Primary Road No. Iowa 141, In re

• Decision Date: 15 October 1963
• Docket Number: No. FN-334,No. 50981,FN-334,50981
• Citation: 124 N.W.2d 141,255 Iowa 711
• Parties: In re PRIMARY ROAD NO. IOWA 141. In the Matter of the Condemnation of Certain Land by the lowa State Highway Commission for the use and benefit of the State of lowa in the improvement of the Primary Road No. lowa 141, west of and within the Town of Manning, lowa, located in Carroll County, ProjectWade MOHR and Thelma Mohr, husband and wife, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
• Court: Iowa Supreme Court

Page 141

124 N.W.2d 141

255 Iowa 711

In re PRIMARY ROAD NO. IOWA 141 In the Matter of the Condemnation of Certain Land by the lowa State Highway Commission for the use and benefit of the State of lowa in the improvement of the Primary Road No. lowa 141, west of and within the Town of Manning, lowa, located in Carroll County, Project No. FN-334 Wade MOHR and Thelma Mohr, husband and wife, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.

No. 50981.

Supreme Court of Iowa.

Oct. 15, 1963.

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 M. R. Tan Creti, Carroll, for appellees.

GARFIELD, Chief Justice.

Plaintiffs are husband and wife who own a virtually unimproved tract of about 14 1/2 acres in the southwest part of the town of Manning. At the time of the condemnation, July 11, 1961, the south side of the tract at its west end abutted the north side of east-west highway 141 for about 162 feet. Defendant state highway commission (herein called 'commission') condemned .16 of an acre of this frontage for the purpose of widening the highway. It also condemned .13 of an acre just south of the .16. The state had an easement over the .13 but not the legal title. It was, however, included within the then right of way of 141 just north of the center. The .13-acre was a strip 33 feet wide. The .16-acre north of the. 13-acre was 47 feet wide. The line between these two strips, along the old right of way line, was 162 feet long. Direct access to the highway was also condemned.

Commissioners appointed pursuant to section 472.6, Codes 1958, 1962, assessed the damages due plaintiffs at $125. Upon plaintiffs' appeal to the district court the jury there fixed the damages at $10,000. The commission's motion for new trial was overruled and it has appealed to us.

Only the east boundary of the tract is a straight (north-south) line. It abuts an alley 18 feet wide. The north and south boundaries, respectively, run generally eastwest. The west boundary runs diagonally northeast-southwest along the right of way of a line of the Chicago Great Western Railway. Roughly the eest two-thirds of the north line of the tract abuts the south side of Third Street which parallels highway 141. The shortest distance between Third Street and the old right of way of 141 is about 850 feet. A stream, the Nishnabotna River, enters the tract from the north and flows diagonally southwest. About one-third the tract lies west of the Nishnabotna, two-thirds to the east.

The accompanying plat, taken from an exhibit but reduced in size, may help visualize the tract.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There is no dwelling on the land. Some outbuildings are situated near the center of the east part along the alley. They are of no particular value. Ten concrete railroad piers stand near the south end of the remaining part west of the Nishnabotna. No business or industry has ever been conducted on the tract. In 1959 corn was planted on it. Some years it was used for pasture.

We will refer later to other facts, especially those bearing on the extent of plaintiffs' damages.

I. One of plaintiffs' witnesses who expressed an opinion as to the value of the tract before and after the taking of the .29-acre was asked on recross-examination if a cloud or encumbrance upon the title would affect the value in any way. The court sustained plaintiffs' objection of incompetent, irrelevant, immaterial and calling for a legal conclusion. The ruling is assigned as the first error. It is argued defendant was properly seeking to test the witness' qualifications.

At the time the question was asked there was no evidence of a cloud or encumbrance upon plaintiffs' title. It developed, however, that according to the long, involved metes-and-bounds description by which they held title, two points along the west boundary line failed to close or meet by 9.5 feet. Defendant's counsel advised the court they would 'connect this up' later.

We are not persuaded the ruling was an abuse of discretion. It is true considerable latitude is usually allowed in cross-examination of experts, including those who testify to property values. Also it is not necessary that the cross-examination be confined to facts established in the case. Storbeck v. Fridley, 240 Iowa 879, 883, 38 N.W.2d 163, 166, and citations.

The trial court has wide, though not unlimited, discretion in the matter of the extent of cross-examination. Iowa Development Co. v. State Highway Comm., 252 Iowa 978, 991, 108 N.W.2d 487, 495; Korf v. Fleming, 239 Iowa 501, 512, 32 N.W.2d 85, 92, 3 A.L.R.2d 270. Some of our decisions say, however, it is only after the right has been substantially and fairly exercised that its allowance becomes discretionary. Glassman v. Chicago, R. I. & P. R. Co., 166 Iowa 254, 260, 147 N.W. 757; Dean v. State, 211 Iowa 143, 152, 233 N.W. 36; Storbeck v. Fridley, supra.

If, as we hold in Division II hereof, plaintiffs' ownership of the tract was not properly a disputed issue in the case, it was not an abuse of discretion to exclude cross-examination on the effect of a cloud upon the title. 'The scope of cross-examination of a witness as to value is largely a matter within the discretion of the presiding justice. Generally speaking, a wide latitude is permitted, but it should not include irrelevant and immaterial matters.' 32 C.J.S. Evidence § 560a(2), page 373. See also Korf v. Fleming, supra; Wilson v. Fleming, 239 Iowa 718, 725-728, 31 N.W.2d 393, 397-8; City of Chicago v. Pridmore, 12 Ill.2d 447, 147 N.W.2d 54, 57.

II. After plaintiffs rested their case and defendant offered the testimony of one of its engineers, it moved to dismiss the action on the ground plaintiffs failed to prove title to the tract in question inasmuch as the boundaries described in the deed to plaintiffs of the west part of the tract failed to close and the deed conveyed nothing. Overruling the motion is assigned as error.

The jury was instructed plaintiffs were the owners of the tract in question. Defendant objected to the instruction on the ground asserted in support of the motion to dismiss just referred to. The claimed errors in the instruction and in voerruling the motion to dismiss are argued in one division.

When the commission instituted the condemnation proceeding out of which plaintiffs' appeal to the district court arose it was required to file its application with the sheriff and to set forth therein in part: '1. A description of all the property in the county, affected or sought to be condemned, * * *.

'2. A plat showing the location of the right of way or other property sought to be condemned with references to such description.

'3. The names of all record owners of the different tracts of land sought to be condemned, or otherwise affected by such proceedings, and of all record holders of liens and encumbrances on such lands; * * *.' Section 472.3, Codes 1958, 1962, I.C.A.

The report of the condemnation comnissioners indicates the commission's application to the sheriff named plaintiff Wade Mohr, owner, and plaintiff Thelma Mohr, spouse, as those affected by the proceeding. The Chicago & Northwestern Railway Company, from which plaintiffs Railway Company, from which plaintiffs acquired as an affected party. The description referred to is evidently the one in the deed from 'the Northwestern' to Wade Mohr. Failure of the west boundary line to close, as above described, is at a point on the line about 185 feet north of the strip condemned.

Since the commission's application names plaintiffs as owners of the tract, we think it was not error to overrule the motion to dismiss on the ground asserted or to instruct the jury plaintiffs were the owners. We hold this is true even though the commission's answer to plaintiffs' petition contains a bare denial they own the land described. If plaintiffs are not the true owners of the tract from which the condemned strip is taken, the commission should have proceeded against such owners. The title records are of course open to the commission and it determines the parties against whom to proceed.

Tracy v. Mt. Pleasant, 165 Iowa 435, 453, 146 N.W. 78, 85, a condemnation appeal, holds 'It was unnecessary to prove the title to the land in controversy, for the city alleged that it belonged to the plaintiffs, and the owners merely took it at its words.'

29 C.J.S. Eminent Domain § 266b, page 1239, states: 'If the petitioner recognizes the person in possession of the land as its owner by instituting against him a condemnation proceeding, no issue is raised as to the title to the land, and such person will not be required on the trial to prove his title, since the petitioner will not be permitted to deny it.'

Precedents which support the C.J.S. text include United States v. Chicago, B. & Q. R. Co., 7th Cir., Wis., 90 F.2d 161, 171, cert. den. 302 U.S. 714, 58 S.Ct. 33, 82 L.Ed. 551; Muskingum Watershed C. Dist. v. Fry, 62 Ohio App. 323, 23 N.W.2d 962, 963; Skalicky v. Friendship E. L. & P. Co., 193 Wis. 395, 214 N.W. 388, 390, and citation. The case first cited is quite in point. It holds the owner in a proceeding of this kind is not required to prove merchantable title.

See also as supporting the conclusion reached in this division Tenney Telephone Co. v. United States, 7th Cir., Wis., 82 F.2d 788, 790; City of Chicago v. Pridmore, supra, 12 Ill.2d 447, 147 N.E.2d 54, 57; Ketchum Coal Co. v. District Court, 48 Utah 342, 159 P. 737, 4 A.L.R. 619, 629; Mills on Eminent Domain, Second Ed., section 65. The Tenney Telephone Co. case points out such a contention as the commission makes here amounts to this: if the condemnee fails to prove his title, the condemnor may take the part condemned without compensation.

We do not regard Costello v. Burke, 63 Iowa 361, 363-364, 19 N.W. 247, or Waltemeyer v. Wisconsin, Iowa & Nebraska...