Hutchinson v. Maiwurm

• Decision Date: 12 November 1968
• Docket Number: No. 52986,52986
• Citation: 162 N.W.2d 408
• Parties: Roy M. HUTCHINSON and Barbara M. Hutchinson, Appellees, v. Donald J. MAIWURM and Barbara J. Maiwurm, Appellees, and City of Fort Dodge, Iowa, and Fort Dodge Airport Commission, Appellants.
• Court: Iowa Supreme Court

Page 408

162 N.W.2d 408

Roy M. HUTCHINSON and Barbara M. Hutchinson, Appellees, v. Donald J. MAIWURM and Barbara J. Maiwurm, Appellees and City of Fort Dodge, Iowa, and Fort Dodge Airport Commission, Appellants.

No. 52986.

Supreme Court of Iowa.

Nov. 12, 1968.

Donald J. Mitchell, City Atty., and Alan Loth, Fort Dodge, for appellants.

Johnson, Burnquist & McCormick, Fort Dodge, for appellees Hutchinson.

Kirchner & Kirchner and William L. Peters, Fort Dodge, for appellees Maiwurm.

STUART, Justice.

Condemnor has appealed from a judgment on a jury verdict in favor of condemnee. Thirty-one assigned errors are argued in seven divisions. For convenience we will refer to the parties in the singular. The following sketch shows the relative positions of the land here involved.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1960 plaintiff and another person purchased tract 1 containing a little more than two acres of land west of the Fort Dodge airport and separated therefrom by a road and other property. On tract 1 is a dog kennel, a garage, a house and fences. A dog boarding, training and supply business with resident manager is operating thereon. In November 1964 plaintiff bought his partner's interest. At that time the tract was mortgaged for $16,500. He paid $3000 for the partner's equity in the real estate. Therefore, the value placed on tract 1 at that time was $22,500.

Plaintiff tried to purchase tract 2 consisting of about 2 1/4 acres when he acquired tract 1. The owner would not sell until December 1964. In January 1965, plaintiff contracted to buy tract 2 for $6000. It was unimproved and was purchased for use in connection with the kennel business on tract 1.

On March 30, 1965 defendant filed an application for condemnation to acquire the fee title to tract 2. Tract 1 was not condemned. The appraisal commissioners awarded plaintiff $6497. Plaintiff brought an action in three counts. Count I was in mandamus to require defendant to condemn tract 1 as well as tract 2. Count II sought to enjoin defendant from condemning tract 2 on the ground that it was not being taken for the public use. Count III was an appeal from the condemnation award seeking damages of $60,000 for a partial taking of a single unit composed of tract 1 and tract 2.

Counts I and II were submitted separately to Judge Harris who dismissed both counts. Count III was tried to a jury. Witnesses for plaintiff, basing their evidence on a partial taking and the difference in before and after values, placed the damages within a range of $31,500 to $60,000. Witnesses for defendant, basing their evidence on the value of tract 2 as a separate unit placed the damages within a range of $5850--$6000. The jury returned a verdict for $31,500.

I. Defendant contends Judge Harris' ruling on count I is res judicata on the question of the unity of tracts 1 and 2 and the trial court erred in permitting evidence on that point, in instructing on damages from a partial taking, and in refusing to grant a new trial on these same grounds.

The evidence offered in the jury trial on the unity of these two tracts was basically the same as that presented in the mandamus action. In the mandamus action, the trial court said: '(T)he court is asked to issue a writ of mandamus compelling the defendants to include Tract 1 in the proceedings. Plaintiffs urge that, because all the property was acquired for the same purpose by them, it is one tract and must be considered and condemned together. Particular note is made of the fact that both plaintiffs and defendants have submitted this issue to the Court for determination. It seems to be the rule, at least in the reverse situations, that this question is normally to be determined by the jury in connection with the award. See Hoeft v. Iowa, 221 Iowa 694, 266 N.W. 571 (104 A.L.R. 1008), and especially the cases there cited. The Supreme Court points out the criteria for the determination, at least in the reverse situation, and is swayed by the fact that the properties had been purchased at different times and had not been actually used together in a single operation. Attention is invited to 29A C.J.S. (Eminent Domain § 140) 591 as follows: 'There is no single rule or principle * * * for determining the unity of lands for (this) purpose. * * * While generally there must be unity of title, contiguity of use and unity of use, under certain circumstances the presence of all these unities is not essential. Usually unity of use is given the greatest emphasis, and has been called the controlling factor.'

'The facts in the instant case do not square with any of the three, unity of title, contiguity of use or even unity of use.'

Res judicata may be either direct or collateral. If the second suit is between the same parties and involved the same cause of action a judgment on the merits in the earlier case constitutes a complete bar to all matters which might have been litigated as well as the matters litigated. Jordan v. Stuart Creamery, Inc., 258 Iowa 1, 5, 137 N.W.2d 259, 261, and citations.

Count I was an action in mandamus to compel the condemnor to take all plaintiff's property consisting of tracts 1 and 2. Count III was an action to recover damages to all plaintiff's property because of the taking of tract 2. It clearly appears that we are not concerned in these two counts with the same cause of action and we are dealing with collateral estoppel.

If the second suit between the same parties involves a different cause of action, any determination of law or fact necessary or essential to the judgment in the first suit is conclusive of that issue in the second suit. Jordan v. Stuart Creamery, Inc., 258 Iowa 1, 6, 137 N.W.2d 259, 262; In re Estate of Ramsay, 240 Iowa 50, 60, 35 N.W.2d 651, 656; King City, Mo., etc. v. Southern Surety Co., 212 Iowa 1230, 1238--1239, 238 N.W. 93, 97; Yates v. United States, 354 U.S. 298, 336, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Hurley v. Beech Aircraft Corp., 355 F.2d 517, 522; Nelson v. Swing-A-Way Manufacturing Co., 8 Cir., 266 F.2d 184, 186--187; Louisiana-Mississippi P. Const. Corp. v. Thornton, 5 Cir., 213 F.2d 388, 390--391; Berry v. City of Santa Barbara, 248 Cal.App.2d 438, 56 Cal.Rptr. 553, 558; Leitch v. Hine 393 Ill. 211, 220, 66 N.E.2d 90, 95; Abeles v. Wurdack (Mo.), 285 S.W.2d 544, 547; State v. Nance, 77 N.M. 39, 43, 419 P.2d 242, 245; Willis v. Willis, 48 Wyo. 403, 419, 49 P.2d 670, 674.

As pointed out above, the trial court in ruling on the mandamus action found there was not sufficient unity of title, unity of use or contiguity of use to consider tracts 1 and 2 as a unit. The tests used by the trial court are the tests used in determining unity for the purpose of valuing the tracts as a whole in attempting to arrive at the before and after values in a condemnation matter. 29A C.J.S. Eminent Domain § 140, p. 591.

It therefore appears that the specific issue in the second suit was adjudicated in the first. However, such findings or conclusions in count I are not conclusive as to the same issues in count III unless they were essential to the judgment entered in count I.

'It is frequently laid down as a general rule that a judgment is not binding or conclusive as to facts or questions of law, although put in issue and actually tried and expressly determined by the court in the former action, where such matters were immaterial or unessential to the determination of the real and decisive issue.' Anno: 133 A.L.R. 840. Jordan v. Stuart Creamery, Inc., 258 Iowa 1, 6, 137 N.W.2d 259, 261--262; E. I. du Pont de Nemours and Co. v. Union Carbide Corp., 7 Cir., 369 F.2d 242, 245; Cambria v. Jeffery, 307 Mass. 49, 50, 29 N.E.2d 555; Abeles v. Wurdack, (Mo.) 285 S.W.2d 544, 547; State v. Nance, 77 N.M. 39, 43, 419 P.2d 242, 245; Willis v. Willis, 48 Wyo. 403, 424, 49 P.2d 670, 676.

It is the application of these well established principles to the facts in the particular case which poses the difficulty.

Count I was primarily based on the allegation that the taking of tract 2 completely destroyed the usefulness of tract 1 and sought to compel its condemnation. 'Unless the injury to the remaining land is so severe as to render it useless for any purpose, the condemnor taking part of the lands is not bound to pay the full value of the entire tract, even if, by reason of injury to such land, the owner has abandoned all use of the property.' 27 Am.Jur.2d 128, Eminent Domain, § 311. Thus, the unity required to compel the condemnor to take both properties is quite different and much more difficult to establish than unity which would permit evaluation of the whole for the purpose of establishing severance damages.

It was not necessary for the trial court to determine the unity of these two tracts according to the requirements for unity for evaluation purposes. He could very well have concluded there was not sufficient unity for the mandamus action without using the tests he did use. The conclusions of law which were essential to the determination of the mandamus action were: 'The court cannot say that the defendants exceeded their statutory jurisdcition in condemning the property or in limiting it to tract 2' and 'defendants are clearly acting within the scope of their authority and can neither be restrained from acting nor compelled to expand upon their action as the plaintiffs request'.

Does the fact that the test used in reaching these conclusions applied to count III rather than count I, make his findings in count I binding on the court and jury in count III?

We have not been cited any cases factually similar and have found none in our own research on this question. A. W. Scott in an article entitled Collateral Estoppel by Judgment in 56 Harv.L.Rev. 1, 29, cautions us that 'The doctrine of collateral estoppel, which applies where the cause of action is different, has a much more limited application. In its limited application it is based upon a sound public policy. Care...