De Penning v. Iowa Power & Light Co.
| Decision Date | 02 August 1948 |
| Docket Number | 47276. |
| Citation | 33 N.W.2d 503,239 Iowa 950 |
| Court | Iowa Supreme Court |
| Parties | DE PENNING v. IOWA POWER & LIGHT CO. |
Cross & Hamill, of Newton, and Gamble, Read, Howland, Gamble & Riepe, of Des Moines, for appellant.
Bray Carson & McCoy, of Oskaloosa, for appellee.
Defendant Iowa Power and Light Company condemned a 100-foot strip across plaintiff's farm for a high voltage electric transmission line. Both parties appealed to the district court from the assessment of damages made by the commission appointed by the sheriff. Upon the appeal plaintiff alleged in his petition that defendant acquired under the condemnation the right of access to the condemned strip over the remainder of plaintiff's farm. The trial court overruled defendant's motion to strike these allegations as a misstatement of the rights of the parties, irrelevant immaterial and redundant. Thereupon defendant filed answer denying that it acquired by the condemnation any right of access to the condemned strip over the rest of the farm.
In a second division of its answer defendant alleged it has a convenient means of access to the 100-foot strip; if it acquired by the condemnation the right to enter upon any other portion of plaintiff's farm it 'does hereby surrender and relinquish any right so acquired to plaintiff and consents that the judgment find and establish that defendant has surrendered, relinquished and quit-claimed to plaintiff any right it may have acquired under said condemnation to enter upon plaintiff's land except upon the 100-foot strip.'
Plaintiff moved to strike division 2 of defendant's answer as immaterial and redundant matter which cannot be considered upon the appeal, matter which constitutes no defense to plaintiff's petition and because the rights acquired by defendant through the condemnation are fixed by statute and division 2 is in derogation of section 489.16, Code 1946. The trial court sustained this motion. Pursuant to permission granted by us under rule 332, Rules of Civl Procedure defendant has appealed from this ruling.
Code section 489.16 reads:
Plaintiff contends and defendant denies that under this statute defendant acquired by the condemnation a right of access to the 100-foot strip over the remainder of plaintiff's farm for the purposes stated in the statute. Defendant's position is that it acquired a right of access to its transmission line only over the condemned strip and not across any other part of the farm. In overruling defendant's motion to strike allegations from plaintiff's petition as to the nature of the right of access acquired by defendant the trial court obviously adopted plaintiff's interpretation of section 489.16. This (earlier) ruling on defendant's motion to strike is not challenged on this appeal. We therefore, assume, without deciding, such ruling is correct.
The question presented to us is whether defendant in its answer to plaintiff's petition upon the appeal from the assessment of damages may effectively surrender its right of access to the transmission line over the rest of plaintiff's farm.
The condemnation was instituted by defendant under the authority of Code Chapter 489, particularly section 489.14, and in the manner provided by chapter 472. Section 472.3 of chapter 472 provides that condemnation 'proceedings shall be instituted by a written application filed with the sheriff of the county in which the land * * * is located.' The application shall set forth a description of all property affected, 'The purpose for which the condemnation is sought' and other matters. The form of notice is prescribed by section 472.9. It shall state 'That such condemnation is sought for the following purpose: (Here clearly specify the purpose.)'
Defendant's application filed with the sheriff does not appear in the record. The notice signed by defendant by its attorneys states that it desires the condemnation of the 100-foot strip described with particularity and 'That such condemnation is sought for the following purpose: for the construction, maintenance and operation of an 161,000 volt transmission line together with the permanent and perpetual right of ingress and egress to and from said property for the purpose of maintaining, repairing, altering or removing the poles, structures or other equipment incident to the operation of said transmission line.'
At the time fixed in the notice the commission appointed by the sheriff appraised at $1100 the damages plaintiff wouls sustain by reason of the condemnation. See section 472.14. Plaintiff and later defendant appealed to the district court from the assessment so made. It was stated in oral argument that defendant deposited with the sheriff the amount assessed in favor of plaintiff, took possession of the condemned strip and constructed its transmission line. See section 472.25.
We entertain no doubt that defendant at the outset of the condemnation, by a suitable statement in the application filed with the sheriff and its notice to the landowner, could have so limited the rights to be acquired by it thereunder as to exclude any right of access to the condemned strip over the rest of the farm. While our statute makes no provision for such limitation, the authorities are fairly clear such a reservation in favor of the landowner may be made at the outset. Indianapolis & Cincinnati Traction Co. v. Wiles, 174 Ind. 236, 91 N.E. 161, 163, 729, and citations; In re Milwaukee Electric Ry. & Light Co., 182 Wis. 182, 196 N.W. 575, 579, and citations; Tyler v. Town of Hudson, 147 Mass. 609, 18 N.E. 582; St. Louis, K. & N. W. R. Co. v. Clark, 121 Mo. 169, 25 S.W. 192, 906, 26 L.R.A. 751 and Note; 1 Nichols on Eminent Domain, 2d Ed., section 225, page 691; 2 Lewis Eminent Domain, 3d Ed., section 712(481), pages 1247, 1248.
A limitation upon the rule just stated is that the condemnor may not leave any reservation of rights in the landowner that is incompatible with the use for which the land is condemned or impairs the condemnor's ability to render the public service for which the taking is made. But this limitation is not applicable here since the stricken portion of defendant's answer alleges it has other convenient means of access to the 100-foot strip. We understand a public highway affords such access.
Proprietary rights reserved to the owner of the fee are to be distinguished from mere unaccepted promises of the condemnor to do something in the future for the owner's benefit. As a rule the owner is under no obligation to accept such mere promissory stipulations. Louisville & N. R. Co. v. Western Union Tel. Co., 184 Ind. 531, 111 N.E. 802, Ann.Cas.1917C, 628 and Note 631; State v. Superior Court, 11 Wash.2d 545, 119 P.2d 694, 706; 29 C.J.S., Eminent Domain, § 155, page 1015; 18 Am.Jur., Eminent Domain, section 114, page 741.
Likewise mere permissive privileges to the landowner subject to revocation at will cannot be considered in reduction of damages. Moran v. Iowa State Highway Comm., 223 Iowa 936, 941, 274 N.W. 59; Kentucky-Tennessee Light & Power Co. v. Beard, 152 Tenn. 348, 277 S.W. 889, 892; 1 Nichols on Eminent Domain, 2d Ed., section 225, page 692; 29 C.J.S., Eminent Domain, § 143a, page 988.
That the condemnor has no present intention of exercising all the rights acquired or the probability that its use may be a limited one are not proper matters for consideration in fixing compensation since damages must be paid for the rights appropriated even though full use thereof may not be immediately contemplated. Klopp v. Chicago, M. & St. P. Railway Co., 142 Iowa 474, 480, 119 N.W. 373; Howe v. Inhabitants of Weymouth, 148 Mass. 605, 20 N.E. 316; 29 C.J.S., Eminent Domain, § 155, pages 1015, 1016.
Here, defendant's waiver of any right of access to the condemned strip over the rest of plaintiff's farm is not a mere unaccepted promise of future conduct nor a revocable privilege nor a mere statement of defendant's intention not to exercise such right of access. By the filing of division 2 of its answer and a provision in the judgment pursuant thereto defendant will be effectively prevented from the exercise of any right of ingress or egress over plaintiff's farm and plaintiff is fully protected in this regard.
Defendant at the commencement of the proceedings, by an appropriate reservation in its application and notice, should have limited its condemnation by renouncing any right of access to the 100-foot strip over the rest of plaintiff's farm. We think, however, defendant's failure in this respect is not fatal to its right to have this reservation in favor of plaintiff considered upon the appeal from the award of damages. We see no insuperable objection to the manner in which defendant has waived any right of access over the remainder of the property. The fundamental reason why reservations of this kind are permitted in condemnations applies here as fully as if such a limitation had been made at the outset of the proceedings. We therefore hold it was error to strike division 2 of defendant's answer.
Defendant did not acquire the fee to the 100-foot strip but only an easement therein which could be...
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