Primary Road No. Iowa 141, In re

• Decision Date: 03 April 1962
• Docket Number: No. I,No. FN-334,No. 50611,I,FN-334,50611
• Citation: 114 N.W.2d 290,253 Iowa 1130
• Parties: In re PRIMARY ROAD NO. IOWA 141. In the Matter of the 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 the town of Manning, Iowa, Iocated in Carroll County, ProjectMary Margaret KUKER, James Kuker, and Mary Margaret Kuker, Guardian of James Kuker, Ginette Kuker and Jacob Kuker, Jr., Minors, Appellants, v. IOWA STATE HIGHWAY COMMISSION, Appellee.
• Court: Iowa Supreme Court

Page 290

114 N.W.2d 290

253 Iowa 1130

In re PRIMARY ROAD NO. IOWA 141 In the Matter of the 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 the town of Manning, Iowa, Iocated 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, Appellants, v. IOWA STATE HIGHWAY COMMISSION, Appellee.

No. 50611.

Supreme Court of Iowa.

April 3, 1962.

Rehearing Denied June 12, 1962.

Erwin H. Hansen, Manning, and Leighton A. Wederath, Carroll, for appellants.

Evan Hultman, Atty. Gen., Des Moines, C. J. Lyman, Asst. Atty. Gen., and A. Jackson Allen, State Counsel, Iowa State Highway Commission, Ames, and Minnich & Minnich, Carroll, for appellee.

LARSON, Justice.

Involved in this appeal is the correctness of the trial court's ruling sustaining defendant's motion to strike parts of three paragraphs of plaintiffs' petition. An interlocutory appeal was granted in accordance with R.C.P. 332, 58 I.C.A.

In June of 1961 defendant commenced proceedings to condemn, for highway purposes, certain real property of plaintiffs in Carroll County, Iowa, which abutted Primary Road No. 141 for 383 feet on the north side thereof. Being dissatisfied with the award of the sheriff's jury, plaintiffs appealed to the district court. Their petition, among other things, alleged the real property was located within the town of Manning, that it was used for commercial and business purposes, that a cafe, a motel, a filling station, and a bulk oil station were located thereon, that under the Iowa State Highway Commission's highway improvement program a strip of plaintiffs' land abutting the road was being taken, that access to their lands was being limited to only two commercial entrances, one 35 feet wide and the other 45 feet wide, that authorized improvements made by them on the street were destroyed, and that the loss in value of their property due to the taking was $30,000.

Defendant moved to strike part of paragraph 6 of plaintiffs' petition which stated: 'and that the town of Manning, Carroll County, Iowa, by license or easement under the provisions of Ordinance No. 115, granted certain rights and uses into the street and highway located to he south of the above and foregoing real estate, and attached hereto and made a part hereof, marked Exhibit 'B', is a copy of said ordinance, and the plaintiffs were given the use thereof and had placed filling station pumps, concrete ramps and approaches and driveways to the various businesses located upon the above and foregoing real estate owned by these plaintiffs' for the reason 'that the same is incompetent, irrelevant and immaterial, a pleading of evidentiary matters, and not a proper statement of fact; and for the further reasons that the allegations in regard to the purported ordinance granting a license to the plaintiffs pleads an improper conclusion in that such ordinance does not nor can it create a property right in the public highway for the benefit of any private party.'

The trial court sustained the motion to strike in these words: 'The defendant's motion to strike in paragraph 1 of Division I is sustained.'

In paragraph 2 of its motion to strike sub-paragraph B of paragraph 8 of plaintiffs' petition providing, 'Damage thereby by reason of the taking and appropriation of plaintiffs' right of access, ingress and egress to and from the public highway to the South, thereby destroying the use of said premises for business and commercial purposes, for which they are now used and are readily adaptable', defendant stated: 'This defendant moves that sub-paragraph B of paragraph 8 of plaintiffs' petition be stricken for the reason that the same is an improper conclusion and for the further reason that it is inconsistent with paragraph 3 of plaintiffs' petition, which states in effect that two commercial entrances are reserved to plaintiffs' property.' The trial court sustained the motion in these words: 'The defendant's motion to strike in paragraph 2 of Division I is sustained.'

Defendant also moved to strike subparagraphs C and F of paragraph 8 of plaintiffs' petition 'for the reason that the same are incompetent, irrelevant and immaterial and for the further reason that plaintiffs have made no allegations of property rights in the right of way of public Highway No. 141.' Sub-paragraph C of paragraph 8 provides, 'Damage thereto and to the use made of said premises and for which they are readily adaptable by reason of the taking and appropriation in fee simple of the property rights of plaintiffs, under the provisions of Section 5, Chapter 148, Acts of the 56th General Assembly of Iowa, thereby severing plaintiffs remaining property from that portion now occupied by the public highway to the South and over which defendant possesses only an easement.' Sub-paragraph F of paragraph 8 provides, 'The taking of the concrete ramps, pump stands and concrete driveways owned by the plaintiffs located in the street to the south and upon Highway No. 141.' The trial court sustained the motion to strike in these words: 'The defendant's motion to strike in paragraph 3 of Division I is sustained.'

I. Appellants contend, with considerable merit, that the trial court erred in sustaining generally appellee's motion to strike, when Rule 118 of our Rules of Civil Procedure clearly requires a separate ruling on each of the grounds set forth in appellee's motion to strike. This is perhaps a fine example of why such a rule was established. Rule 118, R.C.P., provides in simple clear language, 'A motion, or other matter involving separate grounds or parts, shall be disposed of by separate ruling on each and not sustained generally.' We said only recently in Mooney v. Negle, 251 Iowa 1052, 103 N.W.2d 76, that the obvious purpose of Rule 118 was to avoid the necessity of an appellant argument upon each and every ground of the motion which has been sustained generally, and to make clear to all parties and especially this court just what grounds of the motion are sustained. While appellants here try to argue each ground of the motion, we are not so disposed and will deal summarily with most of them. In this connection we remind counsel the only functions of a pleading are to put the other party on notice of what the pleader intends to prove at the trial and define the issues. This the plaintiffs have done and in our judgment none of the grounds of the motion should have been sustained.

II. Rule 113, R.C.P., provides: 'Improper or unnecessary matter in a pleading may be stricken out on motion of the adverse party.' It is pointed out in Cook's Revised Edition of Iowa Rules of Civil Procedure, page 736, that a motion to strike must be cautiously granted and will be denied if there is any question as to the validity of the pleading. This is true, it said, because such striking out disposes of the pleader's case in a very summary way and may do him an injustice. We think, therefore, that a motion to strike certain paragraphs in a petition should be granted only when the allegations thereof have no possible relation to the controversy, and in case of doubt as to whether under any contingency the matter may raise a material issue, the trial court should deny the motion. Evans v. Herbranson, 241 Iowa 268, 278, 41 N.W.2d 113, 15 A.L.R.2d 925, and citations; Samuel Goldwyn, Inc. v. United Artists Corp., D.C.N.Y.1940, 35 F.Supp. 633. It is true the trial court has some discretion in these matters, and we have often said to constitute a proper and effective pleading, a conclusion stated must be based upon proper and pertinent related facts. Hutchinson v. Des Moines Housing Corp., 248 Iowa 1121, 1126, 84 N.W.2d 10, and citations. The better rule seems to be that on such a motion the court should merely determine whether there are ultimate issues to be tried, and should not try the issues at that time.

Here the facts pleaded were quite sufficient to apprise the Highway Commission of the nature of the proof. Often in a pleading the statement of relevant facts involves a conclusion of fact, and properly so in order to avoid pleading evidential matter. Obviously, a conclusion based upon facts stated is not objectionable. The facts pleaded here were ample to show what was being claimed for them. As pointed out by appellants, their petition avers (1) that their property being condemned borders on a street in Manning, Iowa, which is also a state highway; (2) that upon this property are four separate and distinct business establishments; (3) that pursuant to a license issued under due authority, they placed upon the city street some improvements which were used in conjunction with the businesses established upon the abutting property; and (4) that their property in the form of proper access and a licensed use of connecting land were being taken or destroyed by defendant's action. Under the facts related, the conclusions pleaded were permissible. Defendant was put on notice of what plaintiffs intended to prove and the issues were sufficiently defined. The matters pleaded obviously had a relationship to the controversy.

If reasonable access is not left plaintiffs, and if their licensed use of the street is a legally recognized right, it cannot be said the stricken allegations here have no possible relation to the controversy, i. e. the difference in value of plaintiffs' property before and after the taking. Any doubt as to whether less than reasonable access remained or as to whether appellants had any right to the use of the street in Manning abutting their property which must be condemned could not be fairly resolved by such a ruling.

III. It appears to us the only two propositions of any consequence raised by these motions, which necessarily admit well-pleaded facts, are (1) that the petition...