Primary Road No. Iowa 141, In re

• Citation: 256 Iowa 380,127 N.W.2d 566
• Decision Date: 08 April 1964
• Docket Number: No. I,No. 50997,No. FN-334,I,FN-334,50997
• Parties: In re PRIMARY ROAD NO. IOWA 141. In the Matter of Condemnation of Certain Land by the Iowa State Highway Commission for the Use and Benefit of the State of Iowa in the Improvement of Primary Roadowa 141, West of and within they Town of Manning, Iowa, located in Carroll County, ProjectMary Margaret KUKER, James Kuker and Mary Margaret Kuker, Guardian of James Kuker Ginette Kuker and Jacob Kuker, Jr., Minors, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
• Court: Iowa Supreme Court

Page 566

127 N.W.2d 566

256 Iowa 380

In re PRIMARY ROAD NO. IOWA 141 In the Matter of Condemnation of Certain Land by the Iowa State Highway Commission for the Use and Benefit of the State of Iowa in the Improvement of Primary Road No. Iowa 141, West of and within they Town of Manning, Iowa, located in Carroll County, Project No. FN-334 Mary Margaret KUKER, James Kuker and Mary Margaret Kuker, Guardian of James Kuker Ginette Kuker and Jacob Kuker, Jr., Minors, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.

No. 50997.

Supreme Court of Iowa.

April 8, 1964.

Evan Hultman, Atty. Gen., C. J. Lyman, Asst. Atty. Gen., A. Jackson Allen, State Counsel and Minnich & Minnich, Carroll, for appellant.

Clark & Clark, Ames, and Leighton A. Wederath, Carroll, for appellees.

MOORE, Justice.

This case involving condemnation of part of plaintiffs' commercial property for improvement of highway No. 141 along the south side of Manning is now before us for the second time. In Kuker v. Iowa State Highway Commission, 253 Iowa 1130, 114 N.W.2d 290 (April 3, 1963), we reversed the lower court's ruling striking plaintiffs' allegations of denial of reasonable access and loss of property interest in filling station pumps and ramps which improvements plaintiffs alleged were made under a license from the town of Manning. It is now before us on defendant's appeal following jury trial, an award of $150 and the trial court's sustaining of plaintiffs' motion for a new trial.

July 11, 1961 defendant (herein called 'commission'), incident to a highway improvement project, condemned a portion of plaintiffs' land and all rights of direct access except two commercial entrances. The improvement had been completed before the trial of this case. It consisted of some change of grade for a bridge approach and the widening of highway 141 from two to four lanes.

Plaintiffs' property, which they acquired upon the death of Jacob Kuker, their husband and father, on November 20, 1957 abuts highway 141 in Manning for 383 feet along its southern boundary. At its widest point it is 184 feet north and south.

Jacob Kuker acquired this property in the early 1930s and soon began constructing buildings thereon. First a filling station was erected to which a garage was later added. The station was located about the center of the south line of the property, approximately 10 feet from the north right-of-way line. A concrete pump stand and deriveway were placed south of the station and used to serve automobiles on both sides of the pumps. A concrete drive from the filling station extended into the right of way approximately 15 feet.

Next a frame building was built just north of the highway and near the west edge of the Kuker property. It was used as an office and storage building. It was also referred to as the bulk plant. Back of this building large gasoline storage tanks were erected near which later was built a pump house.

The next improvement was an L-shaped building the south extension of which was located east of the filling station and near the east edge of the property. It was used as a cafe. The north and west part of this building was used as two motel units. Later four more motel units were added to the west and partly back of the filling station. Included in the 'L' was a two-story structure used as a dining room for the cafe, the motel office and living quarters for the Kukers consisting of five bedrooms, a living room and kitchen.

These several businesses were operated by the Kukers or lessees for many years prior to the condemnation proceedings. Their access was unlimited along 141. It was so used except along the property directly south of the bulk plant. Customers, including those driving large trucks, drove off the pavement to the cafe and filling station at their convenience.

By the condemnation proceedings the commission acquired a triangular piece of ground at the southwest corner of plaintiffs' property. It was 33.9 feet along the highway, 18.22 feet on the western boundary and approximately 35 feet to close the triangle. It also took a temporary easement for the purpose of sloping and grading east and north of the triangular piece which was permanently taken.

The commission also condemned all rights to direct access between the highway and plaintiffs' property except two commercial entrances. Along the highway west of the filling station and east of the bulk plant an access 45 feet in width was allowed. The other was located east of the filling station and west of the cafe. It was 35 feet long.

In making the improvement the pavement was extended the entire width of the right of way. It ran up to and along the entire length of plaintiffs' property and was curbed. A drainage flume was built in front of the station. The concrete driveway and ramp lying south of the north highway line which had been used as part of the filling station operation for over 20 years were removed. Cars could only be serviced on the north side of the pumps. The obvious problems and difficulties resulting therefrom are detailed by the evidence. Testimony of plaintiffs' witnesses that semi trucks had difficulty getting to the bulk plant, truck customers were unable to drive close to the cafe and customer traffic congestion and substantial loss of business resulted is undenied.

Plaintiffs' witnesses testified as to the fair and reasonable value of the plaintiffs' property immediately before and after condemnation. The difference of such values is as follows:

Witness Before After Difference

Mary Margaret Kuker (1) 60,000 30,000 30,000

John Shaner (2) 63,000 25,000 38,000

Claus H. Bunz (3) 65,000 25,000 40,000

Dr. Robert R. Dappen (4) 85,000 32,500 52,500

Merle Stoelk (5) 75,000 30,000 45,000

W. H. Rust (6) 50,000 25,000 25,000

All except Mary Margaret Kuker, one of the plaintiffs, gave opinions after stating sufficient knowledge and experience as landowners or real estate brokers. No claim is made attacking their qualifications to testify as experts.

The commission used two valuation witnesses, Frank Hoffmann, a Carroll realtor, and Ralph McCord, Carroll building and loan association employee and appraiser. They testified as follows:

Witness Before After Difference

Frank Hoffmann 55,000 54,850 150

Ralph McCord 58,000 57,900 100 Each testified he considered access to the property was not impaired by the improvement and that plaintiffs had no loss resulting from the removal of the concrete ramp and driveway at the filling station. Each based his opinion only on the taking of the triangular piece of plaintiffs' property.

The trial court's ruling setting aside the $150 jury award and ordering a new trial states several reasons for doing so. They include, (1) the court's opinion instruction 9 in reference to the commission's right to limit access and instruction 17 as to the town's right by ordinance to license use of the street were not sufficiently clear and may have misled the jury, (2) the verdict of $150 shocked the conscience of the court and was wholly inadequate, (3) the jury deliberated only about one and a half hours, (4) newspaper, radio and television publicity referring to statements before the legislature calling condemnation proceedings a 'lawyer's bonanza' may have come to the attention of the jurors, (5) the court's conclusion that substantial justice had not been done.

In our recent case, Larew v. Iowa State Highway Commission, 254 Iowa 1089, 120 N.W.2d 462, we cite and review our prior holdings which establish several general principles.

It was the right and duty of the trial court to scan the course of the trial and the verdict returned. If for any reason supported by the record he concluded justice had not been done he had the unquestioned right to order a new trial, even though such reason did not in itself amount to reversible error.

A new trial should be granted when the trial court feels the verdict fails to administer substantial justice or it appears the jury has failed to respond truly to the real merits of the controversy.

The trial court has wide discretion in granting a new trial with which we interfere reluctantly and only on a clear showing of abuse.

The commission makes no assignment of error or argument claiming the reasons cited by the trial court for granting a new trial are unsupported by the record. Neither is it claimed the trial court...