Schoonover v. Fleming
| Decision Date | 06 April 1948 |
| Docket Number | 47162. |
| Citation | 32 N.W.2d 99,239 Iowa 539 |
| Parties | SCHOONOVER et al. v. FLEMING et al. |
| Court | Iowa Supreme Court |
Baldrige & Bailey, of Washington, for appellees.
Richard A. Stewart, of Washington, and R. L. Read and A. B. Howland both of Des Moines, for appellants.
The land involved in this proceeding consists of about 159 acres containing two tracts of nearly 80 acres each--one running north and south and the other running east and west cornering at the northwest corner of the lower tract, and other land. The whole tract is described as follows:
The right of way enters the east line of the north eighty, varies in width from 200 feet at the point of entrance, then widens to 250 feet, and at the depot grounds is 425 feet wide, and leaves the north eighty tract at or near the southwest corner of said tract, extending approximately in a northeast-southwest line. In all, the land taken through the north eighty, and immediately below the place where the buildings are located on the west line of said eighty, amounts to 12.7 acres.
The plaintiffs have owned the farm above described since 1940 but were tenants on the farm for several years prior to that time. The farm buildings were all located near the south end of the north tract, the residence being a two-story farm home in good condition. To the west of the farm is a rock-surfaced road running north to the north line of the land appropriated, thence northwest. The other buildings are two barns, corn and oat bins, a 50 foot silo, cow sheds, and other farm buildings. The farm itself varies in different parts in the quality of soil and other respects, there being in cultivation about 58 to 60 acres in different fields. It is crossed by a creek running through it irregularly from the north part of the west line through both eighties, and passing out of the farm not far from the southeast corner of the south eighty acres. There is a good well on the farm near the farm buildings. The farm, while not well adopted for the cultivation of crops, was adapted for and used as a dairy farm. All the buildings were in good condition at the time of trial.
The stream through the land has overflowed at various times. While some parts of the farm are level, others are rough. In a general way it may be said that a little over a third of the land may be considered as suitable for growing crops.
In the construction of the railroad through the Schoonover land there was a cattle pass 66 feet long with approaches erected by the railroad company about 200 feet west of a former roadway which had been used in passing from the north end of the farm to the south end. Stock can thus pass to and from the barn lots and the pasture in the south 80 acres without opening gates. In moving the farm equipment back and forth between the land on the north side of the railroad track and that on the south side it is necessary to go out on the graveled Wayland road an additional distance of 500 or 600 feet of travel. It is not claimed that the equipment can be transferred from the north and south sides of the land through the cattle pass. The price of the land when bought in 1940 was $8000, all of which was borrowed.
There was evidence to the effect that the purchase was at a favorable figure to the purchaser, and that it was, at the least, a bargain at the price at that time. However this may be, a fair valuation in 1940 would be much less than the market value at the time of condemnation. In fact the defendants say, in argument: 'We concede, of course, that appellees are entitled to the benefit of the bargain which they made when the land was purchased, and that between the date of purchase in 1940 and the condemnation date of June 26, 1946, there was a very substantial increase in market value of farm lands, generally.'
The dispute was as to the amount of damage. It was conceded that the plaintiffs were entitled to damages, but the parties were unable to agree as to the amount. Testimony of witnesses as to value was offered on both sides, and of course varied considerably as to the amount. Plaintiffs' five value witnesses, while not agreeing in all respects as to value, on the average, fixed the value per acre before condemnation at $130, and after condemnation on the average at $61 per acre, making the average of total value before condemnation $20,670, and after condemnation $8920. The average of their testimony therefore as to the amount of damage to the farm as a whole was $11,750.
The testimony of defendants' witnesses of course fixed the damage at a great deal smaller figure. The jury returned a verdict fixing the damage at $8795, which was less than that awarded by the sheriff's jury in condemnation.
1. The first error relied upon by the defendants for reversal is that the court erred in overruling defendants' motion for a new trial because the verdict returned by the jury was so grossly excessive as to indicate passion and prejudice to the defendants on the part of the jury. We cannot agree with this contention of defendants.
The jury had before it all the facts--the evidence as to the taking by the defendants of 12.7 acres of what was probably the best crop land on the farm. The crossing of the farm at about the middle point by a railroad line would reduce the market price. There were irregular tracts both north and south of the line of the right of way which made cultivation more difficult. The improvements were not as accessible to all parts of the farm, and in moving from the north to the south part of the farm especially there was extra labor in transferring the equipment. There were the ordinary inconveniences in such cases from noise, cinders, smoke and dirt, and possible injury to persons, with all the other inconveniences and dangers incident to the close proximity of the railroad track and the separation of the tracts of the farm. All these questions of damage, and the extent thereof, were for consideration by the jury, with the consideration that they were there for all time. To some possible buyers some of the elements of damage would not be of great importance. By others, they would be considered greatly more detrimental. Thus, the question of market value must necessarily vary in the minds of many people. In the consideration of the question of damages we find nothing in the record that would indicate passion or prejudice. The final decision in all these cases must be for the jury. We cannot agree with the defendants that the size of the verdict in this case is indicative of passion and prejudice; that it is so far out of line as to so appear. The amount found as damages was well within the testimony of the witnesses. It is not the office of this court to determine the amount of the damage where, as in this case, it is fully supported by testimony of competent witnesses, and of course we cannot measure the fairness of the verdict by an amount per acre of the jury's verdict. The inconvenience and damage to the land as a whole, and therefore to the market value, is the criterion, and this of course is the office of the jury.
Plaintiffs argue, and we think correctly, that where the evidence is in conflict and the verdict has ample support in the evidence, it is not proper for the appellate court to re-weigh the evidence and substitute its opinion of values for the determination of the jury. Plaintiffs cite Cutler v. State, 224 Iowa 686, 278 N.W. 327, and cases cited therein; Cory v. State, 214 Iowa 222, 242 N.W. 100. See, also, Kukkuk v. City of Des Moines, 193 Iowa 444, 187 N.W. 209; Stoner v. Iowa State Highway Commission, 227 Iowa 115; 287 N.W. 269; Besco v. Mahaska County, 200 Iowa 684, 205 N.W. 459; Kosters v. Sioux County, 195 Iowa 214, 191 N.W. 993; Darst v. Ft. Dodge, Des Moines & Southern Ry. Co., 194 Iowa 1145, 191 N.W. 288; Kemmerer v. Iowa State Highway Commission, 214 Iowa 136, 241 N.W. 693. The foregoing cases, with others cited by the plaintiffs, support their argument.
On the other hand the following cases are cited by the defendants. Campbell v. Iowa State Highway Commission, 222 Iowa 544, 269 N.W. 20, a case for a condemnation of a highway in which there could be little doubt that the verdict was excessive; Jenkins v. State Highway Commission, 208 Iowa 620, 224 N.W. 66, in which the amount also appears to be excessive; Luthi v. Iowa State Highway Commission, 224 Iowa 678, 276 N.W. 586, as to this case we have no doubt as to the excessiveness of the verdict. But, as plaintiffs argue, the comparison of the verdict in question with the verdicts of other cases, decided in other localities under different conditions and at different times, to determine whether the verdict is excessive or not, is not only improper but of little value for the reason that it is difficult, if not impossible, to have two cases of condemnation in which the elements of damage or the conditions are identical. We see no grounds upon which we could hold that the award was so excessive as to show prejudice or passion on the part of the jury.
II. Defendants allege that the court erred in commenting upon the weight of the evidence while ruling upon objections to the cross examination of the witness C. V. Crull, which comments were of such nature as to clearly indicate to...
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