Korf v. Fleming
| Decision Date | 06 April 1948 |
| Docket Number | 47159. |
| Citation | 32 N.W.2d 85,239 Iowa 501 |
| Parties | KORF et al. v. FLEMING et al. |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
Richard A. Stewart, of Washington, and R. L. Read and A. B. Howland both of Des Moines, for appellants.
Carlton C. Wilson and Alfred E. Baldrige, both of Washington, for appellees.
Plaintiff S.W. Korf, is the owner of the 140-acre farm in Washington County, Iowa, across which the defendants, in the exercise of the right of eminent domain, condemned a right of way and constructed a track thereon for the relocated line of their railway. Plaintiff, Charles Cannon, had been a tenant of the farm during the years 1944 and 1945, and was the tenant during the 1946-1947 farm year under a lease providing for a cash rental of $10 an acre, or $1400 for the year.
On June 26, 1946, under statutory proceedings, commissioners appointed by the sheriff of the county to assess and appraise the damages incident to the condemnation, fixed the amount therefor to be paid to Korf, as the owner of the farm, at $7750, and the amount to be paid to Cannon, as the tenant, at $1200. Defendants appealed from these awards to the district court, and upon trial in said court, statutory record of the awards to owner and tenant was entered in the respective sums of $8750 and $1350. On said appeal the owner claimed damages in the sum of $15,400, and the tenant in the sum of $1950. Defendants do not assign error on this appeal because of the court's order fixing the amount of fees for plaintiffs' attorneys at $1175.
The farm is about six miles from the city of Washington, the county seat, and is about three miles from the town of Ainsworth. It is in a consolidated school district. A rural mail route, electric power line, and school-bus route, are along an all-wealther gravel highway just south of and abutting the farm. The farm consists of three 40-acre tracts in a north-south row--the E. 1/2 of the N. E. 1/4 of section 30, and the S. E. 1/4 of the S. E. 1/4 of section 19--and the north 20 acres of the S.W. 1/4 of the S.W. 1/4 of section 20. The tract last described abuts the east side of the north forty.
The right of way, 200 feet wide, with an area of 6.69 acres, crosses the south forty diagonally southwest-northeast. The south line of the right of way at the east line of the forty is about 1041 feet north of the south line of the forty, and at the west line of the forty it is a little more than 200 feet north of said south line. Approximately 13 acres lie south of the right of way, and the remainder of the farm lies north of it. The buildings--house, barn, double corn crib, single corn crib, granary, hoghouse, chicken and brooder houses, well, tank and windmill--are all south of the right of way and separated by it from the rest of the farm. They are adequate and in quite good repair, and are situated about midway east and west near the south line of the south forty.
The railroad cut, extending the length of the right of way, is about 15 feet deep at its east end, and about 6 feet at the west end, and about 11 feet deep midway between the ends, where the lane crosses the right of way. Before the cut was made a fenced lane extended from the barn lot north about the center line of the south forty and over 200 feet into the middle forty, and from that point an unfenced farm road extended northeasterly up into the north forty to a tract of about 10 acres of tillable ground along the north side thereof. This lane and road afforded ready access to all parts of the farm north of the buildings, and permitted the livestock, to go at will to and from the pasture and fields and the shelter, feed and water of the barn lot. The defendants constructed a planked crossing where the lane intersects the right of way. To reduce the grade on each side of the crossing to not exceed 8%, the defendants excavated beyond the right of way lines on each side so that the gates in the lane on each side of the crossing are 366 feet apart. The farm buildings are about 300 feet from the track. West from the lane crossing, the track is level and straight, and on a clear day a person standing on the natural ground surface on either side of the crossing can see a train approximately a mile to the west, and to the east about 3100 feet, where the track curves to the north. Over this track three regularly scheduled passenger trains and three freight trains will pass westward each day, and the same number and type of trains will daily pass eastward. They will be either diesel or steam propelled. Operating rules of defendants permit Rocket-type diesel-powered passenger trains to travel at a maximum speed on an approximately straight track, of 90 m. p. h., steam-powered passenger trains at 70 m. p. h., and freight trains at 50 m. p. h. There will also be extra freight trains.
The right of way crosses the very best land in the farm. The south forty is level and thoroughly tilled. The soil is a very productive Grundy silt loam. In 1946 the corn on that forty averaged 100 bushels an acre. Three and one-half acres of corn growing on the right of way west of the lane were destroyed by the railroad construction. East of the lane on the right of way, the tenant secured the first cutting of clover but lost the remainder, except a little hay which he was able to cut on the right of way.
The middle forty has a lighter and less productive soil than that of the south forty. It is also more readily subject to erosion. In 1946 the west half of this forty--19.5 acres--was in oats. The yield was light--about 500 bushels. The east half of the middle forty has a clover meadow of a few acres along its south line, and just north of the east part of this meadow in 1946 there was 3.2 acres of corn, which yielded between 65 and 70 bushels per acre. Extending northward through the north three-fourths of the east half of the middle forty and into the north forty to Long Creek, is an eroded ditch. At its greatest width it is perhaps 60 feet, and its greatest depth is from 10 to 15 feet. Several sodded swales drain into it. On each side of the ditch is permanent bluegrass pasture of 14.4 acreage. The tenant testified that he lost the use of this pasture in 1946. Just why he did is not clear as it was completely fenced at all times.
In 1946 there were 9.2 acres of corn along the north border of the north forty. The remainder of that forty, about 31 acres, is creek bottom and rough timber pasture. At the south line is a small barn into which 15 head of cattle might crowd for shelter, but which could properly accommodate only about 6 head. Long Creek crosses this forty east and west about midway and on eastward across the south side of the 20 acres in the S.W. 1/4 of the S.W. 1/4 of section 20. In the latter 20 acres north of the creek, there were 16 acres of corn in 1946. The tillable ground in these 20 acres and in the north 10 acres of the north forty is of good soil--not so good as the south forty--and productive, but has some overflow water from the north and from the creek. The corn in these two fields averaged 60 bushels per acre in 1946. The 4 acres south of the creek, in the 20 acres in section 20, were of very little value to the farm and of no value to the tenant in 1946. It is wet, brushy, creek bottom and is fenced out of the farm and into the land on the Montgomery farm.
The farm as a whole is just an average farm. Approximately one-third of it is permanent pasture of mediocre grade. The farm had been operated as a combination stock and grain farm. There was evidence that it would raise sufficient feed for about 30 head of cattle, old and young and perhaps 90 hogs. In 1946 the tenant had 5 milk cows, and at the time of the trial in January 1947, he had 5 brood sows.
The petition of the plaintiff contained two counts--one for the owner and the other for the tenant. Damages were claimed for the loss of the ground appropriated; the damage to the land remaining; that loss of the crops thereon; for the division of the farm and the consequent damage and inconvenience in its operation because thereof; the dangers incident to the use of the lane crossing by the occupants of the farm in the taking of the farm machinery, crops and livestock over it; the interference with the movements of livestock between the pasture and fields and the barn and feed lots and water tank; the additional fencing to mow; the smoke, soot, dust, noise, and fire hazards incident to fast moving trains; the reduction in the sale and rental value of the farm; the increased expense and labor in operating the farm.
The defendants conceded that the farm would be damaged, but alleged the extent thereof would not exceed $5000 to both the owner and the tenant, and that any damage awarded should be apportioned between them. In their answer they specifically denied the various elements of damage alleged in the petition.
The defendants cut the line fences of the condemned land about July 12, 1946. Grading work commenced on August 12, 1946. The first work consisted in the removal of about 18 inches of surface soil. The machines worked from east to west. About three weeks later an elevating grader was put in, and removed 3 feet of dirt the length of the right of way. This work was done in the week ending September 21, 1946. Defendants started the construction of the right-of-way fences in August and completed them early in December, 1946. The track was laid but not fully ballasted at the time of the trial. Much of the dirt had not been leveled at that time.
Defendants assign twelve errors. A number of these complain of improper limitation of the cross-examination of some of plaintiffs' witnesses on values. We will first give the facts of each incident, and then comment on all of them.
I....
To continue reading
Request your trial