Kerr v. Tysseling

• Decision Date: 24 November 1931
• Docket Number: No. 40852.,40852.
• Parties: KERR ET AL. v. TYSSELING ET AL.
• Court: Iowa Supreme Court

239 N.W. 233

KERR ET AL.

v.TYSSELING ET AL.

No. 40852.

Supreme Court of Iowa.

Nov. 24, 1931.

Appeal from District Court, Marion County; E. W. Dingwell, Judge.

“Not to be officially reported.”

The plaintiffs appealed to the district court from allowance of damages to them from construction of drainage ditch. The district court gave them judgment for the amount of the verdict, $1,050. The Board of Supervisors appeal.

Affirmed.

H. E. De Reus, of Knoxville, for appellants.

Vander Ploeg, Hays & Heer, of Knoxville, for appellees.

MORLING, J.

The drainage proceedings seem to have been for the purpose of straightening a creek to stop overflow. Plaintiffs owned a farm of 55 acres in a body, consisting of the north 25 acres of one 40 and, immediately adjoining it on the west, the east 20 acres of another 40, and a tongue of 10 acres of land projecting north from the northwest corner of the west 20 acres. The tongue of 10 acres is formed by the creek curving from the north line of the west 20 acres running northwardly, westwardly, and southwestwardly through the 40 north of the 20 acres. The ditch is to be constructed westwardly from the west bank of the creek, which is at about the middle of the north line of the west 20 acres, and extends westwardly until it again connects with the creek. The length of the ditch through plaintiffs' farm is 400 feet. Its excavated width, 22 feet on top, 10 feet on bottom, depth 11 or 12 feet. The only accessible highway touching any part of the land appears to be on the east side of the farm. Hence the 10-acre tract will be entirely cut off by the ditch from the remainder of the farm.

I. Ten of the defendants' assignments of error go to rulings on the admissibility of testimony mostly on objections to cross-examination. No questions of importance arise on these objections. We find the rulings to be without error and without prejudice.

II. Plaintiffs' witnesses on the measure of damages testified to the fair and reasonable market value of the land before construction and its value afterward. Plaintiffs made no effort to prove by them specific elements of damages, such as the value of the 10 acres cut off, or the necessity or cost of bridges.

[1][2] III. Defendants claim that by two of the instructions “the court permitted the jury to speculate upon improper matters almost without limit” and directed the jury to take into consideration the cost of bridges. The instructions must be considered in their entirety. Error may not be predicated upon a part of the instructions whereby a misinter-pretation of the instructions as a whole might result. The court told the jury that the measure of damages was the difference, if any, in the market value of the land as it was before construction and as it would be left immediately after construction; that in construing the evidence of market value before construction the jury “should consider” the character of the land, its ditches or swales, its improvements, adaptability, and after considering all of said matters and all others that have been developed by the proof, the jury should, from the evidence of the witnesses, determine the fair and reasonable market value before construction; that in construing the evidence of market value after construction the jury should consider the size, character, and location of the ditch, the amount of ground taken, whether the lands...