Kaperonis v. Iowa State Highway Commission

• Decision Date: 08 August 1958
• Docket Number: No. 50012,50012
• Parties: Peter KAPERONIS et al., Appellants, v. IOWA STATE HIGHWAY COMMISSION, Appellee. . Aug, 2, 1960. Whicher & Davis, Sioux City, for appellants. Gill & Dunkle, Sioux City, for appellee. LARSON, Chief Justice. This is a third appeal by plaintiffs from district court awards as a result or proceedings by the Iowa State Highway Commission to condemn various parcels of real estate owned by them in Sioux City, Iowa. See Kaperonis v. Iowa State Highway Commission, Iowa, 99 N.W.2d 284, and Kaperonis v. Iowa State Highway Commission, Iowa, 100 N.W.2d 901. The property involved was all in the same locality and was similar in nature and condition. Plaintiffs' contentions are practically the same, being premised upon the allegation that the trial court, sitting as a trier of fact, erred in failing to give value to the prospective use of this property for commercial and industrial purposes. In other words while the words were changed, the tune remained the same. As in the former cases, we find no reversible error in these proceedings. Involved in this taking were two lots, each 50 feet by 150 feet. On Lot 12, Block 17, were crowded a six-room frame house, two five-room frame houses, a single story frame store building unused since the flood of 1952, a ten-room frame house containing two apartments and two small frame sheds. On Lot 1, Block 18, was a frame double garage, a sixteen-room frame house containing four apartments, and a frame three-plex house. Although both lots were on Leech Street, they did not adjoin. Wall Street divided them. While all buildings, except the garage and sheds, had sewer, water, and electrical connections, with one exception, none had central heating, hot water, or a bath. Generally, the condition of the structures was not good and they fit the description set out in the first of these cases where we said that, while there are no slums in Iowa, yet this property, 'if located elsewhere, would not have been entirely out of place in such a district.' Plainti
• Court: Iowa Supreme Court

Page 458

104 N.W.2d 458

251 Iowa 1166

Peter KAPERONIS et al., Appellants, v. IOWA STATE HIGHWAY COMMISSION, Appellee.

No. 50012.

Supreme Court of Iowa.

Aug, 2, 1960.

Whicher & Davis, Sioux City, for appellants.

Gill & Dunkle, Sioux City, for appellee.

LARSON, Chief Justice.

This is a third appeal by plaintiffs from district court awards as a result or proceedings by the Iowa State Highway Commission to condemn various parcels of real estate owned by them in Sioux City, Iowa. See Kaperonis v. Iowa State Highway Commission, Iowa, 99 N.W.2d 284, and Kaperonis v. Iowa State Highway Commission, Iowa, 100 N.W.2d 901. The property involved was all in the same locality and was similar in nature and condition. Plaintiffs' contentions are practically the same, being premised upon the allegation that the trial court, sitting as a trier of fact, erred in failing to give value to the prospective use of this property for commercial and industrial purposes. In other words while the words were changed, the tune remained the same. As in the former cases, we find no reversible error in these proceedings.

Involved in this taking were two lots, each 50 feet by 150 feet. On Lot 12, Block 17, were crowded a six-room frame house, two five-room frame houses, a single story frame store building unused since the flood of 1952, a ten-room frame house containing two apartments and two small frame sheds. On Lot 1, Block 18, was a frame double garage, a sixteen-room frame house containing four apartments, and a frame three-plex house. Although both lots were on Leech Street, they did not adjoin. Wall Street divided them. While all buildings, except the garage and sheds, had sewer, water, and electrical connections, with one exception, none had central heating, hot water, or a bath. Generally, the condition of the structures was not good and they fit the description set out in the first of these cases where we said that, while there are no slums in Iowa, yet this property, 'if located elsewhere, would not have been entirely out of place in such a district.' Plaintiffs appear to recognize this fact and seem to rely principally upon the location of the lots for value. Their qualified valuation experts measured value of the lots upon a square foot basis. Thus, we do not consider a detailed account of the condition of the buildings upon the lots would be justifiable or helpful to this opinion.

Mr. Kaperonis himself testified as to the rentals in the period before it became known the properties would be condemned. He gave the rentals for the years 1954, 1955, and 1956, as $2,498.91, $1,292.62, and $1,272.46, respectively, and he explained the reduction in income as due to the rumored action of the Highway Commission.

Here, as in the previous cases, the defendant condemned the entire lots and took possession of them August 8, 1958. The Condemnation Commission awarded plaintiffs $16,200 and, upon appeal, the trial court, jury waived, raised the award to $21,165. Still dissatisfied, plaintiffs appeal to us. They assign as error (1) the court's refusal to take into consideration the prospective commercial and industrial value of the lots by reason of their location in a heavy industrial area; (2) the court's refusal to take into consideration the prospective commercial and industrial value of the lots by reason of their proximity to the Municipal Docks on the Missouri River. Considerable testimony was introduced and admitted without objection as to these alleged elements of value, and all but one or two of the well-qualified valuation witnesses testified that they gave consideration to those elements. As may be expected, some gave it great weight and others little or none in fixing their opinions of value as experts. When such disputes arise and there is competent and material evidence before the court, it is the trier of fact that usually determines the dispute. So it is here.

I. The court sat as the trier of the facts as well as of the law. Of course no authority need be cited to the effect that its findings have the effect of a special verdict. If it is supported by any substantial evidence, the finding is binding upon this court on appeal. Kaperonis v. Iowa State Highway Commission, Iowa, 99 N.W.2d 284, 285. Referring to the trial court's findings of fact, the plaintiffs now contend it is apparent that the trial court refused to consider any element of value submitted relating to the location of the lots near the Municipal Docks and within the heavy industrial area. If by that contention they mean it refused to consider the evidence introduced, we cannot agree. Of course, if such evidence of value had been denied a jury, there may have been error, and no less if the court sitting as a trier of fact refused to consider it. It was competent, relative, and material evidence, but the record does not bear out plaintiffs' contention in this regard.

The trial court heard Mr. Kelly's testimony as to the past and anticipated use of the Missouri River for freight traffic, and the testimony of all witnesses as to the distance from the lots involved to the Municipal Docks. Clearly the trial court heard the testimony concerning that element of value due to location as it related to the dock, heavy industry, and to the rental residential area. Having so considered these elements, it could, as the fact-finder, give to them such weight in fixing the final value as it felt the evidence required. It could give each element much, little, or no value. We are satisfied that is what it did here, and of course we are not permitted to disturb such a finding of fact based on substantial and competent evidence.

In its findings of fact the court determined the average annual gross income from such property by...