Kukkuk v. City of Des Moines
| Decision Date | 14 March 1922 |
| Docket Number | 34352 |
| Citation | 187 N.W. 209,193 Iowa 444 |
| Parties | WILLIAM J. KUKKUK, Executor, Appellee, v. CITY OF DES MOINES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.
PROCEEDINGS for the condemnation of a tract of land for purposes of a street in the city of Des Moines. The defendant appeals from the award of the jury.
Affirmed.
W. E Miller, Henry H. Griffiths, Chauncey A. Weaver, and Russell Jordan, for appellant.
Parrish & Parrish, for appellee.
One Richard Guenther was the owner of the property in question. Pending litigation, Guenther died, and the appellee, as his executor, has been substituted in this action. In the opinion we will refer to the appellee as though he were the original owner.
In August, 1919, proceedings were had for the condemnation of a strip of ground 25 feet wide and 427 feet long, lying on the south side of a 6-acre tract owned by the appellee, for the purpose of opening Washington Street in the city of Des Moines, from East Thirty-third Street to East Twenty-ninth Street. An award was made by the sheriff's jury, and an appeal taken to the district court, where the case was tried twice; and from the final verdict, awarding appellee $ 1,500, this appeal is prosecuted.
I. Appellant's argument is largely devoted to the contention that the court erred in not limiting appellee to proof of the proper measure of damages. It appears from the evidence that there has never been any street established on the south side of appellee's property, and that the said property is so situated that the establishment of the street to be opened under the said condemnation proceedings will necessarily result in the construction of a substantial excavation along a portion of appellee's property. The appellee offered proof with regard to the necessary effect upon the remaining portion of appellee's tract of land, by reason of the making of said excavation for said street. Appellant's contention is that it was error to permit the appellee to prove the effect that would be produced upon the remaining portion of the tract by the construction of the excavation.
Evidence was offered, tending to show that such construction of said street would necessarily result in causing the soil upon the remaining portion of appellee's tract adjacent to said street to slide off, unless a retaining wall was built. In other words, appellee proved that injury would result to the remaining portion of his tract by the necessary loss of lateral support in the construction of the street for which the condemned strip was taken.
Appellant's contention is that this permitted a merging of two separate and distinct proceedings, one for the condemnation of land, and the other for damages caused by a change in the grade of a street. It is argued that condemnation is provided for by Sections 880, 884, and 999 of the Code, and that damages to property by reason of a change in the grade of any street are to be determined by Sections 785 to 790, inclusive, of the Code; and that both remedies are not available in the condemnation action.
Proceedings for the condemnation of a tract of land for the original establishment of a street differ materially, under our statute, from proceedings for damages for a change in the grade of an established street. We are not concerned, in this case, with any question as to the liability of a city for establishing a grade on an already existing street, nor for changing a street grade that had once been established. We are dealing only with the original taking of property for the establishment of a street, where none has heretofore existed.
The real crux of the inquiry is whether or not, in a condemnation proceeding for the taking of property for the establishment of a street, it is proper to take into consideration the condition of the remaining portion of the tract, after the condemned strip has been taken and appropriated to the purpose for which it is taken. In other words, as in the instant case, where the strip is taken for the original establishment of a street, and the evidence shows that, in order to properly use the same for street purposes, a substantial excavation will be required to be made, can said fact be taken into consideration in determining the damages that the property owner will suffer to the remaining portion of the tract? Or more specifically, can the depreciation, if any, to the remaining portion of said tract, because of the loss of lateral support that will necessarily result thereto from the proper construction of the contemplated street, be considered in awarding the damages in the condemnation proceedings?
In the first place, it is obvious that Section 785 and the sections following have to do wholly with a change in the established grade of an existing street. Said Section 785 provides as follows:
"When any city or town shall have established the grade of any street or alley, and any person shall have made improvements on the same, or lots abutting thereon, according to the established grade thereof, and such grade shall thereafter be altered in such a manner as to damage, injure, or diminish the value of such property so improved, said city or town shall pay to the owner of such property the amount of such damage or injury."
It is apparent from the very language of said section that it contemplates a change in "an established grade that shall thereafter be altered in such manner as to injure or damage" adjacent property. No such situation exists where no street has ever been opened, and where no grade has ever been established. In the instant case, appellee could have no recourse to such statute for any injury that might result to his property by reason of the original establishment or construction of said street. This proceeding is in no way an "alteration of an established grade." There never has been any street, and there never has been any grade on the south side of appellee's property.
Unless we are to make an exception in the case of streets in cities and towns, it must be held that, in condemnation proceedings, it is proper to take into consideration the effect which the proper use of the condemned strip will have upon the residue of the tract from which it is taken. This is the general rule in proceedings in eminent domain. In proceedings of this kind, the measure of damages is generally the difference in value of the entire tract before the taking of the condemned portion and its value after the taking, having in consideration the purposes for which the condemned tract is to be used, and disregarding benefits. In repeated decisions since Sater v. Burlington & Mt. P. P. R. Co., 1 Iowa 386, we have recognized this rule. It is so familiar and so well established that we do not need to collect the authorities to sustain it.
We have also recognized the rule that damages are not limited to the value of the land taken, but include such damages as result proximately from the use for which it is taken. Kucheman v. C. C. & D. R. Co., 46 Iowa 366; Dreher v. I. S.W. R. Co., 59 Iowa 599, 13 N.W. 754.
The value of the tract "after the taking" is to be determined by the condition in which the property will be, assuming that the condemned portion is properly used for the purpose for which it is taken. For example, if the condemned tract is to be used for railroad purposes, the value of the tract after the taking is to be determined by giving consideration to its value as affected by the use to which the condemned strip is dedicated, without, of course, considering any benefits that may accrue by reason of the improvement; and hence consideration is to be had of the manner in which the property will be affected by the noise, smoke, and other things incidental to the operation of trains upon the appropriated land. Wilson v. Des Moines, O. & S. R. Co., 67 Iowa 509, 25 N.W. 754.
In a general way, it may be said that all matters, either present or future, that necessarily and proximately affect the market value of the tract by the appropriation and proper use of the condemned portion for the purpose for which it is taken, may be considered in assessing damages. Miller v. Keokuk & D. M. R. Co., 63 Iowa 680, 685, 16 N.W. 567; Hileman v. Chicago G. W. R. Co., 113 Iowa 591, 85 N.W. 800; Doud v. Mason City & Ft. D. R. Co., 76 Iowa 438, 41 N.W. 65; Richardson v. City of Centerville, 137 Iowa 253, 255, 114 N.W. 1071; Bennett v. City of Marion, 106 Iowa 628, 76 N.W. 844; Wissmath Pkg. Co. v. Mississippi R. P. Co., 179 Iowa 1309, 1327, 162 N.W. 846; Ellsworth & Jones v. Chicago & I. W. R. Co., 91 Iowa 386, 391, 59 N.W. 78; Watters v. Platt, 184 Iowa 203, 208, 168 N.W. 808.
Applying the general rules to the instant case, it is obvious that the appellee was entitled to show to the jury the condition in which his property would be after the condemned strip had been appropriated and used for the purpose for which it was taken.
If it had been taken for a cemetery, a schoolhouse, or a railroad, it would be proper to consider the value of the tract, with the assumption that the condemned portion was properly devoted to the purpose for which it was appropriated. It is largely a matter of assuming the attitude of a buyer, about to purchase the property, who would not only take into consideration the loss of the area of the condemned strip, but also would assume that such strip was being reasonably and properly used for the purposes of the condemnor. Ranck v. City of Cedar Rapids, 134 Iowa 563, 111 N.W. 1027, and cases cited therein.
Coming to the specific matter of the removal of lateral support by a municipality in the construction of a street, it has been...
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