Hawbaker v. Iowa State Highway Commission

• Decision Date: 06 February 1962
• Docket Number: No. 50521,50521
• Citation: 113 N.W.2d 296,253 Iowa 573
• Parties: Donald L. HAWBAKER and Lyle B. Helm, Plaintiffs-Appellees, v. IOWA STATE HIGHWAY COMMISSION, Defendant-Appellant, Ralph L. Jester and Ruth B. Jester, Defendants-Appellees.
• Court: Iowa Supreme Court

Page 296

113 N.W.2d 296

253 Iowa 573

Donald L. HAWBAKER and Lyle B. Helm, Plaintiffs-Appellees, v. IOWA STATE HIGHWAY COMMISSION, Defendant-Appellant, Ralph L. Jester and Ruth B. Jester, Defendants-Appellees.

No. 50521.

Supreme Court of Iowa.

Feb. 6, 1962.

Evan L. Hultman, Atty. Gen., of the State of Iowa, C. J. Lyman, Special Asst. Atty. Gen., for Iowa State Highway Commission, and Don C. Swanson, Des Moines, for defendant-appellant.

Kalman Musin, Des Moines, for plaintiffs-appellees.

Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for defendants-appellees.

THOMPSON, Justice.

The plaintiffs during the early months of 1959, and until about the middle of June of that year, occupied certain premises in the City of Des Moines under lease from the defendant Ralph L. Jester, the fee owner. This occupancy was under a written lease, originally running from February 1, 1956, to January 31, 1959. It had been renewed to expire on January 31, 1962. It was not acknowledged, but was filed for record on September 30, 1959. At some time during the month of May, 1959, or perhaps even earlier, it became known that the property was in the path of a freeway to be constructed by the Iowa State Highway Commission, and negotiations were begun with Jester looking to its purchase. An agent of the commission also called on the plaintiffs during May and made them an offer of $300.00 for their leasehold rights. This was not accepted. The offer was renewed in a letter from the commission to the plaintiffs under date of June 18, 1959, but again was not accepted. This letter contained a statement that it would be necessary to begin condemnation proceedings at an unspecified date, and the matter was being handed to the legal department for action. At this time the plaintiffs had leased another property and had either removed to it or were in the process of moving.

The last rent paid was on May 22, 1959, for the month of June; and the record shows the plaintiffs had removed at least by June 22. They returned the key to the premises to Jester on July 1; and on that date had no property remaining in the building. On August 31 next Jester wrote them at their new location, saying it had cost $48.00 to clean up the premises, and further saying: 'I think you offered to pay half the cost. * * * If you are still agreeable, you can send me a check for $24.00, and we will call things square.' Pursuant to this, plaintiffs paid Jester the requested sum of $24.00; and, presumably, things were considered 'square'.

No condemnation proceeding was ever instituted. On September 2, 1959, the commission purchased the realty from Jester by written contract. At that time the record shows no knowledge by the commission of the lease extension to January 31, 1962, and there was no tenant in occupancy and no recording to give constructive notice. The plaintiffs claim, however, that they still had rights as tenants; that they had merely bowed to necessity in leasing other premises; and they think the commission should be compelled, through a writ of mandamus, to condemn their interest and make such payment as may be found due. The commission, having as it contends bought the property from Jester with warranties against encumbrances and without notice of any existing leasehold rights, moved to bring in its grantor, the Jesters, husband and wife, so that all issues might be determined in one action. They were accordingly brought in; but at the close of the trial the court dismissed them as defendants. The court then entered its judgment ordering the writ of mandamus to issue as prayed by the plaintiffs.

I. Errors assigned by the defendant commission include the contentions that the plaintiffs have failed to show they will suffer damage if the writ does not issue, and that they had abandoned the property and surrendered their lease before it was taken. We find it necessary to discuss only these assignments.

Chapter 661 of the present code governs actions in mandamus. Section 661.9 is quoted: 'Petition. The plaintiff in such action shall state his claim, and shall also state facts sufficient to constitute a cause for such claim, and shall also set forth that the plaintiff, if a private individual, is personally interested therein, and that he sustains and may sustain damage by the nonperformance of such duty, and that performance thereof has been demanded by him, and refused or neglected, and shall pray an order of mandamus commanding the defendant to fulfill such duty.'

It will be observed that this section requires the plaintiff to plead 'that he sustains and may sustain damage by the nonperformance of such duty.' One who has the burden of pleading an issue also has the burden of proving it. In re Estate of Kneebs, 246 Iowa 1053, 1057, 70 N.W.2d 539, 542; In re Estate of Ewing, 234 Iowa 950, 955, 14 N.W.2d 633, 635. So in a mandamus action the burden is upon the plaintiff to plead and prove that he will suffer damage if the writ does not issue. In Nissen v. International Brotherhood, etc., 229 Iowa 1028, 1051, 1052, 295 N.W. 858, 871, 141 A.L.R. 598, we quoted with approval and at length from Mystic Milling Co. v. Chicago, M. & St. P. Ry. Co., C.C., 132 F. 289, 293. After stating the essentials of the action of mandamus under the Iowa code, among which is '(3) a legal right in the plaintiff to damages because of such nonperformance', the quotation from the opinion in the Mystic Milling case says: 'The right to damages, then, is essential to enable the plaintiff to maintain the action. The reason is apparent, for, if he has suffered no damage, or will not suffer any, he can have no interest (as a private individual) in the performance of the duty.' See also 55 C.J.S. Mandamus § 55, page 96; Ault v. Council of City of San Rafael, 17 Cal.2d 415, 110 P.2d 379, 380; Friedland v. Superior Court in and for Sacramento County, 67 Cal.App.2d 619, 155 P.2d 90, 94; Thomasson v. Jones, 68 Cal.App.2d 640, 157 P.2d 655, 656.

The commission contends that the plaintiffs have failed to show they will suffer any damage if the writ does not issue in the case at bar. The record is, in fact, barren of any proof of the value of the lease which they seek to require the defendant commission to condemn. It is without doubt true that a leasehold interest is such a right as that its taking by eminent domain requires compensation. It is also true, as the plaintiffs urge, that their rights could not be obliterated by an agreement between the property owner, Jester, and the commission.

But the burden was still upon them to prove, as they pleaded, that they will suffer damage if the commission is not required to condemn their alleged leasehold and compensate them for it. We are inclined to agree with the trial court in its remark at the close of the evidence, that 'while the petition in this case asks not only for an order of mandamus but for damages, there has been nothing shown here in the record to sustain any claim for damages * * *'. The defendants urge that for all the record shows the leasehold claimed by the plaintiffs may have been an onerous burden rather than a valuable asset.

II. But we think the defect in plaintiffs' case goes deeper than a mere failure to show damages, although such failure may appear. The record is that they had surrendered their lease some months before the commission purchased the property from the fee title owner, Jester. They had paid rent at most only through June; they had removed from the premises during June; they had returned the key to Jester, their lessor, on July 1. No rent was tendered and none demanded after the payment on May 22, which we assume, although the record is not entirely clear, was for the month of June. The plaintiff Hawbaker testified 'Mr. Jester has never made any attempt to hold us to our lease.' After the plaintiffs removed from the building, Jester had it cleaned, and, apparently in accordance with some previous understanding, asked the...