Kemmerer v. Iowa State Highway Comm'n
| Decision Date | 15 March 1932 |
| Docket Number | No. 41228.,41228. |
| Citation | 241 N.W. 693,214 Iowa 136 |
| Parties | KEMMERER v. IOWA STATE HIGHWAY COMMISSION. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Boone County; H. E. Fry, Judge.
This is a proceeding in condemnation of real estate for a highway. Verdict in favor of the plaintiff, and the defendant appeals.
Affirmed.John Fletcher, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and T. J. Mahoney, of Boone, for appellant.
Dyer, Jordan & Dyer, of Boone, for appellee.
The appellee is owner of 70.3 acres of land in section 5, township 83 north, range 25 west, Boone county. The right of way of the Fort Dodge, Des Moines & Southern Railroad Company traverses a portion of this from southeast to northwest, cutting off a corner, the acreage of which is not shown. The strip sought to be condemned for highway purposes is 120 feet in width and parallels the right of way of the railroad company to a point a short distance southeast of the improvements on the tract, where it curves or bends to the right and continues in a northwesterly direction to a point near and east of the northwest corner. The improvements, consisting of residence, barns, the usual farm buildings, orchard, trees, etc., lie north of the railroad right of way and west of the highway, which is already constructed as a part of the Lincoln highway. 1.21 acres of the triangular tract in the northwest corner is used for pasture. The improvements are on the 2.43 acre tract immediately south and southeast thereof and completes the triangle. It extends to the railroad right of way. The tract adjoins a north and south highway on the west. The highway in question enters the tract from the southeast a short distance west of the center and crosses the farm in the direction already stated. It is constructed upon a fill which, at the highest point, is approximately 7 feet in height. A cattleway having dimensions 5 feet by 7 is placed at an apparently convenient place for the convenience of the farm. A driveway has been constructed so as to permit access from the improvements to and across the highway to the adjoining cultivated premises. A gate is placed and maintained on either side of the highway. The gates and fence were constructed by the commission without expense to appellee. The highway occupies 4.42 acres. The condemnation commission awarded damages in the sum of $3,400. The jury returned a verdict for $6,755.25.
[1] I. One of the claims of appellee upon the trial was that the cattleway was inadequate for all purposes. Appellee and other witnesses were permitted, over objections of appellant, to testify that, if stock passed through the cattleway in an orderly manner, the opening was adequate, but that, if they did not do so, but crowded or became excited, the opening was not large enough to allow the stock to pass without difficulty and some damage; that the ceiling was so low that, if a horse were to throw its head up, it might strike it and thereby be injured; that the accumulation of mud and ice in the opening would interfere with the passage of stock through it and cause confusion; that the opening is not wide enough for a team to pass through. Other testimony of similar nature was permitted by the court to be introduced by appellee. The objection to the testimony was that it was speculative, not a proper element of damages, remote, and argumentative. The court might well have somewhat restricted the examination of the witnesses at this point. The adequacy of the opening would to some extent affect the value of the land after the highway was constructed. It was an element to be considered in fixing the value of the land as it now appears. The propositions were in a sense hypothetical and the answers in the nature of conclusions, but it would have been difficult to express the reasons for the alleged inadequacy of the opening without to some extent assuming what might happen as well as the statement thereof in language more or less in the nature of conclusions.
[2] The appellee has not for ten years kept any considerable quantity of stock on the premises--just a few milch cows and some calves. The jury could not have been inflamed as suggested by counsel by this testimony. It was of little probative value and hardly of a nature to arouse the passion and prejudice of the jury. The instructions fully and with substantial accuracy stated the measure of damages, together with the elements to be considered. The error, if any, in the admission of this testimony, could not, under the facts of this case, have resulted in any substantial prejudice to appellant, and a reversal predicated thereon would be rather technical than otherwise.
[3] II. In his original petition filed in the district court appellee prayed damages in the sum of $5,000. A motion asking that the petition be made more specific in that appellee be required to state specifically the items of damage claimed by him was filed in behalf of appellant. Complying with the ruling of the court sustaining this motion, appellee set out numerous items of damage, the whole aggregating $9,676, for which sum damages were asked. The court on motion of appellant struck the specific sums set opposite each separate item of damages, but declined to strike the aggregate amount asked in excess of $5,000. The ruling of the court on this motion constitutes the basis of one of appellant's propositions for reversal.
Section 7822 of the Code of 1931 provides that the procedure for the condemnation of private property for work for internal improvement and for other public use and purposes, except as otherwise provided by law, shall be in accordance with the provisions of chapter 366 of the Code of 1931 (section 7822 et seq.).
Section 7841-c1 requires that a written petition be filed by the plaintiff (appellant) stating specifically the items of damage and the amount thereof. The defendant is also required to file an answer in writing, and the cause is tried to a jury as an action by ordinary proceedings. We find nothing in the statute in any way designed to prohibit the filing of an amendment to the petition in such action increasing the amount of damages claimed therein. Of course, such an amendment, if filed too late, might, under some circumstances, justify a continuance as in other actions, but we think it obvious that either party has a right to amend his pleadings as in any other action tried by ordinary proceedings. No authorities are cited in the briefs on this point and we know of none.
[4] III. At the conclusion of appellant's testimony, counsel offered the original petition in evidence. The court admitted the document over the objections of appellant. Thereupon, appellee was recalled and asked by his counsel to state his reasons for increasing the amount of damages. He was permitted, over the objections of appellant, to testify that as time elapsed he became convinced that the amount claimed was too small. This was followed by cross and redirect examination of the witness. The original petition was already before the court, and, while the document offered by appellee might well have been excluded, no possible prejudice resulted therefrom. Appellee, as a witness in his own behalf, testified fully as to each and all of the respective elements of...
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