Simpson v. Iowa State Highway Commission

• Decision Date: 25 February 1972
• Docket Number: No. 54650,54650
• Citation: 195 N.W.2d 528
• Parties: Eugene R. SIMPSON et al., Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
• Court: Iowa Supreme Court

Page 528

195 N.W.2d 528

Eugene R. SIMPSON et al., Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.

No. 54650.

Supreme Court of Iowa.

Feb. 25, 1972.

Richard C. Turner, Atty. Gen., James F. Petersen, Sp. Asst. Atty. Gen., and John L. Kiener, Asst. Atty. Gen., for appellant.

Prichard & Prichard, Onawa, for appellees.

BECKER, Justice.

Appeal from condemnation commission's award of damages for the taking by the Highway Commission of an easement to construct and maintain jetties near a highway bridge. The case was tried to the court which awarded condemnee a judgment of $39,200 and $5200 attorney fees. The Highway Commission appeals both awards. Reversed and remanded.

This is a somewhat unusual condemnation case. The highway department felt it needed an easement to construct jetties in the Maple River in Monona County and condemned an easement over an irregularly shaped 2.8 acres for that purpose. Neither party contends the department condemned the fee simple title to the area.

Maple River is a nonmeandered, nonnavigable stream. Therefore the condemnees own the entire stream bed. There is no dispute on this point. Cf. Watt v. Robbins, 160 Iowa 587, 601, 142 N.W. 387 (1913); Braden v. Board of Supervisors, 261 Iowa 973, 976, 157 N.W.2d 123 (1968).

The condemned tract was carved from a 27-acre tract owned by plaintiff partners and used by them as a gravel pit. They had purchased the 27 acres in two parcels in 1965 and 1966 for the total sum of $7500 or about $280 per acre. About two years later the condemnation commission awarded $345 damages to the 27-acre tract. The court awarded damages of $39,200. Understandably the State appeals asserting excessive damages and other errors.

The damage evidence is shown below:

                (PLAINTIFFS-
                 APPELLEES'
                 WITNESSES)     BEFORE    AFTER    DAMAGES
                B. L. PETERS   $210,000  $168,000  $40,000-
                                                    42,000
                

(DEFENDANT-

APPELLANT'S

WITNESSES)

JOHN D.

INGRAHAM $ 99,995 $ 99,670 $ 325.

FRANK D. HELM $ 50,000 $ 47,800 $ 2,200.

Trial Court's

judgment $39,200

These large discrepancies are almost wholly due to plaintiff Peters' treatment of the entire 2.8 acres as a gravel pit and Mr. Ingraham's treatment of the entire area as farm land. Mr. Helm considered the gravel pit aspect but limited his estimate of the damages to the property as a gravel pit to about $2000.

I. Commission's first assignment of error goes to excessive damages. Our examination of the evidence is controlled by Townsend v. Mid-America Pipeline Company, 168 N.W.2d 30, 33 (Iowa 1969):

'Dealing with that subject in Shover v. Iowa Lutheran Hospital, 252 Iowa 706, 718, 107 N.W.2d 85, 92, this court said: 'In considering the contention the verdict is so excessive as to shock the conscience and show it is the result of passion and prejudice we must take the evidence in the aspect most favorable to plaintiff which it will reasonably bear. We must also give weight to the fact the trial court, with the benefit of seeing and hearing the witnesses, observing the jury and having before it all the incidents of the trial, did not see fit to interfere. Fredrickson v. Heline, 1960, 252 Iowa 92, 106 N.W.2d 74, and citations. * * *."

If there is substantial evidence to support the findings of fact we do not reverse on this review at law. Rule 344(f)(1), Rules of Civil Procedure.

Here the evidence is clear that the easement condemned made it impossible for the owners to use the 2.8-acre tract as a quarry.

The evidence equally supports a finding that the 27-acre tract, when used as a quarry, had a value of at least $14,000 per acre. Comparable sales of property containing gravel suitable for quarrying purpose, similar to the property in question and within seven miles of it, were shown at $15,000 per acre. It is true the comparable sales were on a one-acre-at-a-time basis. However, three of these sales were in the development of a single quarry and could fairly be said to be comparables.

We note parenthetically that plaintiffs' only expert evidence came from one of the plaintiffs. Plaintiffs might well have used an outside expert. However, the record showed Mr. Peters to be qualified in the field of valuation of land suitable for gravel pits and substantially supported his valuation opinions.

The evidence, viewed in the light most favorable to upholding the verdict, supports the finding that use for quarry purpose was the highest and best use of the land; the quarrying operation on the 2.8-acre tract was effectively eliminated by the taking and the resultant damage to the 27-acre tract was $39,200.

II. Defendant next complains of the court's failure to consider the impact of the jurisdiction and possible action of the Iowa Natural Resources Council on plaintiffs' right to remove the valuable sand and gravel.

In Paragraph 7 of their petition plaintiffs claimed a gravel deposit was located on the land condemned, the condemnation caused damages by reason of the loss of 2.8 acres of gravel deposit which at the time condemned had a reasonable market value of $15,000 per acre. Defendant denied Paragraph 7 and by amendment alleged the Iowa Natural Resources Council has control of all flood plains and flood ways in the State of Iowa under section 455A.33, Code, 1966. The paragraph then went on to state:

'a. Work on said flood plain and/or flood way cannot restrict the capacity of the flood way to create more than one foot of back water.

'b. That provisions must be made to retain the channel of the Maple River at its present location or approximately so by one or more of the following methods:

(1) Minimum of set back of 75 to 100 feet from the channel bank depending on the condition and potential problems is required in connection in any sand and gravel operation or

(2) protective measures must be made to control banks and prevent the change of stream or river courses if closer than the minimum distance or set back is allowed by the Council.'

By way of reply plaintiffs admitted the Iowa Natural Resources Council has jurisdiction over the floodways of the State but denied the existence of the detailed restrictions pled by defendant. Further they pled the Natural Resources Council's restrictions would have to be reasonable restrictions that plaintiffs were prepared to meet.

Under the foregoing pleading defendant kept insisting on its right to inject the impact of the Iowa Natural Resources Council jurisdiction into the case as such jurisdiction affected the damage issue. The court consistently ruled adversely. The rulings are understandable in light of the following conclusion in the court order:

'In its amended answer the Defendant stated that the flood plane of the Maple River is under the control of the Iowa Natural Resources Council. The prayer in the amended answer asks for the relief asked for 'in its original answer', which is a request that the Plaintiffs' Petition be dismissed. The amended answer is a plea in complete denial of the Plaintiffs' Petition, and does not constitute a special defense in mitigation of damages and cannot be taken into consideration by the Court for that purpose under the evidence and the pleadings.'

We hold this conclusion to be prejudicially erroneous.

Plaintiffs alleged their 27 acres was devalued from $210,000 before condemnation to $168,000 immediately thereafter. Clearly, both from their pleading (Paragraph 7 above) and their proofs, the important element in this drop was denial of the right to remove the gravel from the 2.8 acres. The allegations and theory were entirely proper and the burden of proof was on plaintiffs.

The presence of mineral deposits in land is a proper element of damage. If reasonable before and after market values can be determined this is simply one of the elements which form a basis for such valuation. Townsend v. Mid-America Pipeline Company, supra. If no market value can be determined such deposits are an element in determining intrinsic or actual value. Comstock v. Iowa State Highway Commission, 254 Iowa 1301, 1310, 121 N.W.2d 205 (1963). In either case all of the factors affecting the values involved are necessary and relevant. In Townsend v. Mid-America Pipeline we quoted Comstock as follows:

'In Comstock v. Iowa State Highway Commission, 254 Iowa 1301, 121 N.W.2d 205, this court was confronted with a similar question. There an expert witness testified he had used quantities, production costs, and sales price of sand and gravel in arriving at a damage figure in connection with a condemned leasehold. The figures used by him were startlingly similar to computations under the unit rule. In resolving the problem we said, 254 Iowa at 1308, 121 N.W.2d at 209: 'As hereinafter discussed the so-called unit rule is not the measure of damages. Neither is the contemplated profit from the use of real estate. All of the various factors, however, may be considered in determining before and after value. Multiplying production units by the market price per unit does not fix value but the producing ability of real estate has definite bearing on value. " (Loc. cit. 168 N.W.2d at p. 34).

In Van Horn v. Iowa Public Service Company, 182 N.W.2d 365, 371 (Iowa 1970), we said:

'It follows, that in order to establish this diminished value the condemnee's first burden is to substantiate the market value of his property before its appropriation. Any factor that will impress a willing buyer in purchasing the land, if otherwise competent, is both material and relevant for this purpose. Johnson County Broadcasting Corp. v. Iowa State Highway Comm., 256 Iowa 1251, 1253, 130 N.W.2d 707, 708--709 and authorities cited. Thus, a landowner is permitted to show all competent facts which an owner would properly and naturally press upon the attemption of a buyer with whom he is negotiating a sale and all other competent facts which would naturally influence a person or ordinary prudence desiring to purchase--not as affording a measure of recovery but as...