Simkins v. City of Davenport, 56387

• Decision Date: 29 August 1975
• Docket Number: No. 56387,56387
• Citation: 232 N.W.2d 561
• Parties: Everett E. SIMKINS and Myrtle M. Simkins, Appellees, v. CITY OF DAVENPORT, Iowa, a Municipal Corporation, Appellant.
• Court: Iowa Supreme Court

Page 561

232 N.W.2d 561

Everett E. SIMKINS and Myrtle M. Simkins, Appellees, v. CITY OF DAVENPORT, Iowa, a Municipal Corporation, Appellant.

No. 56387.

Supreme Court of Iowa.

Aug. 29, 1975.

Richard A. Larsen and Stephen L. Schalk, of Larsen & Schalk, Davenport, for appellant.

Lane & Waterman, Davenport, for appellees.

Heard before MOORE, C.J., and MASON, REES, HARRIS, and McCORMICK, JJ.

MASON, Justice.

This appeal arises out of a condemnation trial in the Scott district court. The jury returned a verdict assessing damages in favor of Everett E. Simpkins and his wife Myrtle M., the landowners, based on a partial taking of their property. The condemnor, City of Davenport, appeals from the judgment for costs and the ascertainment of damages in the amount of $105,000. Section 472.23, The Code.

Plaintiff, Everett E. Simkins, owns a service station located on the northwest corner of the intersection of Kimberly Road (State Highway 6) and Harrison Street (Northwest Boulevard) in Davenport. Plaintiff, Myrtle M. Simpkins, had a dower interest in the property.

During the summer of 1972, the City began the acquisition of land abutting Kimberly Road in order to widen the existing street, the major east-west thoroughfare in Davenport, to a divided four-lane highway. In this project Harrison Street was to be similarly widened to a divided four-lane highway. The construction involved the fee-title taking of 5,298 square feet along the front of plaintiffs' property on Kimberly Road, a construction easement for 1,678 square feet, the reduction of a 210 foot access on Kimberly Road to one 35 foot controlled access and reduction of two 35 foot accesses on Harrison Street to one 45 foot controlled access.

Negotiations between the parties broke down and the City convened a sheriff's jury pursuant to chapter 472, The Code, to appraise the property and assess damages. Plaintiffs were awarded $49,000. They appealed to the district court from the appraisal and award of damages claiming damages in the amount of $150,000.

The central issue presented by the City's appeal is the admissibility of certain evidence pertaining to the construction of median strips on the two streets as they affect the value of plaintiffs' property as a service station after condemnation.

Preceding trial in the district court the City filed a motion for advance ruling on evidence, wherein it sought to exclude evidence relating to the median strips, since such placement is a reasonable exercise of the police power in the regulation of traffic and safety and is not a basis for compensable damage. The City furthermore wished to exclude evidence of the restriction of access to the service station as a measure of damage, since in the interest of public safety the City had the power to reasonably restrict such access. A third request, not relevant to the issues before this court, sought the exclusion of evidence pertaining to loss of profits. The trial court overruled the motion for the reason these matters could be controlled by proper instructions.

Plaintiffs then proceeded to present their case. Everett Simpkins testified over objection as to the physical effect the Medians wuld have upon the ingress and egress of vehicles at his station. He estimated the value of his property was 230 to 250 thousand dollars before the condemnation, and 70 to 80 thousand dollars afterwards. It was further adduced the property would have virtually no value as a service station due to reduced accessibility.

Plaintiffs' son, William, testified traffic traveling east on Kimberly Road would have no access to the station after the new construction and the entrance and exit from Harrison Street would be at best hindered. The witness communicated the extreme importance of access in relation to service station uses and stated the closing of the Harrison Street and Kimberly Road Accesses would render the property worthless as a service station. It was related the adverse effect of Medians on a service station in another part of town was tremendous and that another station actually closed.

Walter Wulf, a valuation expert for plaintiffs, testified over objection the Medians would either put a service station out of business or would reduce business by 50 percent. He further testified over defendant's objection the medians when combined with the loss of access would render it impractical to use the property as a service station.

Martha Mae Allen, plaintiffs' expert on service station operations, testified that prior to condemnation there was no station in Davenport more attractive than plaintiffs' from a business standpoint. As access is of prime or vital importance to the maintenance of healthy service station business, Miss Allen declared she would neither recommend nor consider leasing the property after the condemnation. This opinion was repeated over objection when asked what she thought of the medians. The witness' skepticism was based on her personal knowledge of the effects medians and reduced access have on the service station business.

Upon cross-examimation, Miss Allen agreed the loss of value would not be as great if only the medians were installed (i.e. without the reduction of access to the two streets). The witness knew of two stations whose business was damaged by the construction of medians.

Plaintiffs' principal evaluation witness was Edmond Fisher, who stated the before and after condemnation values of the property were $205,000 and $83,000, respectively. The damage, in other words, was $122,000. Fisher opined there was no better service station site than plaintiffs' prior to the condemnation but stated the reduction in size of the facility as well as of the amount of access rendered a station use not the highest and best use after condemnation.

Upon cross-examination, Fisher said while he considered the median strips in his evaluation of the property, it did Not change his outcome because the increased traffic would offset the medians' effect.

Kenneth Meeks, Iowa State Highway Commission engineer, testified over objection the medians on both streets ran well beyond plaintiffs' property. Meeks also stated the medians were designed for present needs, in addition to a projected 50 percent increase of traffic over the next 20 years.

On cross-examination, Meeks stated the purpose of medians and the limitation of access were for safety and that such were presently necessary at the instant intersection.

Defendant's evaluation witness, John H. Faris, stated the difference in value of the property before and after condemnation was $75,850. It was brought out on cross-examination the reduction of access would affect the property value. Furthermore, Faris admitted over objection the medians would affect the free flow of traffic in and out of the facility.

At the close of evidence, the trial court submitted instruction 11, which provided in pertinent part:

'* * *

'It further appears without contradiction that the existence of the median strips is dictated in the area where they exist adjacent to the plaintiffs' property and for the declared purpose of providing safety and convenience to the traveling public. Therefore, you may not consider their existence, in and of itself, as a factor to be considered in determining the value of the property after condemnation, but you may give consideration to their existence because they do reduce the flow of potential traffic onto the plaintiffs' service station on both sides of the street in bearing upon whether the reduction in means of ingress and egress at the respective curb lines of his property was unduly impaired or lessened.'

Defendant objected to the instruction as prejudicial in that no evidence had been introduced at trial showing the placement of the medians was arbitrary, unreasonable, or illegal. The trial court overruled the objection.

I. One of the items for which plaintiffs sought compensable damages on appeal to the district court was the loss of access to Kimberly Road and Harrison Street. Plaintiffs do not contend they have been totally deprived of access to these highways but insist defendant had materially or substantially impaired or interfered with their property rights in this respect.

Although a landowner whose property abuts upon a public highway is not entitled to access to his land at all points between it and the highway, such landowner does have a property right in the nature of an easement appurtenant to ownership of free and convenient ingress to and egress from his property to the particular highway upon which the land abuts which can neither be entirely taken from him nor substantially impaired or interfered with by governmental action without just compensation. Iowa State Highway Comm. v. Smith, 248 Iowa 869, 874--876, 82 N.W.2d 755, 758--759, 73 A.L.R.2d 680; Jones v. Iowa State Highway Comm., 259 Iowa 616, 623, 144 N.W.2d 277, 281; Linge v. Iowa State Highway Comm., 260 Iowa 1226, 1232--1233, 150 N.W.2d 642, 646--647; Stom v. City of Council Bluffs, 189 N.W.2d 522, 525--528 (Iowa 1971) and authorities cited in these opinions.

Both sides appear to recognize the foregoing principles. However, the controversy centers on the factors which may be considered by the trier of fact in measuring the landowners' compensable damages.

The record discloses a median strip dividing the four lanes on Kimberly Road extended from the intersection of Kimberly and Harrison Street approximately 735 feet west on Kimberly which was well beyond plaintiffs' property. A median strip dividing the four lanes on Harrison Street ran from the intersection of Harrison and Kimberly north on Harrison approximately 465 feet which was well beyond the north edge of plaintiffs' land.

The admission of testimony offered by plaintiffs regarding placement of median strips on Kimberly Road and Harrison Street gives rise to the first problem involved in the issue presented by this appeal.

We treat defendant's motion...