Iowa Development Co. v. Iowa State Highway Commission

Decision Date04 April 1961
Docket NumberNo. 50195,50195
Citation108 N.W.2d 487,252 Iowa 978
PartiesIOWA DEVELOPMENT COMPANY, Appellee, v. IOWA STATE HIGHWAY COMMISSION, Appellant. Emma C. MURPHY, Appellee, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
CourtIowa Supreme Court

Evan L. Hultman, Atty. Gen., C. J. Lyman, Special Asst. Atty. Gen., Donald L. Beving and Keith E. McWilliams, Des Moines, for appellant.

Duncan, Jones, Hughes, Riley & Davis, Des Moines, for appellee Iowa Development Co.

Steward, Crouch & Kelly, Des Moines, for appellee Emma C. Murphy.

GARFIELD, Chief Justice.

Two adjoining landowners, Iowa Development Co. and Emma C. Murphy, as plaintiffs, appealed to the district court from the assessment of damages by commissioners for the taking by eminent domain of part of their lands for interstate highways. Upon plaintiffs' motion the two cases were consolidated for trial. From the court's ascertainment of the amount of damages, following trial without a jury, defendant state highway commission (herein called 'the commission') has appealed to us.

Iowa Development Co., a wholly owned subsidiary of the Chicago Great Western Railroad Co., owned a tract of 342.1 acres, about three-fourths of a mile north-northeast of the Des Moines city limits. It is bounded on the east by East 29th Street, on the north by Berwick Road, on the west partly by Delaware Avenue, and on the south by the Great Western right of way. A parcel of about 30 acres of the tract owned by this plaintiff lies just west of Delaware Avenue which separates the northeast corner of the parcel from the southwest corner of plaintiff Emma C. Murphy's tract of 34 acres. The Murphy land is joined on the north, east and south by the development company's land. The railroad right of way curves somewhat to the north as it goes east along the south line of the 342 acres.

On August 27, 1958, the commission condemned 175.4 acres owned by the development company and 25.5 acres of the Murphy tract for construction of Interstate Highways 35 and 80 and the interchanges between the two. Route 35 is to cross the state from south to north and 80 from west to east. For several miles just west of the east line of the Murphy land the two routes are combined. At this point, however, No. 35 turns north toward Ames and 80 continues on east toward Newton. It was apparently thought the large amount of land taken was necessary for the complicated interchanges, forming Ys and figure 8s, at this point.

The taking leaves the development company 166.7 acres in four separate parts. Northeast of the interchanges is a tract of 61.6 acres, to the northwest are 47 acres, southwest 33.4 acres, and southeast 24.7 acres. 8.5 acres of the Murphy tract remain, in the form of a triangle. Its west line is virtually the entire frontage of the tract on Delaware Avenue. Its north line is about the west two-thirds of the north line of the original tract. The hypotenuse of the triangle, along the southeast side, is also the northwest line of the land taken.

The trial court ascertained the amount of damages due the development company is $380,285.50, and the amount due Mrs. Murphy is $38,800, with interest from date of the taking.

I. The commission first assigns error in the consolidation for trial of the two cases.

Rule 185, Rules of Civil Procedure, 58 I.C.A., provides: 'Unless some party shows he will be prejudiced thereby the court may consolidate separate actions which involve common questions of law or fact or order a single trial of any or all issues therein. * * *.' In 1955 the then rule 185 was changed by substituting 'shows,' fourth word above, for 'objects, stating that.' Thus the present rule requires a showing, rather than a mere statement, of prejudice. Under the former rule a party could prevent a consolidation by claiming prejudice. Now it is for the court to determine whether such a claim is well founded. See pocket part, volume 2, Cook's Iowa Rules Civil Procedure, Revised Edition.

As the commission concedes, the question whether these actions should be consolidated for trial was largely within the trial court's discretion. See Keller v. Harrison, 139 Iowa 383, 386, 116 N.W. 327; Sykes v. Waring, 228 Iowa 1047, 1055, 293 N.W. 14; United States v. Knaure, 7 Cir., 149 F.2d 519; 88 C.J.S. Trial § 6, page 27; 53 Am.Jur., Trial, section 66. We find no abuse of discretion here.

It is clear the two cases involve common questions of law and fact. As stated, the Murphy tract is bounded by the development company's land on three sides. On the fourth side Delaware Avenue is the west boundary of the Murphy tract and much of the development company's land. The same commissioners assessed the damages to both tracts on the same day. Much testimony in the district court relates to both cases. Most of the witnesses on valuations expressed their opinions as to both tracts. Separate trials would have resulted in a good deal of repetition of testimony.

Defendant's resistance to plaintiffs' motion to consolidate alleges a consolidation would be prejudicial to defendant and that different factors affect the value of the two tracts. The motion was evidently submitted on the pleadings without any showing of prejudice except such as might be apparent therefrom. We are not prepared to hold this was a showing of prejudice which warrants a reversal.

II. Defendant asserts it was error to permit each plaintiff to adopt the evidence of the other upon the trial.

In about ten instances counsel for one plaintiff stated he adopted the testimony of a witness just examined or cross-examined by the other plaintiff. Only once did defendant object to such a statement. Defendant's valuation witness Rouze testified on direct examination only as to the Murphy land. At the end of a long cross-examination by Mrs. Murphy's attorney, counsel for the development company asked that the record show his client joined in the evidence thus adduced. Defendant's attorney then asked that the record show he objected to this for the reason the testimony pertained only to the Murphy property. No ruling was made or demanded as to either request. At the end of all testimony counsel for each plaintiff stated he adopted all testimony offered by the other. Defendant made no objection.

At the beginning of the trial defendant's counsel stated, 'It is our thought the general evidence as to the vicinity and neighborhood can * * * apply to both properties but the value should be developed separately so there is no question but (sic) that the witnesses are valuing the whole thing as one tract as though it were in a single ownership.'

We think this assignment of error presents nothing for review upon this record. The effect of the agreement just quoted seems to be that evidence applicable to both properties be so considered but evidence as to values be considered as to each tract separately, not as to both jointly. So far as shown this was done. The one objection to any attempt by either plaintiff to adopt testimony adduced by the other did not clearly raise the question now raised by this assignment of error. As stated, there was no ruling upon this objection. It was defendant's duty to request or demand a ruling if desired. Since no such request or demand was made the objection might be deemed waived. Shover v. Iowa Lutheran Hospital, 252 Iowa ---- 107 N.W.2d 85, 93-94, and citations.

III. Error is assigned in admitting evidence of the sale price of other lands not shown to be similar to the land in question.

Plaintiffs' most important witness was Mr. Neal, a Des Moines real estate broker. The development company acquired its 342 acres through options Neal obtained for it in his own name. He also acted as agent for this plaintiff in managing farming operations on the land. After expressing his opinion of the value of the development company's land just before and after the taking, Mr. Neal testified on direct examination over defendant's objection, to the price paid for many other tracts in and near Des Moines. The sales so testified to include:

From Goode to Iowa Power & Light Co., one arce @ $2,500,

From Des Moines & C. I. Ry. Co. to Levine, 4 or 5 acres @ $2,000 or $2,500, per acre,

From Kisky to Consumers Co-op, 5 acres @ $2,000 per acre,

From Sargent Inv. Co. to J. I. Case, 4.8 acres @ $8,000 per acre,

From Sargent Inv. Co. to Gibbs-Cook, 3-plus acres @ $8,000 per acre,

From Gibbs-Cook to Firestone Tire & R. Co., part of last tract @ $12,000 per acre,

Form Brown to Nussbaum, 7 acres @ $9,000 per acre,

From Meister to Stoddard Development Corp., 5 acres @ about $3,500 per acre From C. & N. W. Ry. to Sargent, 3.62 acres @ $2,500 per acre,

From Goode to Stran-Steel, about 7 acres @ $3,000 to $4,000 per acre,

To Iltis Lumber Co., 8 acres @ $2,000 per acre.

First of these tracts was a strip about 33 feet wide for access to a highway.

On plaintiffs' cross-examination of defendant's witness Rouze, who testified to before and after values of the Murphy tract, he was asked about each of these sales and also a sale from Jensen to Stoddard Development Co. of five acres said to be at $4,000 an acre. Defendant's objections to the questions were consistently overruled. On plaintiffs' redirect examination of their witness Hall, who testified to before and after values of both subject properties, at least three sales listed above were shown, over defendant's objection.

Prior to our decision in Redfield v. Iowa State Highway Comm., 251 Iowa 332, 99 N.W.2d 413, 416, two months after the trial court decided the present cases, the rule in Iowa and several other states was that sale prices of other similar properties could be shown only on cross-examination of expert value witnesses, to test their knowledge and competency and as bearing on the weight and value of their opinions. See Redfield case and citations at page 416 of 99 N.W.2d, including Hubbell v. City of Des Moines, 166 Iowa 581, 595, 147 N.W. 908. The...

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