Randell v. Iowa State Highway Comm'n

• Decision Date: 08 March 1932
• Docket Number: No. 41064.,41064.
• Citation: 214 Iowa 1,241 N.W. 685
• Parties: RANDELL v. IOWA STATE HIGHWAY COMMISSION.
• Court: Iowa Supreme Court

214 Iowa 1

241 N.W. 685

RANDELL

v.IOWA STATE HIGHWAY COMMISSION.

No. 41064.

Supreme Court of Iowa.

March 8, 1932.

Appeal from District Court, Mahaska County; E. W. Dingwell, Judge.

This was a proceeding by the plaintiff to recover as against the defendant, from the funds available therefor, damages for the condemnation of a highway through the latter's land. The cause was submitted to a jury, which returned a verdict for the plaintiff and assessed the amount of his recovery at $1,450. Thereafter, judgment on the verdict for $1,450, together with interest aggregating $181.25, was entered as by law required. To that judgment, the defendant duly excepted, and from it later appealed.

Reversed.John Fletcher, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and Devitt, Eichhorn & Devitt, of Oskaloosa, for appellant.

T. J. Bray, of Oskaloosa, for appellee.

KINDIG, J.

S. A. Randell, the plaintiff appellee, in 1926 purchased a farm in Mahaska county, consisting of 147.91 acres. This land was bought by the appellee at a referee's sale for $145 per acre. When purchased, the land was divided by railroads and highways in such a way as to constitute six separate and distinct irregular parts.

Thereafter, on September 6, 1928, the defendant appellant, Iowa state highway commission, filed an application for the appointment of a commission to condemn a strip of appellee's land containing 3.1 acres lying southwest of, adjacent to, and parallel with the Chicago, Burlington & Quincy Railroad Company right of way. Accordingly the commission was appointed, and on September 19 thereafter it condemned the aforesaid strip of land for highway purposes, and assessed appellee's damages, because of the condemnation, at $830.50.

An appeal was taken by the appellee from that finding to the district court, which resulted in the record now under consideration. It is claimed by the appellee that his land was damaged by the condemnation to the extent of $4,600. So far as the present controversy is concerned, that damage may be classified into the following items: First, land actually taken; second, depreciation to the farm as a whole because of rebuilding a fence removed; third, depreciation of the value of the land as a whole because of additional fences to be built, repaired, and replaced in the future; fourth, depreciation in the value of the whole farm because additional territory is thrown into the highway from which appellee will necessarily have to cut or otherwise remove weeds, under the state law; and, fifth, depreciation in the value of the whole land because of the additional inconvenience, labor, and cost in driving cattle from one portion of the aforesaid land across the new highway to other portions thereof. In order that the facts may be understood by the reader, there is here inserted an outline of the farm showing the six separate and distinct irregular tracts severed by the rights of way of the Chicago, Milwaukee Railway, the Chicago, Burlington & Quincy Railroad, and the two old public highways:

IMAGE

These railroad rights of way and the two old public highways, shown upon the above plat, were there before the institution of condemnation proceedings by the appellant.

After obtaining the land for $145 an acre in 1926, as before explained, the appellee claims to have improved the soil by tilling portions of the farm, and putting lime fertilizer over all or portions of the entire tract. Therefore it is contended by appellee that the land is more valuable now than when purchased in 1926. Although witnesses admitted there has been some depreciation of land values in the community since 1926, yet some of them, testifying for appellee, declared the land taken for the new right of way purposes was worth, at the time of the condemnation, $300 per acre. Furthermore, six witnesses for appellee fixed the difference in the value of the farm immediately before and after the condemnation at from $20 to $30 per acre. On the other hand, appellant's witnesses fixed the difference in value at a greatly reduced figure. Error is assigned by the appellant because the district court improperly admitted certain evidence, erroneously instructed the jury, and also omitted the giving of a necessary instruction. Those propositions will now be considered in the following order.

[1] I. Nowhere in its instructions did the district court tell the jury on which party rested the burden of proof. This omission to thus instruct is assigned as error by the appellant.

Manifestly the district court should have placed the burden of proof in this regard upon appellee, even though the cause is tried de novo in the district court, Even though a trial is de novo, the party carrying the burden of proof must fully perform his duty in that regard. The appellant, as required by the Code, started the machinery which resulted in establishing, through the aforesaid commission, the damages for condemnation purposes. But appellee was not satisfied therewith. Therefore he appealed to the district court from the finding of the commission in his attempt to increase the amount to be paid by the appellant. Thereby he assumed the burden of proof in the district court. Section 7841 of the 1927 Code reads: “The appeal shall be docketed in the name of the owner of the land, or of the party otherwise interested and appealing, as plaintiff, and in the name of the applicant for condemnation as defendant, and be tried as in an action by ordinary proceedings.”

Chapter 213 of the Acts of the Regular Session, Forty-Third General Assembly, now section 7841-c1 of the 1931 Code, went into effect April 18, 1929, more than thirty days before the petition was filed in this cause. That chapter provides: “A written petition shall be filed by the plaintiff on or before the first day of the term to which the appeal is taken, stating specifically the items of damage and the amount thereof. The defendant shall file a written answer to plaintiff's petition, or such other pleadings as may be proper.”

Thus it is seen that, because the landowner seeks to change the amount of his recovery fixed by the commission, he is designated on the appeal as plaintiff, and the petitioner for condemnation is referred to as defendant. Also the plaintiff is required to file a petition setting forth specifically the items of damage and the amounts thereof. Likewise, the petitioner for condemnation is commanded to file an answer or other pleading, as may be proper.

[2] Why is this duty of pleading as plaintiff cast upon the appellee if the resulting burden of proof does not accordingly follow? Upon him who must affirmatively plead always falls the burden of proof. Under section 10940 of the 1927 Code, “proceedings in civil actions may be of two kinds, ordinary or equitable.” Because of the statute above quoted, the proceedings in the case at bar shall be prosecuted as “ordinary.” How is an action by ordinary proceedings tried? Obviously, under section 10943 of the 1927 Code, it must be prosecuted by the plaintiff. In order for the plaintiff to prosecute the action, as thus contemplated, he must carry the burden of proof to support the allegations of his petition.

For the purpose of obtaining uniformity in proceedings, it is declared in section 10950 of the 1927 Code: “The provisions of this code concerning the prosecution of a civil action apply to both ordinary and equitable proceedings unless the contrary appears, and shall be followed in special actions not otherwise regulated, so far as applicable.” When interpreting the evident intent of the Legislature in the premises, it is also essential to consider section 11180 of the 1927 Code. There it is said: “When * * * the allegation of the claim or defense to which the proof is directed is unproved in its general meaning, it shall * * * be * * * a failure of proof.” If, then, the appellee, who, under chapter 213, had the burden of proving the amount and kind of damages suffered by him, did not perform the duty thus imposed, he could not recover. The Legislature has control of these proceedings and can require pleadings and direct where the burden of proof shall be. Exercising that right, the Legislature, by its acts aforesaid, clearly placed the burden of proof, as well as pleading, upon the appellee. Consequently the district court should have instructed the jury to that effect.

[3][4][5] II. Complaint is also made by the appellant because the district court, without qualification, permitted the appellee to prove a specific sum as the increased cost demanded in the future to remove weeds from the additional right of way along appellee's farm on the new highway.

Proper objection was made by the appellee to the introduction of this evidence. The witness answered by naming a definite sum of money. Undoubtedly it is proper for the appellee to show the difference in the value of his farm immediately before and immediately after the condemnation. When doing that, the appellee may show in evidence, if he can, the fact that there will be an additional burden upon the land after the condemnation because of the statutory duty upon him to remove weeds along the increased right of way. Nevertheless, when so doing, the appellee, under the facts and circumstances here revealed, cannot ask his witness to speculate and guess at a specific sum that it may cost to remove imaginary weeds which may never exist in fact. There was no foundation whatever laid for the introduction of this testimony, and consequently the witness should not have been permitted to answer the aforesaid question.

[6][7][8] III. An exception is likewise taken because the district court, over appellant's objection, permitted appellee to show by witnesses the specific yearly added sum of money which it will cost the latter to hire men and furnish labor to drive his cattle back and forth over the new highway.

These witnesses were permitted to answer, and, when so doing, they stated the specific sum of...