Rhodes v. Iowa State Highway Commission

• Citation: 94 N.W.2d 97,250 Iowa 416
• Decision Date: 13 January 1959
• Docket Number: No. 49617,49617
• Parties: J. Reed RHODES and Ruth R. Rhodes, Plaintiffs-Appellees, v. IOWA STATE HIGHWAY COMMISSION, Defendant-Appellant, Mott Construction Co., and Booth & Olson, Inc., a Corporation, Defendants.
• Court: Iowa Supreme Court

Page 97

94 N.W.2d 97

250 Iowa 416

J. Reed RHODES and Ruth R. Rhodes, Plaintiffs-Appellees, v. IOWA STATE HIGHWAY COMMISSION, Defendant-Appellant Mott Construction Co., and Booth & Olson, Inc., a Corporation, Defendants.

No. 49617.

Supreme Court of Iowa.

Jan. 13, 1959.

C. J. Lyman, Sp. Asst. Atty. Gen., James E. Thomson, Gen. Counsel, Ames, for Commission, Bray, Carson & McCoy, Oskaloosa, for appellant.

Gilbert & Stoddard, Oskaloosa, for appellees.

HAYS, Justice.

Appeal under Rule 332, R.C.P., 58 I.C.A., from order overruling Special appearance of defendant State Highway Commission.

Plaintiff's petition is in two divisions.

Division I asks that said defendant be enjoined from proceeding with the construction on Highway 92 on the ground that such construction constitutes a 'taking of their property' in violation of Section 18, Article I, Constitution of Iowa, I.C.A. In substance, the petition states plaintiffs own certain real estate abutting on said highway on the south. In order that this highway abutting said property might be widened, they sold under contract to said Commission, acting for the State of Iowa, a strip of said real estate running parallel with the highway and extending south from its south boundary 120 feet. Possession was taken immediately, the construction work was commenced and full compensation, as set forth in the written contract of sale, has been paid. Located on said strip was a dwelling house and a commercial building, which, under the terms of the contract, plaintiffs were to move off the premises prior to March 30, 1958 and any building not so moved to become the property of the State of Iowa. The petition further alleges that pursuant to the terms of said agreement, they moved the buildings to a place designated by said Commission in order that the north end thereof would be not less than 10 feet south of the south boundary of the new highway. That due to error by said Commission, the buildings when moved were located on said south boundary line with a part thereof overhanging the same, and that the acts and proposed acts of the commission in the construction of the new highway is a 'taking without just compensation.'

Division II of the petition alleges that the written contract, due to a mistake, fails to express the true intent of the parties. That under the true contract the Commission agreed to designate the place to which said buildings should be moved. That when moved they would be located not less than 10 feet south of the new south boundary of said highway and for which moving the State was to pay in addition to the amount paid for the land. Due to an error in measurement by the Commission the buildings, when moved, were located on the south boundary, instead of 10 feet south thereof, with part overhanging. That the payment of the amount stated in the contract was based upon the cost of moving said buildings to the point erroneously located by said Commission, and hence the payment of the amount designated in the contract does not constitute a full payment in accord with the terms of the true contract. That in order that the contract conform to the terms of the true contract it should be reformed by changing the agreed compensation of $13,328.40 to $29,694.80.

Defendant Highway Commission by its special appearance attacks the jurisdiction of the court, primarily upon the basis of it being a suit against the sovereign State of Iowa, acting in its sovereign capacity, and hence may not be sued.

I. All parties recognize the highway commission as an arm of the state, and that it cannot be interfered with by suit or other legal proceedings, when performing its official duties for the sovereign, without fraud, illegality, or in derogation of statutory authority. That the building of state highways is a function of the State must be conceded. However, in Hoover v. Iowa State Highway Commission, 207 Iowa 56, 222 N.W. 438, cited by Appellees, the rule is announced that where said commission in performing its statutory functions, acts without authority and illegally such action does not constitute an act by the state and one who by such illegal action is damaged, may have recourse in the courts of this state.

II. Under this rule, as to Division I, Appellees allege the taking of private property for public use without just compensation in violation of Section 18, Article I, Constitution of Iowa, relying upon Liddick v. City of Council Bluffs, 232 Iowa 197, 5 N.W.2d 361; and Anderlik v. Iowa State Highway Comm., 240 Iowa 919, 38 N.W.2d 605. Both cases adhere to the rule that material interference with the rights of ingress and egress, and of light, air and view of owners of property abutting on streets and highways is a taking of property of such owners for which compensation must first be made under Section 18, Article I of the Iowa Constitution. We recognize this rule and believe it to be a sound one but...