Hoeft v. State

• Decision Date: 07 April 1936
• Docket Number: 43230.
• Citation: 266 N.W. 571,221 Iowa 694
• Parties: HOEFT v. STATE et al. PLUMMER et al. v. HOME OWNERS' LOAN CORPORATION.
• Court: Iowa Supreme Court

266 N.W. 571

221 Iowa 694

HOEFT v. STATE et al.

PLUMMER et al. v. HOME OWNERS' LOAN CORPORATION.

No. 43230.

Supreme Court of Iowa.

April 7, 1936

Appeal from District Court, Floyd County; M. H. Kepler, Judge.

Proceedings for condemnation of a strip of land used in the construction of a viaduct over a railroad crossing on highway No. 18 within the easterly limits of Charles City, Iowa. Hoeft, the landowner, appealed from a $1,600 award for damages allowed by the appraisement commission. On the appeal to the district court, he secured a judgment of $5,500. The State Highway Commission appeals.

Reversed.

MITCHELL, J., dissenting.

Larson & Carr, of Charles City, and C. E. Walters, of Toledo, for appellants.

W. G Henke and R. W. Zastrow, both of Charles City, for appellee.

John P Tinley and Wade Clarke, both of Des Moines, for interveners.

KINTZINGER Justice.

In June, 1934, plaintiff was the owner of two contiguous tracts of land inside of and near the easterly boundaries of Charles City, Iowa, abutting the south side of highway No. 18. The larger tract, referred to in the record as the east property, consisted of about 37 acres, and the smaller tract, referred to in the record as the west property, consisted of one acre. Each tract has a house and other improvements thereon. The larger tract was owned by the plaintiff for many years. The smaller tract was owned by him only a few years prior to the condemnation. These properties are rented to and used by different tenants for separate purposes, independent of each other, and have never been used by the same person or in connection with each other.

On June 25, 1934, condemnation proceedings were had under which a strip 850 feet long and from 17 to 27 feet wide along the north end of the entire property was condemned for use in the construction of a viaduct across the Illinois Central Railroad track, which runs north and south along the easterly side of the east property and across highway No. 18. The strip north of the west tract is about 131 feet long and 17 feet wide, and the strip north of the east tract is about 720 feet long and 27 feet wide, containing altogether about one-half acre.

The old grade of highway No. 18 in front of and on the north side of plaintiff's property was practically on a level with the natural ground. The grade of the new road for the construction of the viaduct begins to raise at about the westerly end of plaintiff's property, and from there on easterly rises to the top of the overpass, where it is 36 feet above the old grade. The gardens, houses, and other improvements on both properties are from 50 to 75 feet south of highway No. 18. The elevation of the viaduct in front of the house on the east property is 23 feet above the old grade and about level with the top of the house on that property. The only ingress or egress from plaintiff's property was highway No. 18, known as Fifth avenue, in Charles City.

The damage awarded plaintiff by the appraisement commission was $1,600. Not being satisfied with this amount, he appealed to the district court, where the case was submitted to a jury, and a verdict of $5,500 returned, and judgment thereon in favor of plaintiff was entered. The highway commission appeals.

I.

The court permitted plaintiff appellee to offer evidence of the reasonable market value of each tract separately and of both tracts together immediately before and after the condemnation.

Appellants contend that the court erred in permitting appellee to show the value of each tract separately immediately before and after the condemnation, and claim that the proper measure of damages was the difference between the value of the entire tract as a whole, immediately before and immediately after the condemnation proceedings were had. This contention is based upon the theory that the cost of separate items of injury to the property cannot be offered in evidence in determining the owner's damage, because the measure of damages is the difference between the value of the land immediately before the condemnation and immediately thereafter. It is no doubt true that it is the law that separate items of damage to the property cannot be shown to determine the owner's damage. Kosters v. Sioux County, 195 Iowa 214, 191 N.W. 993; Dean v. State of Iowa, 211 Iowa 143, 233 N.W. 36; Welton v. State Highway Commission, 211 Iowa 625, 233 N.W. 876.

In Dean v. State of Iowa, 211 Iowa 143, loc. cit. 146, 233 N.W. 36, 38, this court said: " Under the law in this state, the costs of fencing, as such, cannot be considered by the jury. * * * The jury may properly consider the fact that a fence will necessarily have to be built. * * * But, in doing that, the necessity of the fence must be considered in its tendency to minimize the value of the farm, rather than as an independent and separately itemized item of damages."

There is no attempt, however, in this case, to show the cost of separate items of damage to each property; but it is contended by appellee that it was proper to show the difference between the reasonable market value of the separate properties for the purpose of showing the damage to all of plaintiff's property, because the evidence shows without conflict that, while plaintiff's property includes two separate tracts, and notwithstanding the fact that they are adjoining and contiguous to each other, they were, in fact, acquired by appellee as two separate and independent tracts and have always been used as such.

It is also the settled rule of law in this state that, where an entire tract of land consisting of several subdivisions is used in its entirety as a farm, it is not proper, in determining the damages, to show the reasonable market value before and after condemnation of the various tracts separately. Welton v. State Highway Commission, 211 Iowa 625, 233 N.W. 876; Lough v. Minneapolis & St. L. R. R., 116 Iowa 31, 89 N.W. 77.

In Welton v. State Highway Commission, 211 Iowa 625, loc. cit. 632, 233 N.W. 876, 881, this court said: " The law of eminent domain does not contemplate that in fixing the value of a farm that plaintiff may cut to pieces his farm and a piecemeal valuation be taken as the basis of valuation of an entire tract before and after the condemnation. It is the value as a whole before and after the condemnation, and not the value in parcels. * * * Welton's farm was a single farm, and so treated by both parties . Neither party claims that the 200 acres (approximately) consisted of two farms. Plaintiff was entitled to have his farm valued as a whole and his damage assesed on that basis."

In Lough v. Minneapolis & St. L. R. R., 116 Iowa 31, 89 N.W. 77, 78, this court said: " It might be that the particular tract crossed by the railroad was of little value, and a showing of this fact would tend to distract the attention of the jury from the real question, and confuse them."

In both of the latter cases, the condemnation crossed only a portion of the farm, and the question there was whether or not the portion not crossed by the condemnation proceedings should be considered as a part of the entire farm. It was there contended by the highway commission and the railroad company that the value of each subdivision of the farm should be considered separately in arriving at the damages. The holding in those cases is based on the theory that, where the various divisions of an entire tract are used as one tract, the reasonable market value of the entire farm, before and after the condemnation, must be shown in determining the damages.

In the case at bar, however, the strip of land was taken from the north end of both properties. It is the rule of law that, although two tracts or parcels of land are contiguous to each other and owned by the same person, but used for different purposes, and not in connection with each other, they should be considered as separate tracts; and, where different tracts of land are used separately, it is proper to permit the jury to consider the reasonable market value of each tract. Ellsworth & Jones v. Ry. Co., 91 Iowa 386, 59 N.W. 78; Westbrook et al. v. Ry. Co., 115 Iowa 106, 88 N.W. 202; Paulson v. State Highway Commission, 210 Iowa 651, 231 N.W. 296; 10 R.C.L. 157.

The issue as to whether or not plaintiff's land consisted of two separate tracts was clearly raised in the pleadings. The pleadings and evidence both show that, although the properties are contiguous, they are, in fact, two separate properties, one known as the east property and one known as the west property. The evidence shows that the land described and claimed by plaintiff as the east property was owned by him for many years, and that the land described as the west property was purchased by him a few years ago. The east property comprises about 37 acres and has a separate set of buildings and improvements thereon which are rented to a separate tenant. The west property comprises about one acre of land and contains a separate set of buildings and is rented to a separate tenant. Both are used for separate and distinct purposes. The strip of land condemned by the highway commission is taken from the north end of both properties. Plaintiff alleges the existence of two properties. The Home Owners' Loan Corporation, intervener, has a mortgage upon the property described as the east property, as separate and distinct from the west property. The plaintiff and the intervener both allege the existence of two separate properties. This is denied in appellants' answer. It therefore became a question for the jury to determine whether or not there were, in fact, two separate properties included in the land in question, so that the reasonable market value of each, before and after the condemnation, could be shown to determine the damage.

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