Linge v. Iowa State Highway Commission

• Decision Date: 02 May 1967
• Docket Number: No. 52373,52373
• Citation: 260 Iowa 1226,150 N.W.2d 642
• Parties: Ruby Scott LINGE, David Earl Linge, Scott Linge, and Gladys Linge Schultz, Executors and Trustees under the Last Will and Testament of Carl K. Linge, Deceased, and David A. Linge, Appellants, v. IOWA STATE HIGHWAY COMMISSION, Appellee.
• Court: Iowa Supreme Court

Page 642

150 N.W.2d 642

260 Iowa 1226

Ruby Scott LINGE, David Earl Linge, Scott Linge, and Gladys Linge Schultz, Executors and Trustees under the Last Will and Testament of Carl K. Linge, Deceased, and David A. Linge, Appellants, v. IOWA STATE HIGHWAY COMMISSION, Appellee.

No. 52373.

Supreme Court of Iowa.

May 2, 1967.

Nolan, Lucas & Nolan, Iowa City, for appellants.

Fisher & Pickens, Cedar Rapids, and Raymond Walton, Sp. Asst. Atty. Gen., Ames, for appellees.

GARFIELD, Chief Justice.

Plaintiffs David E. Linge and the executors and trustees of his deceased father's estate appealed to the district court from the assessment of damages by condemnation commissioners for the taking of 4.8 acres of plaintiffs' land and certain rights of access thereto from primary highway 149. From the award based on the jury verdict in the district court plaintiffs have appealed to us.

Three errors in admission of evidence are assigned. We hold plaintiffs are not entitled to a reversal by reason of them.

I. On June 2, 1959 plaintiffs purchased the west half of a certain quarter section of farm land at the southwest edge of Cedar Rapids. (For convenience we disregard the death of David E. Linge's father and substitution of his executors as plaintiffs.) Paved primary highway 149 runs diagonally from southwest to northeast across the tract. Aside from the highway there were 74.65 acres. The land has never been used for anything but farming. Improvements were of little value.

On February 28, 1963 defendant state highway commission took five feet of plaintiffs' land along the south side of highway 149 and 115 feet along the north, in order to widen it into a divided highway, with two lanes for travel in each direction. The notice of condemnation provided that all rights of direct access between the highway and the land were also condemned except the two entrances on each side of the highway and, if the property should be developed for other than agricultural purposes, these four entrances would be at slightly different locations. Only the four existing field entrances from the highway have ever been used.

The record and plaintiffs' brief show the six commissioners appointed by the writer to assess the damages from the taking as provided by section 472.6, Code 1962, fixed them at $10,800. Trial of plaintiffs' appeal to the district court from this award resulted in a jury verdict of $10,500, the amount one of defendant's value witnesses fixed, and $900 more than its other value witness fixed as the difference in values before and after the taking.

Plaintiffs used one value witness in addition to plaintiff Linge. The witness said the market value of the property before the taking was $2000 an acre or $149,300 'and after the taking it was $1655 an acre, or $115,600, or a difference of $68,000'. Assuming this expert's before-and-after values were correct, the difference testified to by him is about twice what it should be.

Plaintiff Linge's testimony is that just before the taking of the 4.8 acres and rights of direct access to 149, the fair market value of the property was $150,000 and after the taking it was $75,000.

Three years and nine months before the condemnation plaintiffs paid $94,425 for the entire tract. This, according to Mr. Linge, was $1250 per acre for the land north of highway 149 and $1000 per acre for the land on the south.

The primary purpose for which plaintiffs bought the tract, according to the witness David E. Linge, was for a cemetery but permission for such use was denied by county zoning authorities. Plaintiffs then considered subdividing the tract for residence lots. When the city limits were extended to include the land it was automatically zoned R--1 for residential use.

II. Plaintiffs first assign error in the admission in evidence of an ordinance passed and approved by the City of Cedar Rapids on February 26, 1962, (a year before this condemnation) establishing access control on the portions of three primary highways within the city, including 149. The ordinance (exhibit B) recites it was passed pursuant to agreement in resolutions of the city council adopted July 11, 1957 and it shall be deemed an exercise of the police power under what is now chapter 306A Codes 1962, 1966.

The ordinance further provides: 'Section 6. Presently existing access rights will not be destroyed except by gift, purchase or appropriate condemnation proceedings thereof. However, such access rights shall be subject to such regulations in the interest of public welfare and safety as the City and Iowa State Highway Commission may agree upon, provided that no additional access ways shall be permitted by the City without the consent and approval of the Iowa State Highway Commission.

'Section 7. The Iowa State Highway Commission shall be authorized to acquire right-of-way and access rights by gift, purchase or condemnation on the above described length of roadway.'

III. Before objecting to admission of the ordinance plaintiff's counsel was permitted to examine at some length the director of public works for the city by whom the exhibit was identified. Plaintiffs then objected to the offer as incompetent and immaterial to any issue in the case, no proper showing it had been legally passed, it contained self-serving matters, and the only right the city had to control access would be in conjunction with defendant commission.

There is sufficient evidence the ordinance was legally adopted and this ground of the objection seems not to be relied upon here. Ground of the objection that it was self-serving added nothing thereto. Bass v. Muenchow, Iowa, 146 N.W.2d 923, 925, and citations.

It may be taken as true that the only right a city has to control access to primary highways within its corporate limits is in co-operation with defendant commission. Code section 306A.3; Gardner v. Charles City, Iowa, 144 N.W.2d 915, 917--919. However, as we shall attempt to point out, this affords insufficient basis for excluding the ordinance from evidence.

Concerning an objection to an exhibit 'as incompetent, irrelevant and immaterial, purely self-serving, and not in any way binding on plaintiff', Lende v. Ferguson, 237 Iowa 738, 749, 23 N.W.2d 824, 830, cites several Iowa cases for this: 'Ordinarily, when an objection is made to the introduction of testimony on the ground that it is incompetent, counsel making the objection should point out in what particular or particulars the evidence * * * is objectionable and unless this is done, we have held that it does not constitute a proper basis for a reversal.'

Jackson v. Chicago, M. St. P. & P.R. Co., 238 Iowa 1253, 1263, 30 N.W.2d 97, 103, states the same rule, pointing out that the general objection is sufficient where the grounds of incompetency are obvious. Among later decisions to like effect are Ferris v. Riley, 251 Iowa 400, 408, 101 N.W.2d 176, 180--181; Wickman v. Illinois Cent. R. Co., 253 Iowa 912, 921, 114 N.W.2d 627, 632; McCrady v. Sino, 254 Iowa 856, 862--863, 118 N.W.2d 592, 595--596; Spry v. Lamont, 257 Iowa 321, 335, 132 N.W.2d 446, 454. See also I Wigmore on Evidence, Third ed., section 18, pp. 332--338.

Grounds of objection raised for the first time in the motion for new trial and on appeal are not timely and will not be considered here. See authorities supra, also Lowman v. Kuecker, 246 Iowa 1227, 1230--1231, 71 N.W.2d 586, 588--589, 52 A.L.R.2d 1380; Berg v. Ridgway, Iowa, 140 N.W.2d 95, 98--99.

'It is also thoroughly established that a motion to strike made at the close of evidence * * * based upon grounds not included in objections made, is too late and should be denied. (citations)' Ferris v. Riley, supra, 251 Iowa 401, 408, 101 N.W.2d 176, 180.

The principal complaint plaintiffs make against the ordinance here seems to be that it violates constitutional prohibitions against the taking of property without compensation. No such ground was asserted in plaintiffs' objection to the offer of the exhibit and plaintiffs are not entitled to have the complaint considered here.

IV. Aside from what is just said, the main basis for plaintiffs' belated claim of unconstitutionality of the ordinance is the insistence of their counsel in argument, notwithstanding our decisions and the prevailing rule elsewhere are to the contrary, that plaintiffs have a constitutional right to direct access to highway 149 at any and all points and any interference therewith without compensation is an unconstitutional taking of their property. Specifically the argument is that plaintiffs have a constitutional right to direct access to highway 149 from each lot they contemplate platting which may abut 149.

The only authority cited in their opening brief on this point is Jones v. Iowa State Highway Comm., Iowa, 144 N.W.2d 277 and the dissenting opinion in Lehman v. Iowa State Highway Comm., 251 Iowa 77, 99 N.W.2d 404. Their argument asserts the Jones opinion is not sound or good law and the holdings in Iowa State Highway Comm. v. Smith, 248 Iowa 869, 875, 82 N.W.2d 755, 759, 73 A.L.R.2d 680; Warren v. Iowa State Highway Comm., 250 Iowa 473, 93 N.W.2d 60; and the Lehman case are erroneous. The only one of these opinions that receives approval is the dissent in Lehman. To the Smith, Warren, Lehman and Jones cases, supra, there might be added Wegner v. Kelley (Ladd, J.), 182 Iowa 259, 265, 165 N.W. 449; Wilson v. Iowa State Highway Comm. (Oliver, J.), 249 Iowa 994, 90 N.W.2d 161; Belle v. Iowa State Highway Comm., 256 Iowa 43, 52--54, 126 N.W.2d 311, 316--317; Fort Dodge, D.M. & So. v. American, etc., Corp., 256 Iowa 1344, 1354, 131 N.W.2d 515, 522.

There is no dissent to the Smith, Wilson, Warren or Jones opinions, supra.

In view of plaintiffs' insistence they have a right of access from their land to highway 149 at any and all points, it may be well to quote the rule from the Smith opinion, supra, to which we are firmly committed (pp. 875, 877 of 248 Iowa, p. 759 of 82 N.W.2d): 'It seems...