Kosters v. Sioux County

• Decision Date: 13 February 1923
• Docket Number: 34784
• Citation: 191 N.W. 993,195 Iowa 214
• Parties: LANE KOSTERS, Appellee, v. SIOUX COUNTY, Appellant
• Court: Iowa Supreme Court

191 N.W. 993

195 Iowa 214

LANE KOSTERS, Appellee, v. SIOUX COUNTY, Appellant

No. 34784

Supreme Court of Iowa, Des Moines

February 13, 1923

Appeal from Sioux District Court.--C. C. BRADLEY, Judge.

APPEAL from an award for damages in condemnation proceedings for the construction of a public highway.

Reversed.

Anthony Te Paske and Hatley & Van de Steeg, for appellant.

Van Oosterhout & Kolyn, for appellee.

FAVILLE J. PRESTON, C. J., EVANS, STEVENS, and ARTHUR, JJ., concur.

OPINION

FAVILLE, J.

The appellee is the owner of a farm of 154 acres, in Sioux County. Prior to the proceedings involved in this action there was a roadway extending along the west side of said farm, and one also on the south side. The right of way of the Great Northern Railway Company passes through the farm from north to south, a distance of about 75 rods from the west line of the farm. A small creek crosses the farm from the northwest to the southeast, and the railroad crosses said creek on a trestle about 80 feet in length, the piles of which are about 12 feet apart. There is pasture land on both sides of the railroad right of way near the trestle. The crop land on the farm lies chiefly east of the railroad track, being divided by the creek into two parcels. Access to the portion of the farm east of the railroad track by stock and teams was by passage under the railroad trestle, except at times when the water in the creek prevented. There was a private crossing over the railroad track some distance south of this trestle. The buildings are located on the west side of the farm. In 1919, the board of supervisors established a new highway across the appellee's farm. This highway, as laid out and constructed, was immediately adjacent to the right of way of the Great Northern Railway Company and on the east side thereof. It was established at the usual width of 66 feet. The actual acreage appropriated was 3.9 acres. Proper proceedings by appraisement were had, as provided by statute, and the sheriff's jury awarded the appellee $ 300 per acre for the land taken and $ 1.35 per lineal rod for the necessary fence along the highway. The appraisers, in making their award, also provided that there should be a passageway for cattle constructed through the grade of the highway. On appeal to the district court, the jury awarded damages in the sum of $ 3,875. At the time of the trial, the work of constructing the highway was practically completed. A bridge was built over the creek. This is 28 feet long and 18 feet wide, and the floor is about 8 feet above the stream. There was also constructed a passageway for cattle through the highway embankment, about 50 feet south of this bridge. This passageway is about 26 feet long through the embankment, and is six feet high and four feet wide from wall to wall.

I. It is urged by the appellant that the verdict is excessive, and is the result of passion and prejudice.

The award is large, but we do not think that the amount is such as to indicate passion and prejudice on the part of the jury, or to require interference therewith on our part. The action is not of a character that is likely to unduly appeal to the passions or prejudices of a jury. The case was tried in Sioux County, where the land is situated, and it is fairly to be presumed that the jury would not be unduly inclined to award excessive damages that would have to be borne by the taxpayers of the county. It would be quite unusual if the jury was not composed in whole or in part of such taxpayers. There is nothing about the situation in the case that would tend to inflame the passions of a jury or excite their prejudices in such a manner that it would find expression in an excessive award. The injury to appellee's farm was substantial and permanent. The evidence showed that, during a large portion of the year, passage from the west side to the east side of the farm, for cattle and teams, was convenient under the railway trestle. On recommendation of the appraisers, a passageway for cattle was constructed south of the bridge through the embankment of the highway. It is not very surprising that a jury familiar with ordinary farming conditions would find that a passageway of this character, six feet high and four feet wide, was quite inadequate for the free movement of stock from one portion of the farm to the other. There would be some opportunity for passage under the highway bridge, when the condition of the stream would permit. The highway as constructed passes in the rear of the buildings on appellee's farm, and about 75 rods distant therefrom. The evidence in regard to damages ranges in various amounts from $ 300 per acre for the actual number of acres taken, to a gross sum of $ 7,700.

The amount of damages to be awarded in cases of this kind is, of necessity, largely an approximation. We cannot substitute our own judgment for that of the jury in cases of this kind, upon such a record as is here set forth. As bearing on this question, see Bracken v. City of Albia, 194 Iowa 596, 189 N.W. 972.

II. Appellant complains that testimony was permitted with regard to the cost of the construction of a larger passageway for cattle through the highway embankment. The appellee used the county engineer of Sioux County as a witness, and, during the course of his examination in chief, the following question was asked:

"Can you give us an estimate as to what the cost of a cattle pass would be, 8 feet high, 10 feet wide, for the entire length?"

The question was objected to as immaterial. Counsel for the appellee stated:

"The point is, there is a claim that the cattle pass is too small, and has too small an opening, and we contend that there should be an adequate cattle pass for the cattle to pass through, and our contention is that we are entitled to what the damages to us are for a cattle pass, the damage to which we have been put by this wholly inadequate pass, and the cost of an adequate one, built either by ourselves or someone else."

The objection was overruled, and the witness answered, "Approximately $ 2,200." Appellant's attorney moved to strike the answer, as not being a proper element of damage, and the court stated: "The motion will be overruled at this time." Nothing further was done in regard to said matter, and no other testimony was offered in the case in regard to said subject.

In determining the amount of damages, it was proper for the jury to take into consideration all pertinent facts pertaining to the condition of the farm before and after the construction of the road. The award of damages is not to be made, however by the assessment of a series of specific items. In Henry v. Dubuque & P. R. Co., ...