Race v. Iowa Elec. Light & Power Co.
| Decision Date | 06 April 1965 |
| Docket Number | No. 51531,51531 |
| Parties | Frank B. RACE and Margaret Armstrong Race, Appellants, v. IOWA ELECTRIC LIGHT AND POWER COMPANY, Appellee. |
| Court | Iowa Supreme Court |
Allen & Fishel, Marion, and Remley & Heiserman, Anamosa, for appellants.
John F. Gaston, Jr., Ted P. Lewis and Lynch, Dallas, Smith & Harman, Cedar Rapids, for appellee.
Plaintiffs are landowners. Defendant, Power Company, has obtained a franchise from the Iowa State Commerce Commission, and condemned certain of plaintiffs' lands for an electric transmission line. From the award of the sheriff's jury plaintiffs appealed to the district court.
Division II of plaintiffs' petition alleges in substance chapter 489, Code of Iowa 1958, I.C.A., under which the commission purported to act, is unconstitutional, there was no showing or finding of a public necessity for the taking of plaintiffs' land, and in fact the taking of plaintiffs' land was not necessary, that necessity was not litigated before the commerce commission, that defendant has taken possession of plaintiffs' land and is a trespasser. They prayed the franchise and all proceedings be set aside, defendant be ordered to remove its lines and poles and vacate the premises, and they have damages for trespass.
On motion of defendant, the district court dismissed Division II, plaintiffs appeal.
I. Plaintiffs first urge for reversal chapter 489, Code of Iowa 1958, I.C.A., (applicable here, the hearing before the commission was January 20, 1962,) as it then stood is constitutional as denying due process as a matter of law in that it purports to authorize a private person to condemn private property for a private purpose in that a showing of public necessity or the necessity of taking the particular route is not required and a finding of necessity by the commission is not required.
It is settled private property may only be taken for a public use. There must be a public necessity for such use. Only property necessary for the public use may be taken. This is the import of Article I, Sec. 18, Iowa Constitution, I.C.A., 'Private property shall not be taken for public use without just compensation * * *.'
It is also settled the transmission of electric current for distribution to the public is a public use for which the power of eminent domain may be exercised. Vittetoe v. Iowa Southern Utilities Company, 255 Iowa 805, 809, 123 N.W.2d 878.
Plaintiffs' principal assault is on section 489.5. It provides in pertinent part, for filing objections and, * * *'
Section 489.14 provides one who has secured a franchise, '* * *, shall thereupon be vested with the right of eminent domain to such extent as may be necessary and as prescribed and approved by the * * * commission, * * *.'
Plaintiffs urge section 489.5 is unconstitutional as it permits the taking of private property for a private purpose in that there is no requirement public necessity be shown, that petitioner establish the necessity of the proposed line over a particular route, or that the commission make a finding of necessity in such particulars.
Section 489.5 when examined in light of the other sections of chapter 489 is not vulnerable to the attack of plaintiffs. Under section 489.5 the commission may cause an engineer to examine the proposed route. That was done in this case. The commission is directed to consider the petition and any objections and hear such evidence as will aid it in determining the propriety of granting the franchise. This means the commission must consider the allegations of the petition, its sufficiency in complying with sections 489.2 and 489.3, the evidence in support of it, the objections and evidence in support of such before it would be proper to grant a franchise. Section 489.2 provides for filing of a petition asking for a franchise to erect a transmission line, * * * necessary for conducting electric current for light, heat, or power * * *, and to acquire necessary interest[s] in real estate for such purposes.'
Section 489.3 requires the petition to set forth the name and principal place of business of petitioner, the route of the proposed line in detail, a general description of the land over which the line is to pass, general specifications as to materials and manner of construction and maximum voltage to be carried. Section 489.4 requires the commission to fix date for hearing and cause a notice before to be published.
It is apparent, if the above allegations are in the petition and evidence offered in support of them, a finding by the commission it is proper to grant a franchise over a particular route includes a finding of a public use, public necessity for the use, and the specified real estate is necessary for such purpose. It is also true that the petitioner has the burden of proof on all of these required allegations. A party having the affirmative of a proposition is always required to prove it.
At least one of the purposes of providing for objections is to allow those interested to attack both the petition and the petitioner's evidence in the particulars required to be alleged. It is not to raise the issue of the value of the land.
The commission cannot make a determination that it is proper to grant a franchise without considering and passing on the matters required by chapter 489. It they fail to consider these matters the franchise is invalid. That was the reason for decision in Vittetoe v. Iowa Southern Utilities Company, 255 Iowa 805, 123 N.W.2d 878.
Section 489.14 provides, in pertinent part, the one having obtained the franchise, '* * *, shall thereupon be vested with the right of eminent domain to such extent as may be necessary and as prescribed and approved by the * * * commission, * * *.'
The import thereof is the right of eminent domain is limited to the extent necessary as found by the commission and prescribed and approved by it. Determination of the extent necessary is not left for future determination. Under section 489.5 the commission is required to make that determination. It is true the condemnor may elect to take less. DePenning v. Iowa Power & Light Co., 239 Iowa 950, 956-957, 33 N.W.2d 503, 507, 5 A.L.R.2d 716.
It follows chapter 489 is not unconstitutional for the reasons urged.
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