Heins v. Iowa State Highway Commission

• Decision Date: 09 April 1971
• Docket Number: No. 54022,54022
• Parties: John C. HEINS, also known as John C. Heins, Jr., and Martha R. Heins, Appellants, v. IOWA STATE HIGHWAYS COMMISSION, Appellee.
• Court: Iowa Supreme Court

Page 804

185 N.W.2d 804

John C. HEINS, also known as John C. Heins, Jr., and Martha R. Heins, Appellants, v. IOWA STATE HIGHWAYS COMMISSION, Appellee.

No. 54022.

Supreme Court of Iowa.

April 9, 1971.

Rehearing Denied June 14, 1971.

W. Howard Smith, O. J. Elsenbast, and John D. Randall, Cedar Rapids, for appellants.

Forrest W. Rosser, Cedar Rapids, for appellee.

UHLENHOPP, Justice.

This appeal involves several legal questions which arose in the trial of a condemnation case.

John C. Heins, whom we will call plaintiff, owns a 72.59-acre tract of land in Cedar Rapids, Iowa. Blair's Ferry Road adjoins plaintiff's tract on the north. Railroad rights-of-way adjoin it on the east and south. A city sewer runs through the next parcel of land east of those railroad rights-of-way.

Defendant Iowa State Highway Commission condemned 23.26 acres in the southeast part of plaintiff's tract. The remaining northwest part of his tract, consisting of 49.33 acres, is thus separated from the railroads and is separated farther than it was from the sewer. Defendant will use the condemned land for borrow to improve Center Point Road and for right-of-way for the Cedar Valley Expressway.

The parties could not agree on the damage from the condemnation. The sheriff summoned a jury, which viewed the premises and found the amount of damage. Both parties appealed to district court, defendant on December 6, 1966, and plaintiff on December 7, 1966. The case was tried to a jury there, with plaintiff opening and closing the evidence and arguments. Plaintiff asked $214,510. The jury found the amount of the damage to be $36,935. Plaintiff appeals to this court.

Plaintiff's claims on this appeal are four: the trial court should have (1) expressly submitted the matter of separation of plaintiff's remaining land from the railroads and sewer as bearing on the before and after values of his property, (2) placed the burden of proof on defendant, (3) ruled differently on certain evidentiary matters, and (4) instructed the jury in a new way on plaintiff's being made whole by the award.

I. Railroads and Sewer. Plaintiff presented three value witnesses including himself. He himself testified the previous tract of 72.59 acres was worth $6,000 per acre, whereas the remaining tract of 49.33 acres is worth $4,500 per acre; his witness Dytrt testified the whole tract was worth $4,250 per acre, while the remaining tract is worth $3,000 per acre; and his witness Pickard testified the whole tract was worth $4,000 per acre and the remaining tract is worth $2,500 per acre. Plaintiff demonstrated by these witnesses, and the jury could reasonably find, that his damage was not simply the loss of the 23.26 acres condemned but also the reduction in value of the remaining 49.33 acres, and that such reduction was caused in substantial part by being cut off from the railroads and by being separated farther from the sewer. The witnesses thought the highest and best use of the land was for industry. They testified about the value added to the whole tract by the presence of the adjacent railroads and the sewer and told about the route that spur tracks could be run. As to the advantage of the adjacent railroads, a witness testified that 'the location of the railroad tracks as applied to the 23.26 acres would make it suitable for the use of railroad trackage, and with the Milwaukee being higher than the Illinois Central, the ground rises naturally there, they could run a spur track on the west edge of the property from the Milwaukee and on the east edge from either the Illinois Central or the Waterloo Cedar Falls & Northern.' Another witness said that 'after the taking of the 23.26 acres of the area which is surrounded on two sides by the railroad, such would affect the remaining property after the taking and that the 49.33 acres would decline in value'. Still another witness testified flatly, 'After the taking of the 23 acre tract, the remaining 49 acre tract has lost its industrial use'.

As to the sewer in the property on the other side of the railroads, a witness testified, 'As long as sewer and water is accessible, that is the only thing that is important as to industrial property. It does not have to be on the property because generally speaking industrial people don't care if they have to go a little ways to get it.'

One of the witnesses used the term 'accessible' in reference to the railroads and the sewer, and also used the term 'access.' Another witness used the term 'adjacent.' Plats were introduced portraying the location of these facilities to show the effect on the remaining 49.33 acres of being cut off. Thus the precondemnation direct access to the railroads and near access to the sewer loomed large in the trial in connection with plaintiff's damage claim.

A party is required to plead his items of damage, by virtue of § 472.22, Code, 1971: 'A written petition shall be filed by the plaintiff within twenty days after perfection of the appeal, stating specifically the items of damage and the amount thereof.' Pursuant to the statute, plaintiff alleged the amount of his damage to be $214,510 and his items of damage to be:

a. The appropriation of 23.11 acres of Plaintiff's premises.

b. Loss of access to railroad and sewer previously had.

c. Making the tract unusable for industrial development.

d. Decreasing the value of the remaining real estate. (Italics added.)

He also alleged 'that after the taking of the real estate above described, there remains no access to any railroad or sewer'. (Italics added.)

Defendant moved to strike the allegations we have italicized. The trial court viewed the italicized portions as allegations of special damages, as distinguished from factors involved in plaintiff's general damage claim of $214,510 for the difference in the before and after values of his property. The trial court therefore sustained the motion to strike, saying with reference to the railroads, 'I don't believe that the Court could submit it to a jury by a statement in the issues as an item of special damages.' With reference to the sewer, the trial court said that 'it will not be submitted to the jury in the statement of the issues as an item of special damage.'

Accordingly, in subsequently instructing the jury on the issues, the trial court did not include plaintiff's stricken allegations regarding the railroads and sewer but submitted the damages thus:

That the items of damage to the property of the plaintiffs by reason of condemnation as claimed by plaintiffs, are as follows:

(a) The appropriation of 23.26 acres of the plaintiffs' premises;

(b) Rendering the remaining tract unusable for industrial development;

(c) Decreasing the value of the tract remaining after the taking of the last above described tract by condemnation.

Likewise, in enumerating the factors to be considered in finding the before and after values, the trial court named location, topography, size, shape, time acquired, improvements, extent taken, character of neighborhood, use, capabilities, potential uses, and all other surrounding circumstances--but did not mention the matters of the railroads and sewer which plaintiff had pleaded. Plaintiff excepted to the trial court's failure to include those matters in the statement of the issues, and repeated the exceptions in the motion for new trial. The exceptions were overruled.

We think the trial court misapprehended plaintiff's pleading and proof with reference to the railroads and the sewer. Those matters were not pleaded as special items of damage. Plaintiff assigned no amount of damage to his allegation (b) of 'Loss of access to railroad and sewer previously had,' any more than he assigned separate amounts of damage to his allegations (a), (c), and (d). All four of those matters were factors making up his General damage claim of $214,510.

A jury may, of course, consider future uses to which land may reasonably be put, as well as the advantages the land possesses which a seller would press to the attention of a buyer. In re Condemnation of Certain Land, 255 Iowa 711, 124 N.W.2d 141; Linge v. Iowa State Highway Comm., 260 Iowa 1226, 150 N.W.2d 642. Plaintiff's evidence showed potential use for industrial purposes and also the advantage to an industrial user of adjacent railroads and nearby sewer. We think that since plaintiff expressly pleaded these matters and supported his allegations by evidence, the allegations should not have been stricken from the petition. Too, since plaintiff expressly excepted to the failure to instruct on these matters, the matters should have been included in the instructions--not as separate items of damage but for the bearing the jury might deem them to have on the values of the whole tract and of the tract remaining, just as the other three pleaded items were included in the instructions. Interstate Finance Corp. v. Iowa City, 260 Iowa 270, 149 N.W.2d 308 (particular elements only considered for bearing on damage as a whole); Iowa Development Co. v. Iowa State Highway Comm., 252 Iowa 978, 108 N.W.2d 487; Jones v. Iowa State Highway Comm., 259 Iowa 616, 144 N.W.2d 277 (re-zoning for different use).

Defendant contends, however, that plaintiff pleaded loss of 'access' to the railroads and sewer but never had access to them. Cases are cited using 'access' in the sense of the present right to use, such as Jones v. Iowa State Highway Comm., 259 Iowa 616, 144 N.W.2d 277. Plaintiff could hardly have been using the term...