Harmsen v. Iowa State Highway Commission

• Decision Date: 18 October 1960
• Docket Number: No. 50107,50107
• Citation: 251 Iowa 1351,105 N.W.2d 660
• Parties: John M. HARMSEN, Bernice V. Harmsen, and Anita State Bank, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
• Court: Iowa Supreme Court

Page 660

105 N.W.2d 660

251 Iowa 1351

John M. HARMSEN, Bernice V. Harmsen, and Anita State Bank, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.

No. 50107.

Supreme Court of Iowa.

Oct. 18, 1960.

Norman A. Erbe, Atty. Gen. of Iowa, and C. J. Lyman, Special Asst. Atty. Gen., John L. McKinney, Trial Counsel, Ames, and Savery & Yarham, Atlantic, for appellant.

Harold De Kay, Atlantic, for appellees.

GARRETT, Justice.

The defendant Iowa State Highway Commission condemned for highway purposes a strip of land about three hundred feet wide across the north side of the 160 acre farm of John M. and Bernice V. Harmsen, who, with Anita State Bank, mortgagee, are plaintiffs.

The proceedings took 22.93 acres of good farm and pasture land for right-of-way for Interstate Highway 80 and a proposed creek channel change. The farm is bordered on the west and south by graveled county roads but the west road has been closed where Highway 80 crosses it.

A sheriff's jury awarded plaintiffs damages of $5,661.30 and after trial a district court jury awarded them $10,400. The defendant Highway Commission has appealed.

I. Appellants contend the trial court erred in admitting, over timely objection, the opinion testimony of John M. Harmsen that the fair and reasonable market value of the materials and labor for a flood-gate was $1,000.

Before the condemnation Harmsen and the adjoining landowner to the north shared the cost of building and maintaining the 180 rods of fence between them, including the water gap at Crooked Creek. Thereafter it fell to Harmsens to maintain the entire fence. The original fence was a so-called 'hog-tight' fence such as is required by plaintiffs' livestock operations.

Approximately seventy-six acres of land north of plaintiffs' farm drained across their land. The appellant put a seventy-two inch tube across the highway to take care of that drainage, and moved the channel of Crooked Creek placing a double bridge with openings forty feet wide to take care of other drainage.

Harmsen testified without objection that this change would require him to install a flood-gate. There is no evidence that it was needed before not it is disputed that it is required now.

Before the condemnation the water-gap was taken care of by Harmsen and neighbor to the north. The flood-gate appears to be a necessary replacement for the former fence across Crooked Creek and it would be proper to show the need for it and to give the jury a word picture of the kind of gate required. It was error to permit Harmsen to give it as his opinion that the fair and reasonable market value of the labor and materials necessary to construct such flood-gate was $1,000 or any other specific amount. This gate was a hypothetical item, entirely new to this farm. No evidence was offered as to the kind of gate needed, the materials required or the manner of construction. Evidence regarding a hypothetical fence or flood-gate is not admissible. Randell v. Iowa State Highway Commission, 214 Iowa 1, 241 N.W. 685; Dean v. State, 211 Iowa 143, 233 N.W. 36; Welton v. Iowa State Highway Commission, 211 Iowa 625, 233 N.W. 876; Chicago & Northwestern Railway Co. v. Drainage Dist. No. 5, Sac County, 142 Iowa 607, 121 N.W. 193; Hanrahan v. Fox, 47 Iowa, 102; Kosters v. Sioux County, 195 Iowa 214, 191 N.W. 993.

In Trachta v. Iowa State Highway Commission, 249 Iowa 374, 86 N.W.2d 849, 852, we said: 'The real question before us in this case is the competency of testimony offered to show the estimated cost of structures deemed necessary to counteract a claimed determined to the property suffered by the condemnation or taking under eminent domain. When evidence of the cost of new structures--in one case a new corral on the south 40, and in another, new drain tile to care for an alleged increase in surface water discharged on plaintiffs' north 80--was offered, objections were made and sustained on the basis that such evidence was speculative, uncertain, and did not tend to prove the proper measure of damages. * * * By reason and by precedent we recognize the general rule that the various detriments may be shown in such matters, but estimates of costs necessary to offset the detriment for erecting new structures such as buildings, fences, walls, and drain tile, cannot be shown. This rule is discussed and the reasons for it are fully set out in Randell v. Iowa State Highway Commission, 214 Iowa 1, 10, 241 N.W. 685. There appears to be but one exception, which relates to the moving of a present structure such as a fence where exactly the same wire, posts, and braces are used, and there is no uncertainty as to its establishment and future maintenance. Randell v. Iowa State Highway Commission, supra. * * * Testimony of collateral facts in support of estimates of value in a condemnation case must be left largely to the discretion of the presiding judge. We have been consistent in holding evidence of separate values of needed improvements is not admissible as an independent item of damage. Evidence of improvement values can only be used to explain and support the estimates of value of the entire property. Hayes v. Chicago, R. I. & P. Ry. Co., 239 Iowa 149, 152, 30 N.W.2d 743, and citations; Ranck v. City of Cedar Rapids, 134 Iowa 563, 566, 111 N.W. 1027; Randell v. Iowa State Highway Commission, supra. On direct examination of value witnesses, ordinarily the market value of the land together with the improvements, taken as a whole and not separately, is to be shown, and the value of the improvements apart from the land may not be then shown. Ranck v. City of Cedar Rapids, supra; Hayes v. Chicago, R. I. & P. Ry. Co., supra, and citations. * * * but that evidence of the cost of any plan or scheme to overcome the lessened value is much too speculative and uncertain, even though accurate estimates of proposed structural costs may be available. * * * we said on page 8 of 214 Iowa, on page 689 of 241 N.W.: '* * * appellee unquestionably may show this increased burden on the farm, if it be such, in order that the jury may determine the difference in the value of the land immediately before and immediately after the condemnation. When doing that, however, appellee has no right to ask his witnesses to speculate and guess concerning the cost aforesaid, as he did in this case. * * * Clearly the district court should have refused to permit the witnesses to answer. Moreover, * * * questions of this kind, which ask the witness to enter the field of speculation and conjecture, never should be asked or answered.'' Randell v. Iowa State Highway Commission, supra states [214 Iowa 1, 241 N.W. 691]: 'Obviously, under the facts and circumstances here presented, it was error under the ruling announced in Dean v. Iowa State Highway Commission (211 Iowa 143, 233 N.W. 36), supra, and the other cases previously cited in that group. As said...