here, claiming that amount is inadequate and fails to reflect the damages they sustained by reason of the condemnation.

The strip of land condemned by defendant extended north and south along the east edge of plaintiffs' farm. An east-west road running along the northerly border of plaintiffs' property intersected with the road relocated on the condemned land at a point approximately 150 feet east of a bridge spanning Battle Creek, a stream running through plaintiffs' land roughly parallel to the new north-south road.

Following the condemnation and in conjunction with the development of the relocated north-south road, a 150-foot stretch of the east-west road lying east of the Battle Creek bridge was elevated four feet to conform to the grade of the newly reconstructed north-south road. It was the plaintiffs' contention at trial that the elevation of the east-west road altered or changed the normal drainage pattern of Battle Creek on their property by causing surface water from the north to be diverted across land lying to the west of Battle Creek. Plaintiff Edwin Hammer testified he had straightened Battle Creek and constructed dikes on the stream in 1954 in an effort to restrict flooding from the north to that part of his land lying east of Battle Creek, but that the elevation of the east-west road created a barrier to the drainage pattern he had designed and caused flooding of the land west of the stream. Witnesses for the defendants disputed this testimony of plaintiff and testified erosion marks and drainage lines on the east-west road indicated surface water had crossed the road west of Battle Creek prior to 1968.

The following drawing illustrates the foregoing discussion. The drainage patterns indicated by the arrows are based on the testimony of plaintiff Edwin Hammer.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

I. In these proceedings plaintiffs claim their land decreased in value from $600 to $550 per acre as a consequence of the condemnation. They attribute the claimed decrease in value to the increased potential for flooding of the land west of Battle Creek attributable, they claim, to the elevation of the east-west road east of the bridge spanning the creek. They assert the elevation of that road was a part of the reconstruction project contemplated for the north-south road at the time the 4.008-acre strip of land east of Battle Creek was condemned, and that trial court erred in failing to include in its condemnation award damages attributable to the new drainage pattern caused by changes on premises admittedly not condemned. Plaintiffs also contend trial court improperly considered the opinion of defendants' expert on the value of plaintiffs' property in determining just compensation for the land condemned. In their written brief and argument, and also in oral argument, counsel for defendants concede plaintiffs may be entitled in a separate action to damages for the decrease in value of their property allegedly caused by the elevation of the east-west road, but further contend those damages are not a proper subject for consideration in this action because they resulted from changes occurring on land not included in the condemnation nor connected with it in any way. Defendants find support for their position in the following conclusions of law (more accurately characterized as findings of fact) reached by the trial court:

'According to the evidence in this case, there was nothing shown that the raising of the grade of the east-west road was within the contemplation of the parties at the time of the condemnation.

'There appears to be nothing in the record that the raise in grade of the east-west road was necessary for the construction of the north-south road. If it was necessary to have a raised approach to the new road, how much of the east-west road was to be raised for such an approach? * * * If not, was the part necessary for such an approach the part that caused the change of flow of the water? The court concludes it cannot answer these questions from the evidence.

'If this case had been tried prior to the completion of the project, the plaintiffs would have been unable to show such damage.

'* * * (I)t is the conclusion of the court that it should not consider damages caused by the change in grade of the east-west road, * * *.'

II. Plaintiffs' appeal to the district court from the condemnation commission's award was tried as an ordinary proceedings. Section 472.21, The Code, 1966. Our review is accordingly on issues stated for review and not de novo. Findings of fact by the trial court are binding on us if supported by substantial evidence and in this case, where trial was to the court without a jury, have the effect of a special verdict. Rules 334, 344(f)(1), Rules of Civil Procedure. Generally, we view the evidence in its light most favorable to the judgment, whether contradicted or not; the findings of the trial court are to be broadly and liberally construed, rather than narrowly or technically, and in the case of ambiguity they will be construed to uphold rather than defeat the judgment. Frantz v. Knights of Columbus, 205 N.W.2d 705, 708 (Iowa 1973); Reichle v. Zeman, 204 N.W.2d 636, 637 (Iowa 1973); Dobson v. Jewell, 189 N.W.2d 547, 550 (Iowa 1971).

III. Section 472.14, The Code, 1966, provided in pertinent part as follows:

'The commissioners shall, at the time fixed in the aforesaid notices, view the land sought to be condemned and assess the damages which the owner will sustain By reason of the appropriation.' (italics added)

In reviewing appeals from condemnation proceedings, we have said:

'Damages are not limited to the value of the land taken, but include such damages as result proximately from the use for which it is taken, * * * (i)n a general way it may be said that all matters, either present or future, that necessarily and proximately affect the market value of the tract by the appropriation and proper use Of the condemned portion for the purpose for which it is taken, may be considered in assessing damages. * * * (I)t is proper (in condemnation proceedings) to take into consideration the effect which the proper use of the Condemned strip will have upon the residue of the tract from which it is taken * * *.' (emphasis supplied)

Kukkuk v. City of Des Moines, 193 Iowa 444, 448--449, 187 N.W. 209, 211; Kucheman et al. v. C.C. & D. Ry. Co., 46 Iowa 366; Dreher v. I.S.W.R.R. Co., 59 Iowa 599, 13 N.W. 754; Miller v. Keokuk & D.M. Ry. Co., 63 Iowa 680, 16 N.W. 567.

The damages to the real estate from which the condemned portion is taken for a public improvement when assessed, are assessed once and for all, and are conclusively presumed to include all damages, present and future, which may by sustained by the owner by reason of the proper use of the condemned portion for the purpose for which it is condemned. Wheatley v. City of Fairfield, 213 Iowa 1187, 1194, 240 N.W 628, 632. See also Lage v. Pottawattamie County, 232 Iowa 944, 5 N.W.2d 161; Wissmath Packing Co. v. Mississippi River Power Co., 179 Iowa 1309, 162 N.W. 846, L.R.A.1917F, 790; Hileman v. Chicago Great Western Ry. Co., 113 Iowa 591, 85 N.W. 800.

We elaborated somewhat on the general condemnation principles set out above in Wilkes v. Iowa State Highway Comm'n, 172 N.W.2d 790, 794 (Iowa 1969), and said, 'condemnee's recovery * * * is not restricted to the value of the land taken, but he is entitled to have assessed all damages As the taking occasioned to the land as an entirety.' (emphasis added). In the light of the foregoing we cannot subscribe to plaintiffs' contention the damages they sustained by reason of the flooding on the land west of Battle Creek proximately resulted from the use made (I.e., the relocation of the road) on land condemned east of the stream. Plaintiffs attempted to demonstrate at trial that the elevation of the east-west road north and west of the condemned land caused the flooding.

In Nichols on Eminent Domain, Vol. 4A, § 14.21(1), we find:

'Where it has been possible to separate the element of damage to a remainder area due to use of the land taken from an owner, from the damage thereto due to the use for the same project of lands taken from other owners, it is generally held that consideration of the depreciation in value of the remainder is limited to such as is caused by the use of the land taken from the owner of the remainder area.'

In City of Crookston v. Erickson, 244 Minn. 321, 69 N.W.2d 909, 913, the Minnesota Supreme Court, ruling on an appeal from a jury award of damages in proceedings to condemn land for use as a municipal sewage treatment and...