Powers v. City of Dubuque
| Decision Date | 07 April 1970 |
| Docket Number | No. 53877,53877 |
| Citation | 176 N.W.2d 135 |
| Court | Iowa Supreme Court |
| Parties | Philip POWERS and Martha Powers, Appellants, v. CITY OF DUBUQUE, Iowa, a Municipal Corporation, Appellee. |
Michael A. Stapleton, of Klauer, Stapleton, Ernst, Sprengelmeyer & Schrup, Dubuque, for appellants.
R. N. Russo, Dubuque, for appellee.
The appellants are husband and wife, and are the owners of a lot containing some 50 to 55 acres located in the westerly end of the city of Dubuque and within the city limits, having been annexed to the city by two separate annexation proceedings in 1952 and 1961.
In order to assist in visualizing the tract, an exhibit introduced as a part of the plaintiffs' case in the trial court, reduced in size, is set out here.
The lot in question is identified as 'Lot 1 of Powers Place', and lies generally southeasterly of the intersection of John F. Kennedy Road and Asbury Road, being bounded on the west by John F. Kennedy Road, a 4-lane limited access highway which intersects Asbury Road at the northerly tip of Lot 2 of Powers Place. Asbury Road runs in a generally northwesterly-southeasterly direction.
As is shown on the accompanying plat, Lot 2 of the subdivision of Powers Place is readily identifiable. It was sold by appellants in 1964 on a contract to a Dubuque bank. The remainder of the appellants' property upon which they reside is the acreage identified in the accompanying plat as Lot 1 of the subdivision of Powers Place. On or about February 14, 1966, appellee City of Dubuque instituted condemnation proceedings for the taking of a tract which is distinguishable on the accompanying plat, the same being a rectangular shaped lot abutting John F. Kennedy Road, having easterly-westerly dimensions of 197 feet and north-south dimensions of 165 feet, the intended use being for a fire station. The condemnation appraisers selected by the sheriff of Dubuque county assessed the appellants' damages for the partial taking in the amount of $13,200.00. Appeal was taken to the district court of Dubuque county, by appellants, and at the close of the plaintiffs' case the court sustained appellee's motion to direct verdict and subsequently overruled appellant's motion for a new trial. From such rulings the plaintiffs appeal. We affirm the trial court.
For many years the appellants utilized the area embraced in Lots 1 and 2 of the subdivision of Powers Place, along with other lands, in a farming operation, but in recent years because of their advanced age, physical disabilities and the encroachment of the city, have reduced or almost completely stopped their farming operations. The topography of the area is generally level from the northerly extremity of the property to a point roughly 50 feet south of the lot which is the subject of the condemnation proceedings here and then falls away or slopes to the south.
After the sale of the tract identified as Lot 2 of Powers Place to the bank, Lot 2 was rezoned for commercial use and after the annexations referred to above the balance of the Powers' property, Lot 1, was zoned for single family residential purposes. The record indicates a reasonable possibility of a change in zoning for at least a portion of the area embraced in Lot 1, specifically those portions which abut John F. Kennedy Road. Two sanitary sewers serve Lot 1, but they are available only for the northerly portion of the lot where the dwelling of the appellants is situated one sewer lies along Asbury Road and serves the appellants' dwelling; the other extends along John F. Kennedy Road and serves an area from the north to a point about 50 or 75 feet south of the south line of the fire station. The record further indicates that the absence of sanitary sewers serving the area has been a significant factor in the lack of development of appellants' lands.
In initiating their appeal in the district court, the appellants represented and alleged in their petition their ownership of the premises identified as Lot 1 of the subdivision of Powers Place, the proposed taking of the rectangular tract 165 feet by 197 feet in dimension abutting on the east side of John F. Kennedy Road from Lot 1, and that they had been damaged by the taking in the sum of $35,000.00. They alleged essentially a diminution of value of the remaining tract, specifying several elements of damage. In addition to the appellant Philip Powers, two other witnesses were called by the plaintiff, who testified with regard to claimed comparable sales in the general area of the appellants' property, and their opinions as to the highest and best use to which the property might reasonably be put. Neither the appellant Philip Powers nor his value witnesses ventured any opinion or sought to testify as to the value of the entire tract before the taking by the City or the value of the remainder thereafter. Counsel for the appellant, both by propounding direct questions to the value witnesses and by offer of proof made in the absence of the jury, attempted to establish a theory that the taking of the subject land and resultant damages to the appellant occasioned thereby, could be related only to the northerly portion of Lot 1, that is to say, the portion lying south of the south line of Lot 2 to a point proximate to the south line of the fire station property. He moved to amend his pleadings to conform to the proof in this regard, to which counsel for the appellee City objected, and the court overruled appellants' motion to so amend to conform to proof. No error is assigned by appellants from the court's ruling on the motion to conform to proof, but we observe that had the court sustained the motion, and had plaintiffs amended to conform the pleadings to the proof, no purpose would have been served, as the rule on measure of damages hereinafter discussed would still attend.
I. In their first assigned error the appellants urge that the trial court erred in dismissing the case at the close of plaintiffs' evidence on the basis that...
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Jones v. Iowa State Highway Commission
...of land immediately before and immediately after condemnation without regard to resultant benefit or betterment. Powers v. City of Dubuque, 176 N.W.2d 135, 138 (Iowa); Townsend v. Mid-America Pipeline Co., 168 N.W.2d 30, 33 VI. As previously revealed, the issue in a condemnation appeal is c......
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Twin-State Engineering & Chemical Co. v. Iowa State Highway Commission, TWIN-STATE
...Company, 168 N.W.2d 30, 33, (Iowa 1969); Bellew v. Iowa State Highway Commission, 171 N.W.2d 284, 289 (Iowa 1969); Powers v. City of Dubuque, 176 N.W.2d 135, 138 (Iowa 1970); Van Horn v. Iowa Public Service Company, 182 N.W.2d 365, 370--371 (Iowa 1970); Note, Contemporary Studies Project: N......
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Thompson v. Rozeboom
...trial, concluding that substantial justice has not been done, the basis for such ruling need not be reversible error. Powers v. City of Dubuque, 176 N.W.2d 135, 139 (Iowa). Rule 244(h), Rules of Civil Procedure, provides that a new trial may be granted when, to the prejudice of the moving p......
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Fitzgarrald v. City of Iowa City
...original tract. See Twin-State Eng'g & Chem. Co. v. Iowa State Highway Comm'n, 197 N.W.2d 575, 577-78 (Iowa 1972); Powers v. City of Dubuque, 176 N.W.2d 135, 138 (Iowa 1970). Thus, under state property law, we view the present interference as one in which the owner has suffered a diminution......