Primary Road 1-80, In re

• Decision Date: 11 February 1964
• Docket Number: No. 51165,51165
• Citation: 126 N.W.2d 311,256 Iowa 43
• Parties: In the Matter of the Condemnation of Certain Land by the State Highway Commission for the Use and Benefit of PRIMARY ROAD 1-80, North of Iowa City, Iowa. Kenneth I. BELLE and Laurence B. Short, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
• Court: Iowa Supreme Court

Page 311

126 N.W.2d 311

256 Iowa 43

In the Matter of the Condemnation of Certain Land by the State Highway Commission for the Use and Benefit of PRIMARY ROAD 1-80, North of Iowa City, Iowa Kenneth I. BELLE and Laurence B. Short, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.

No. 51165.

Supreme Court of Iowa.

Feb. 11, 1964.

Evan Hultman, Atty. Gen. of Iowa, Des Moines, C. J. Lyman, Sp. Asst. Atty. Gen., Ames, Henry M. Keyes, State Counsel, Iowa State Highway Commission, Ames, and William L. Meardon, Iowa City, for appellant.

W. Lawrence Oliver, Des Moines, Messer & Cahill and Jerry L. Lovelace, Iowa City, for appellees.

GARFIELD, Chief Justice.

Plaintiffs Kenneth I. Belle and Laurence B. Short appealed to the district court from the assessment of damages for the taking by eminent domain of part of their property and appurtenances thereto for highway improvement purposes. From the award following trial by jury defendant Iowa State Highway Commission has appealed to us.

Plaintiffs were, prior to condemnation, the owners of 33.9 acres located just west of old highway 218 and north of Foster Road in and adjacent to Iowa City. Five acres are within the corporate limits of Iowa City and are zoned for residential purposes, R-1A. The remainder just beyond the corporate limits is zoned suburban residential under county zoning.

The evidence indicated without substantial controversy that the best use of the area would be for homes in the higher priced bracket. Utilities including water, sewer, gas and electricity were available. The property had been surveyed and plats prepared providing for 53 lots with convenient access to each. A driveway had been built through part of the area to a newly constructed home. From existing streets and highways there was convenient access to the area. The plats had in part been approved by the city planning commission but had not been officially filed and approved as an addition to Iowa City.

In connection with the construction of Interstate Highway #80 north of Iowa City the defendant commission declared North Dubuque Street south of the interstate to be a limited access highwat preventing access thereto. Plaintiffs' property abuts Dubuque Street on the east. As a substitute and to provide access to property otherwise isolated the commission condemned for the construction of an access road approximately five acres extending through plaintiffs' property leaving strips on each side. Also condemned were all rights of direct access to present Dubuque Street and all rights to the Dubuque Street Relocation. Additional land for temporary (until November 30, 1964) easement rights was appropriated.

The taking amounted to 14.8% of plaintiffs' property and included approximately 10 of the lots in the proposed plat plus appurtenances and access affecting the remainder.

Plaintiffs' witnesses included an engineer, a contractor and witnesses as to values.

Plaintiffs' witnesses as to values before and after condemnation, after qualification, stated their opinions. The measure of damage computed therefrom ranged from $31,000 to $44,750. Defendant-appellant's compilation of figures set out in brief and argument is not in accord with the record. In arriving at their opinions the witnesses said they had compared and considered sale prices of other properties but did not state the sale price of other properties.

Defendant called three witnesses, one of the commission engineers and two valuation witnesses.

The valuation witnesses, after qualification, stated their opinions as to before and after values. The measure of damage computed therefrom ranged from $11,500 to $12,000. The jury returned a verdict in the sum of $27,500.

Defendant's valuation witnesses, in addition to stating their opinions, testified as to other properties, characteristics, sale prices and comparabilities.

Defendant made timely objection to the court's instruction relative to loss of access and failure to instruct specifically as to comparable sales.

Defendant's first claimed error relied on for reversal is failure to instruct the jury relative to the proper consideration of evidence of comparable sales.

I. The question of comparable sales has been before us in recent cases. Apparently all of the problems incident thereto have not been resolved. Since the decision in Redfield v. Iowa State Highway Commission, 251 Iowa 332, 99 N.W.2d 413, 85 A.L.R.2d 96, it has been the rule that evidence of such sales might be received as substantive evidence as to the value of the property being taken. Prior thereto it had been the rule that testimony of experts as to the sale prices of similar properties in the vicinity might be received on cross-examination to test the knowledge and competency of such experts, and the weight and value of their opinions. Such testimony, however, could not be considered as substantive evidence. When such testimony was received for a certain purpose only it was the duty of the court by timely admonishment or instruction to tell the jury the limitation. When there was a request for an instruction as to the limited purpose for which such testimony was received and that it should not be considered as substantive evidence refusal to so instruct was error. Lehman v. Iowa State Highway Commission, 251 Iowa 77, 86, 87, 99 N.W.2d 404. Such an instruction was necessary for the purpose of limitation.

Such is no longer the law. Now that testimony as to comparable sales is admissible as substantive evidence a limiting instruction is no longer proper. If the sales are comparable the evidence is admissible without restriction. It goes to the value of the property. Like other evidence it is for the jury to determine its weight and credit.

II. In Iowa Development Company v. Iowa State Highway Commission, 252 Iowa 978, 108 N.W.2d 487 comparable sales were considered at length. We said:

'Other similar sales need not be identical but must have a resemblance in order to be shown in evidence. Size, use, location and character of the land and time, mode and nature of the sale all have a bearing on the admissibility of such evidence.'

That case was tried to the court without a jury and what was said therein referred to the admissibility of evidence and not to the propriety or necessity of a jury instruction.

In the case at bar defendant offered testimony as to sale prices of other tracts claimed comparable. The per acre sale prices were mentioned several times. Plaintiffs vigorously objected but were overruled. Plaintiffs have not appealed. There were situation differences including loss of access and the building of a new road through the middle of plaintiffs' property so the per acre value of comparable land was of lessened probative value in determining the measure of damage. There was enough similarity in the properties, however, so that the admission of the evidence was within the discretion of the court. We mention this only to show the premise from which our first serious problem evolves.

It should be kept in mind that evidence of comparable sales is germane to the question of value before condemnation.

The admissibility of the evidence is for the court. The extent of the comparability and the weight and credit to be given the evidence is then for the jury. Defendant argues that evidence of comparable sales is of high probative quality. That is true but it is not for the court to so instruct the jury.

Knowledge of a witness of other sales may be and frequently is a foundation for opinion testimony, but evidence of actual sales of comparable property is now substantive evidence as distinguished from opinion testimony. It frequently happens, as it did here, that opinion testimony and evidence of comparable sales comes from the same witness. Evidence of comparable sales may be used to test the qualification of an opinion witness and also as substantive evidence. The difference between opinion testimony and substantive evidence is a proper subject for a jury instruction.

III. In Wicks v. Iowa State Highway Commission, 254 Iowa 998, 119 N.W.2d 781 (decided February 12, 1963, one month after the submission of the instant case to the jury) we held that the giving of an instruction was improper where there was no competent evidence of comparable sales. The instruction as given in that case was quoted and we said: 'The error was not in the wording of the instruction but in the assumption that there was evidence of sales of similar properties. The giving of the instruction when there was no evidence in the record relative to comparable sales opened the door to unwarranted speculation by the jury * * *.'

The Wicks case holds that the giving of an instruction without supporting evidence was error. Neither the propriety nor necessity of such an instruction when there is supporting evidence was involved.

We now hold that when there is supporting evidence such an instruction is proper. This is true whether the evidence is offered by condemnor or condemnee.

IV. The trial court's instruction #8 was as follows:

'You are instructed that in arriving at your verdict in this case you should determine the value of this property in the light of the testimony given from the witness stand. You are not authorized to arbitrarily disregard the testimony of any witness. Certain witnesses have testified in this case as to values of the property in question. You are instructed that in weighing the testimony of these witnesses who have given their opinions as to such values, you are permitted to weigh and judge the soundness of opinions thus expressed by your own judgment, in the light of your own experience and knowledge in common with mankind in general, with respect to such matters. Give to the opinion of each witness on values such weight as you determine it entitled to, or none if you believe it entitled to none. Your verdict must be based upon the testimony, and not upon your own estimate of the value.'

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