Harvey v. Iowa State Highway Commission, 51445

• Citation: 256 Iowa 1229,130 N.W.2d 725
• Decision Date: 20 October 1964
• Docket Number: No. 51445,51445
• Parties: Loren HARVEY et al., Appellant, v. IOWA STATE HIGHWAY COMMISSION et al., Appellee.
• Court: Iowa Supreme Court

Page 725

130 N.W.2d 725

256 Iowa 1229

Loren HARVEY et al., Appellant, v. IOWA STATE HIGHWAY COMMISSION et al., Appellee.

No. 51445.

Supreme Court of Iowa.

Oct. 20, 1964.

H. S. Life, Oskaloosa, for appellant.

Evan Hultman, Atty. Gen., C. J. Lyman, Asst. Atty. Gen., and A. Jackson Allen, State Counsel, Ames, for appellee.

STUART, Justice.

Plaintiffs' petition seeking to enjoin the State Highway Commission from taking portions of their farms in relocating State Highway 92 through Marion and Mahaska Counties was dismissed on defendants' motion. They elected to stand upon the pleadings and appealed.

Doubtful pleadings attacked by a motion to dismiss are resolved against the pleader. Well pleaded, relevant and issuable facts are deemed true, but conclusions, not supported by pleaded ultimate facts, are not admitted. Hahn v. Ford Motor Co., Iowa, 126 N.W.2d 350 and cases cited therein.

We treat the following facts alleged in the petition as true. Plaintiffs are residents of and landowners in Marion and Mahaska Counties. The highway commission proposes to take portions of plaintiffs' land to relocate State Highway 92, including a new bridge across the Des Moines river, at a total cost between 5 and 6.5 million dollars. The present highway is 18 feet wide and in food repair, with certain exceptions, and can be repaired, widened to 24 feet and resurfaced adequately for all anticipated future needs for not to exceed 1.5 million dollars. Highway 92 is not a trunk highway and runs parallel to U. S. Highway 34 located 20 to 25 miles to the south which is being rebuilt across the state, and Interstate 80, a four lane divided highway on the north. The traffic on Highway 92 is decreasing and will decrease further when these two highways are completed.

The petition also includes Par. 20 which states: 'That no public need or convenience for the building of a new segment of Highway 92 in Marion and Mahaska County as proposed exists legally justifying the same and the expense thereof will constitute and arbitrary and unnecessary spending of public money and an arbitrary unnecessary taking by the defendants of the real estate property of these plaintiffs and without justification or the existence of legal necessity and convenience therefor on the part of the state permitting or justifying under and by the law of eminent domain of the State of Iowa.'

This paragraph is a pleading of conclusions which are not admitted in the motion unless supported by the ultimate facts just set out. Plaintiffs' quarrel is with the decision of the commission to relocate portions of Highway 92 rather than repair and widen it in its present location. No other ultimate facts are pleaded. No bad faith, fraud or illegality is alleged. Accepting, for the purposes of the motion, plaintiffs' figures on the comparative costs of repairing and resurfacing the highway in its present location and the cost of relocating the road, and assuming that the repaired road would be adequate for all anticipated future needs, do these facts constitute such illegal and arbitrary action on the part of the commission that we may interfere? We conclude, as did the trial court, that they do not.

When the highway commission acts within the powers conferred upon it by statute, its discretion is broad and plenary. In the absence of fraud, bad faith, or arbitrary abuse of that discretion, the courts have no power to control the manner in which it shall exercise the authority with which it has been invested. Barrett v. Kemp, 91 Iowa 296, 299, 59 N.W. 76; Bennett v. City of Marion, 106 Iowa 628, 630, 76 N.W. 844; Brush v. Incorporated Town of Liscomb, 202 Iowa 1155, 1156, 211 N.W. 856; Minear v. Plowman, 197 Iowa 1188, 1191, 197 N.W. 67; Long v. State Highway Commission, 204 Iowa 376, 378, 213 N.W. 532; Hoover v. Iowa State Highway Commission, 207 Iowa 56, 58, 222 N.W. 438; Porter v. Highway Commission, 241 Iowa 1208, 1217, 44 N.W.2d 682; Rhodes v. Iowa State Highway Commission, 250 Iowa 416, 419, 94 N.W.2d 97; Warren v. Iowa State Highway Commission, 250 Iowa 473, 486, 93 N.W.2d 60; Batcheller v. Iowa State Highway Commission, 251 Iowa 364, 368, 101 N.W.2d 30; A. & S. Inc. v. Iowa State...