Maxwell v. Iowa State Highway Com'n

• Decision Date: 09 March 1937
• Docket Number: 43189.
• Citation: 271 N.W. 883,223 Iowa 159
• Parties: MAXWELL et al. v. IOWA STATE HIGHWAY COMMISSION et al.
• Court: Iowa Supreme Court

271 N.W. 883

223 Iowa 159

MAXWELL et al. v. IOWA STATE HIGHWAY COMMISSION et al.

No. 43189.

Supreme Court of Iowa.

March 9, 1937

Appeal from District Court, Jasper County; Frank Bechly, Judge.

This is an appeal from an award of damages in a condemnation proceeding. From a verdict and judgment of $7,250 in favor of plaintiffs, defendants appeal.

Reversed.

Superseding opinion in 265 N.W. 899.

John H. Mitchell, Atty. Gen., Henry N. Graven, Sp. Asst. Atty Gen., and M. R. Hammer, Jr., of Newton, for appellants.

Korf & Korf and Cross & Hamill, all of Newton, for appellees.

KINTZINGER, Justice.

The defendants appeal from a judgment of $7,250 for the taking of 10 1/2 acres of farm land in a condemnation proceeding. An opinion in this court affirming the judgment of the lower court was filed on February 20, 1936, in Maxwell v. Iowa State Highway Commission, 265 N.W. 899.A petition for a rehearing was later filed therein, and rehearing granted; the former opinion is, therefore, hereby withdrawn and the following substituted in lieu thereof.

The facts in this case have been fairly and fully set out in the former opinion to which reference is hereby made for a further consideration thereof.

Briefly stated, the case involves an appeal from an award of damages in a condemnation proceeding commenced by the Iowa State Highway Commission. The Highway Commission was not satisfied with the award of the sheriff's jury, and appealed to the district court of Jasper county. The trial in that court resulted in a verdict of $7,250 in favor of plaintiffs, and is the subject of this and the former appeal herein.

I.

It is contended that the trial court erred in not limiting the jury to a consideration of the elements of damage specifically alleged in the pleadings as the measure of damages, and that an instruction to that effect was required by the provisions of Section 7841-c1 of the Code of 1935.

This section provides as follows: " Pleadings on appeal . A written petition shall be filed by the plaintiff on or before the first day of the term to which the appeal is taken, stating specifically the items of damage and the amount thereof. The defendant shall file a written answer to plaintiff's petition, or such other pleadings as may be proper."

It must be remembered that in original condemnation proceedings no formal pleadings are required, but after an award is made either party feeling aggrieved thereby may appeal to the district court; and this section simply provides for written pleadings on such appeal. We have heretofore held that this rule does not change the measure of damages existing prior to the adoption of this statute.

As stated in the original opinion, 265 N.W. 899, loc. cit. 906, " This language does not mean the amount of each specific item, but simply the total amount of the damages claimed by the plaintiff. Notwithstanding this section, the ultimate question in all these cases must be: What was the value of the farm as a whole immediately before the * * * condemnation and what was the value thereafter? It certainly was not intended by the enactment of this section that the petition provided for should plead as separate issues each element of damage or depreciation claimed. The only issue ultimately to be determined is the value of the entire property before and its value after the condemnation."

The court correctly stated the rule on measure of damages in several different instructions, as being the difference between the reasonable value of the farm immediately before the condemnation and immediately thereafter. This is the well-settled rule of law in this state as announced by numerous decisions prior to the adoption of section 7841-c1. Ranck v. City of Cedar Rapids, 134 Iowa, 563, 111 N.W. 1027; Watters v. Platt, 184 Iowa, 203, 168 N.W. 808; Gregory v. Kirkman Independent School Dist., 193 Iowa, 579, 187 N.W. 553; Des Moines W. W. Laundry v. City of Des Moines, 197 Iowa, 1082, 198 N.W. 486, 34 A.L.R. 1517.

In all of these cases evidence tending to show specific items of damage to the property condemned is held admissible as bearing upon the question of the value of the property immediately before and immediately after the condemnation, and all evidence of such damage is properly considered by the jury in arriving at the measure of damages, and not for the purpose of creating an issue as to each specific item of damage pleaded or proven.

In Ranck v. City of Cedar Rapids, 134 Iowa, 563, loc. cit. 565, 111 N.W. 1027, 1028, this court said: " Generally speaking, the true rule seems to be to permit the proof of all the varied elements of value; that is, all the facts which the owner would properly and naturally press upon the attention of a buyer to whom he is negotiating a sale and all other facts which would naturally influence a person of ordinary prudence desiring to purchase. * * * In this estimation the owner is entitled to have the jury informed of all the capabilities of the property, as to the business or use, if any, to which it has been devoted, and of any and every use to which it may reasonably be adapted or applied."

This has also been declared to be the rule after the adoption of section 7841-c1. Dean v. State, 211 Iowa, 143, 233 N.W. 36; Welton v. Iowa State Highway Comm., 211 Iowa, 625, 233 N.W. 876; Randell v. Iowa State Highway Comm., 214 Iowa, 1, 241 N.W. 685.

This rule is adhered to in Randell v. Iowa State Highway Comm., 214 Iowa, 1, 241 N.W. 685. The effect of section 7841-c1 is not to make each specific item of damage alleged a separate issue, the sum total of which is to make up the amount of damage to be awarded.

As stated in the former opinion, 265 N.W. 899, loc. cit. 906, " it certainly was not intended by the enactment of this section that the petition * * * should plead as separate issues each element of damage or depreciation claimed. The only issue ultimately to be determined is the value of the entire property before and its value after the condemnation and appropriation."

In Randell v. Iowa State Highway Comm., 214 Iowa, 1, loc. cit. 9-11, 241 N.W. 685, 689, decided after the adoption of section 7841-c1, and in which that section was considered, this court said:

" Generally speaking, the appellee would be entitled to damages under the condemnation in an amount measured by ‘ the difference between the value of the whole property from which the condemned property is taken at the time of the taking, and the value of the whole property from which it is taken after the taking is complete.’ Watters v. Platt, 184 Iowa, 203, 168 N.W. 808, 810. * * *

So, in the case at bar, it was proper for the appellees to introduce evidence indicating the necessity for the removal and replacement of the fence. Such fact has a direct bearing on the value of the farm immediately before and immediately after the condemnation. The cost of removing and replacing the fence had a materiality and relevancy to the final question to be determined by the jury. First, this evidence indicated that the damages to the land were substantial, as distinguished from mere nominal; and, second, the evidence was useful to explain, support, or deny ‘ the estimates made of the value of the property as it stands.’ * * * While such cost of removing and replacing the fence might not be the damage to the land, yet evidence of said cost is admissible for the purposes * * *: First, to indicate, if it does, that the damages to the land were substantial as distinguished from nominal; and, second, to assist, if it will, in explaining, supporting, or denying the estimates made of the value of the property by other witnesses. Although the testimony is thus admissible, caution must be taken by the trial court to properly instruct the jury upon the subject. * * * The aforesaid cost is not to be added to the damages otherwise found to exist by the jury, and the fact-finding body should be so instructed."

The court in this case also cites with approval the case of Ranck v. City of Cedar Rapids, 134 Iowa, 563, 111 N.W. 1027, hereinabove referred to.

This rule was also reaffirmed after the adoption of section 7841-c1 in Welton v. Iowa State Highway Comm., 211 Iowa, 625, loc. cit. 638, 233 N.W. 876, 884, where this court said: " There is but one issue in this case, and that involves the difference in the reasonable market value between the plaintiff's farm taken as a whole immediately before and immediately after the condemnation proceedings."

In view of the rule given by the court on the measure of damages in its instructions as a whole, we find no error in the court's failure to limit the jury to the specific elements of damage pleaded.

II.

Appellants also contend that the court erred in giving instruction No. 4, in which the court said: " The real right of which the property owner is deprived in the exercise of eminent domain and for which under our constitution he is entitled to be compensated, is the right of remaining in the undisturbed possession and enjoyment of his property."

Of course, this instruction is merely preliminary to later instructions given on the measure of damages. We have carefully examined the instructions on the measure of damages as referred to in the preceding division of this opinion, and find from such examination that the court correctly instructed the jury on the measure of damages, which is the difference between the reasonable market value of the property immediately before the condemnation proceedings were had and immediately thereafter.

The instruction complained of, while it might better have been omitted, is simply an abbreviated definition of the term " eminent domain," which means that a person cannot be deprived of his property for public purposes without just...