Heldenbrand v. Executive Council of Iowa, For Use and Benefit of State

• Citation: 218 N.W.2d 628
• Decision Date: 22 May 1974
• Docket Number: No. 2--56234,2--56234
• Parties: William E. HELDENBRAND and Esther Heldenbrand, Appellees, v. EXECUTIVE COUNCIL OF IOWA, Acting for the Use and Benefit of the STATE of Iowa, Appellant.
• Court: United States State Supreme Court of Iowa

Page 628

218 N.W.2d 628

William E. HELDENBRAND and Esther Heldenbrand, Appellees, v. EXECUTIVE COUNCIL OF IOWA, Acting for the Use and Benefit of the STATE of Iowa, Appellant.

No. 2--56234.

Supreme Court of Iowa.

May 22, 1974.

Rehearing Denied June 24, 1974.

Richard C. Turner, Atty. Gen., and Clifford E. Peterson and John R. Dent, Asst. Attys. Gen., for appellant.

Webster, Jordan & Oliver, Winterset, for appellees.

Heard by MOORE, C.J., and LeGRAND, REES, UHLENHOPP and McCORMICK, JJ.

REES, Justice.

This is an appeal in an eminent domain matter by the defendant Executive Council of Iowa from a jury verdict rendered in favor of plaintiffs in an appeal from a condemnation award.

Plaintiffs William E. and Esther Heldenbrand were the owners of a 160-acre farm in Madison County upon which they resided. On June 9, 1971 the defendant Executive Council of Iowa filed an application to purposes. A compensation commission was plaintiffs for public park and recreational selected by the chief judge of the Fifth condemn all of the tract belonging to the Judicial District, which commission on June 29, 1971 asessed damages to which the plaintiffs would be entitled by reason of such condemnation of their lands, in the amount of $98,000. The report of the commission was filed with the sheriff on the following day, June 30, 1971.

On July 13, 1971 defendant Executive Council filed its notice of appeal from the award of the compensation commission and thereafter the plaintiffs filed their petition in district court as is required by § 472.22, The Code, 1971. After the issues were made up, the cause came on for trial on January 3, 1973, which resulted in a jury verdict in favor of the plaintiffs in the sum of $101,240.

On the morning of the day the cause proceded to trial as assigned, the defendant filed a motion in limine. In paragraph seven of such motion, the defendant moved the court to limit 'all evidence pertaining to this eminent domain condemnation proceeding (which) shall relate to the date of the compensation commission's assessment of damages sustained by reason of the appropriation, that date being the 30th day of June, 1971; and further all evidence relating to values, transactions or improvements subsequent to this date shall not be admissible to show fair market value.'

While the appendix does not set out the ruling of the trial court on the motion in limine, the motion was overruled insofar as paragraph seven above set out is concerned, as is disclosed by the transcript certified here. It is the ruling of the trial court on paragraph seven of the motion in limine and other rulings relatable thereto in the record upon which defendant bases the central issue stated here for review.

The defendant states one issue only for review here; namely, on an appeal to the district court from a compensation commission award, should the date of valuation for the taking of property by eminent domain be determined at the time the compensation commission views the premises and files its report of damages? Several brief points are advanced and argued by the appellant peripherally to the abovestated main issue.

The plaintiffs insist error was not adequately quately preserved in the record so as to permit and allow review by this court in this appeal insofar as the date and time of assessment of damages are concerned.

I. Basically, the only question presented by this appeal is for us to determine the time as of which the property of the plaintiffs was to be valued or their damages assessed; the defendant contending the damages were to be assessed as of the date of the assessment of damages by the condemnation commission, and that such date was the time of 'taking', whereas the plaintiffs insist their damages were to be assessed and their property was properly valued as of the date of trial.

'It is the general and well-established rule that damages are to be assessed and compensation determined as of the time of the Taking. (italics ours) The difficulty ordinarily is in determining when the taking occurs. Owing to the great diversity of constitutional and statutory provisions governing condemnation proceedings in the different states, it is impossible, even if it were desirable, to lay down a universal rule on this point. In many states, for instance, compensation must be paid in advance, and where this is the rule, the taking cannot in any event be in advance of the payment of compensation. In several jurisdictions the rule is that the date of the filing of the petition in the condemnation proceedings will be taken as the time with reference to which the property will be valued, while in others the date is determined by that of the issuance of the summons, or of filing the bond, or of assessment, appraisement, or award, or of trial, or of entry, or varies in different classes of takings.'

26 Am.Jur.2d, Eminent Domain, § 152, pp. 814--815.

The above quotation from 26 Am.Jur.2d, is indicative of the complexity of the problem we are confronted with here. In 3 Nichols, on Eminent Domain, § 8.5, p. 26, we find the following:

'The value of real estate is by no means constant, and before compensation can be intelligently assessed for the taking of land by eminent domain, a point of time must be fixed as of which the property is to be valued; and it is the value at that time which the owner is entitled to receive, even if the value of the land rises or falls before the money is actually paid to him. Upon this proposition all are agreed, but there is a great diversity of opinion as to just when that point of time occurs. It was said by Chief Justice Shaw in an early Massachusetts case,

"The true rule would be, as in the case of other purchases, that the price is due and ought to be paid, at the moment the purchase is made, when credit is not specially agreed on. And if a pie-power court could be called on the instant and on the spot, the true rule of justice for the public would be, to pay the compensation with one hand, whilst they apply the axe with the other; and this rule is departed from only because some time is necessary, by the forms of law, to conduct the inquiry; and this delay must be compensated by interest. But in other respects the damages must be appraised upon the same rule as they would have been on the day of the taking.'

'The date of the taking is important also, because the only person entitled to recover damages for condemnation is the person who was the owner of the land at the time of the taking.

'(1) When compensation is assessed as of date of taking.

'In states in which the taking is effected by an administrative order, leaving the compensation to be subsequently ascertained by judicial proceedings, there is no difficulty in the application of this rule; and damages are assessed as of the date of the taking. Any changes in the condition of the property which thereafter take place, whether they result in an increase or a decrease in the value thereof, cannot affect the amount of compensation to be paid.

'When the taking is effected by the mere enactment of a statute, damages are assessed as of the date of such enactment. When the taking is complete and the right to damages accrues upon the filing of an administrative order, damages are assessed as of the date of such filing. When the body empowered to act under the right of eminent domain is not required to make a formal taking, damages are assessed as of the date of the initial physical interference with the rights for which compensation is given.

'One of the reasons assigned for the rule that damages should be assessed as of the date of the formal order of taking was that the alienation of the owner's property was 'definitive, complete and perpetual' on that day, and it would seem to follow that if any further act of the condemnor, such as the filing of a bond, or entry upon the property, is made necessary by statute to make the taking complete and irrevocable, damages should be assessed as of the date of such further act. Nevertheless, if it appears by other provisions of statute that such a result was not intended, damages should be assessed as of the date of the order of taking, notwithstanding the fact that they may not be payable until a future date.

'Either by reason of special provisions in statutes or because of varying circumstances, it has also been held that the time as of which compensation is to be determined may be

'(1) The date the appropriation was first projected;

'(2) The date the appropriation map was filed;

'(3) The date the assessors were appointed.

'(2) When compensation is assessed before the taking.

'In the states in which the taking is effected by judicial proceedings and the compensation is assessed before the taking is made, it is obviously impracticable to assess the damages as of the date of the taking, and of necessity some other rule has to be adopted. In several states it is held that the filing of the petition to condemn, being the first actual step toward devoting the property to a public use, marks a point of time that is as fair and just to both parties for fixing the value of the property as any that could be selected, and it has, consequently, been adopted as the established date as of which damages are assessed. In such jurisdictions, however, if a corporation unreasonably delays the prosecution of its petition while the land is advancing in value, the application of the rule would work great wrong and injustice to the owner, and the petitioner would be able to acquire the property at much less than its value at the date of the taking; and if the corporation insists upon the application of the established rule of damages in such a case, the court is warranted in dismissing its petition for want of prosecution. Where the statute provides for the date of valuation at the initial step in the acquisition process, such as upon the passage of a resolution authorizing the condemnation, and then permits a protracted...